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Last updated January 2004
CHAPTER 1
DEFINITIONS AND
GENERAL PROVISIONS
§ 27A-1-1.
Definition of terms. Terms used in this title
mean:
(1) "Administrator," that person designated by the
secretary of human services to discharge the administrative functions of the
Human Services Center including the delegation of responsibilities to the
appropriate Human Services Center staff;
(2) "Appropriate regional facility," a facility
designated by the department for the prehearing
custody of an individual apprehended under authority of this title which is as
close as possible in the immediate area to where the apprehension occurred; and
is no more restrictive of mental, social, or physical freedom than necessary to
protect the individual or others from physical injury. In determining the least
restrictive facility, considerations shall include the preferences of the
individual, the environmental restrictiveness of the
setting, the proximity of the facility to the patient's residence, and the
availability of family, legal and other community resources and support;
(3) "Center," the
(4) "Danger to others," a reasonable expectation
that the person will inflict serious physical injury upon another person in the
near future, due to a severe mental illness, as evidenced by the person's
treatment history and the person's recent acts or omissions which constitute a
danger of serious physical injury for another individual. Such acts may include
a recently expressed threat if the threat is such that, if considered in the
light of its context or in light of the person's recent previous acts or
omissions, it is substantially supportive of an expectation that the threat
will be carried out;
(5) "Danger to self,"
(a) A reasonable expectation that
the person will inflict serious physical injury upon himself or herself in the
near future, due to a severe mental illness, as evidenced by the person's
treatment history and the person's recent acts or omissions which constitute a
danger of suicide or self-inflicted serious physical injury. Such acts may
include a recently expressed threat if the threat is such that, if considered
in the light of its context or in light of the person's recent previous acts or
omissions, it is substantially supportive of an expectation that the threat
will be carried out; or
(b) A reasonable expectation of
danger of serious personal harm in the near future, due to a severe mental
illness, as evidenced by the person's treatment history and the person's recent
acts or omissions which demonstrate an inability to provide for some basic
human needs such as food, clothing, shelter, essential medical care, or
personal safety, or by arrests for criminal behavior which occur as a result of
the worsening of the person's severe mental illness;
(6) "Department," the Department of Human
Services;
(7) "Essential medical care," medical care, that
in its absence, a person cannot improve or a person's condition may
deteriorate, or the person may improve but only at a significantly slower rate;
(8) "Facility director," that person designated to
discharge the administrative functions of an inpatient psychiatric facility,
other than the center, including the delegation of responsibilities to the
appropriate facility staff;
(9) "Informed consent," consent voluntarily, knowingly,
and competently given without any element of force, fraud, deceit, duress,
threat, or other form of coercion after conscientious explanation of all
information that a reasonable person would consider significant to the decision
in a manner reasonably comprehensible to general lay understanding;
(10) "Inpatient psychiatric facility," a public or
private facility or unit thereof which provides mental health diagnosis,
observation, evaluation, care, treatment, or rehabilitation when the individual
resides on the premises including a hospital, institution, clinic, mental
health center or facility, or satellite thereof. An inpatient psychiatric
facility may not include a residential facility which functions primarily to
provide housing and other such supportive services when so designated by the
department;
(11) "Inpatient treatment," mental health
diagnosis, observation, evaluation, care, treatment, or rehabilitation rendered
inside or on the premises of an inpatient psychiatric facility when the individual
resides on the premises;
(12) "Least restrictive treatment alternative,"
the treatment and conditions of treatment which, separately and in combination,
are no more intrusive or restrictive of mental, social, or physical freedom
than necessary to achieve a reasonably adequate therapeutic benefit. In
determining the least restrictive alternative, considerations shall include the
values and preferences of the patient, the environmental restrictiveness
of treatment settings, the duration of treatment, the physical safety of the
patient and others, the psychological and physical restrictiveness
of treatments, the relative risks and benefits of treatments to the patient,
the proximity of the treatment program to the patient's residence, and the
availability of family and community resources and support;
(13) "Mental health center," any private nonprofit
organization which receives financial assistance from the state or its
political subdivisions and which is established or organized for the purpose of
conducting a program approved by the department for the diagnosis and
treatment, or both, of persons with mental and emotional disorders;
(14) "Next of kin," for the purposes of this
title, the person's next of kin, in order of priority stated, is the person's
spouse if not legally separated, adult son or daughter, either parent or adult
brother or sister;
(15) "Physician," any person licensed by the state
to practice medicine or osteopathy or employed by a federal facility within the
State of
(16) "Resident," "patient," or
"recipient," any person voluntarily receiving or ordered by a board
or court to undergo evaluation or treatment;
(17) "Secretary," the secretary of the Department
of Human Services;
(18) "Severe mental illness," substantial organic
or psychiatric disorder of thought, mood, perception, orientation, or memory
which significantly impairs judgment, behavior, or ability to cope with the
basic demands of life. Mental retardation, epilepsy, other developmental
disability, alcohol or substance abuse, or brief periods of intoxication, or
criminal behavior do not, alone, constitute severe mental illness.
§ 27A-1-2.
Involuntary commitment. A person is subject to
involuntary commitment if:
(1) The person has a severe mental
illness;
(2) Due to the severe mental
illness, the person is a danger to self or others; and
(3) The individual needs and is
likely to benefit from treatment.
§ 27A-1-3.
Qualifications of mental health professionals. As
used in this title, the term, "qualified mental health professional",
means a physician licensed pursuant to chapter 36-4 or a member of one of the
professions listed in this section who has received a competency-based
endorsement as a qualified mental health professional from the Department of
Human Services. The following persons are eligible to apply for the
endorsement:
(1) A psychologist who is licensed
to practice psychology in
(2) A psychiatric nurse with a
master's degree from an accredited education program and two years of
supervised clinical experience in a mental health setting;
(3) A certified social worker with a
master's degree from an accredited training program and two years of supervised
clinical experience in a mental health setting;
(4) A person who has a master's
degree in psychology from an accredited program and two years of supervised
clinical mental health experience and who meets the provision of subdivision
36-27A-2(2);
(5) A counselor who is certified
under chapter 36-32 as a licensed professional counselor -- mental health; or
(6) A counselor who is certified
under chapter 36-32 as a licensed professional counselor and has two years of
supervised clinical experience in a mental health setting and who is employed
by the State of
(7) A therapist who is licensed
under chapter 36-33 as a marriage and family therapist with two years of
supervised clinical experience in a mental health setting.
Except as provided in § 36-4-20, each qualified mental
health professional shall meet all licensing and certification requirements
promulgated by the State of South Dakota for persons engaged in private
practice of the same profession in South Dakota. However, the private practice
licensure requirements for persons referred to in subdivisions (3) and (4) do
not apply to those employed by the State of
§ 27A-1-4.
Unlawful confinement of mentally ill as felony or
misdemeanor. Any person who intentionally and wrongfully places or
attempts to place any person in a facility for the mentally ill by any method
other than as prescribed by law is guilty of a Class 6 felony. Any person who confines any mentally ill person in any other
manner or in any other place than is authorized by law, is guilty of a Class 1
misdemeanor.
§ 27A-1-6. Neglect of duty by officer
or appointee as misdemeanor -- Liability for damages. Any officer required to
perform an act, and any person accepting an appointment under the provisions of
this title, who shall intentionally refuse or neglect
to perform his duty as herein prescribed, shall be guilty of a Class 1
misdemeanor, besides being liable to an action for damages.
§ 27A-1-7. Endorsements required for
qualification as mental health professional. After June 30, 1995, a person
may not function as a qualified mental health professional without having
either a temporary endorsement from the Department of Human Services as
provided in § 27A-1-8 or a competency-based endorsement as provided in §
27A-1-9. After
§ 27A-1-10.
Mental health setting. A mental health setting
is one in which the diagnosis and treatment of mental and emotional disorders
is the primary task of the mental health professional. A mental health setting
may be a clinic, hospital, social service agency, private professional service
provider, residential facility, mental health center, or other entity in which
a mental health professional provides diagnosis and treatment of mental and
emotional disorders.
CHAPTER 8
VOLUNTARY HOSPITALIZATION OF MENTAL PATIENTS
§ 27A-8-1.
Requirements for admission of voluntary patients.
The facility director or administrator may receive as a voluntary patient any
individual eighteen years of age or older who understands the nature of
voluntary inpatient treatment, is capable of giving informed consent, and
voluntarily executes a written application for admission, if the following
requirements are met:
(1) If, after examination by a staff
psychiatrist, the facility director or administrator determines that the
applicant is clinically suitable for inpatient treatment. In the event of the
unavailability of a staff psychiatrist, admission may be granted pending an
examination by a staff psychiatrist within one working day;
(2) A less restrictive treatment
alternative is inappropriate or unavailable;
(3) The individual is in need of and
will likely benefit from treatment which is available at the facility;
(4) The requirements in § 27A-8-15
have been met;
(5) The person does not have medical
needs which are beyond the capacity of the center or inpatient psychiatric
facility.
If a person eighteen years of age or older voluntarily seeks
admission to an inpatient psychiatric facility without any element of force,
duress, threat or other form of coercion and the facility director or
administrator determines, after the explanation required in § 27A-8-15, that
the person is incapable of exercising an informed consent to the admission, the
person may be admitted upon exercise of a substituted informed consent by a
guardian or a next of kin in accordance with § 27A-8-18 or 27A-8-19.
§ 27A-8-10. Immediate
discharge of adult voluntary patient after notice of intent to terminate.
Except as is provided in § 27A-8-10.1, a voluntary patient eighteen years of
age or over has the right to immediate discharge upon written notice of his
intention to terminate inpatient treatment. Upon informing a staff member of
the inpatient psychiatric facility of the intention to terminate inpatient
treatment, the facility shall promptly supply the patient with the required written
form.
§ 27A-8-10.1. Emergency
detention of voluntary inpatient after notice of intention to terminate.
If a written notice of termination of inpatient treatment is given to the
facility pursuant to § 27A-8-10, the notice is not withdrawn, and the facility
director or administrator or attending psychiatrist has probable cause to
believe that the patient requires emergency intervention under the criteria in
§ 27A-1-2 and should remain in the facility, the director or administrator or
attending psychiatrist may initiate a mental illness hold detaining the patient
for a period not to exceed twenty-four hours, not including weekends or
holidays, from the facility's receipt of the patient's written notice of
intention to terminate. The director or administrator shall immediately advise
the patient that he is being detained on a twenty-four hour mental illness hold
and explain the nature of such hold. The director or administrator shall
forthwith notify the chairman of the county board for the county where the
facility is located or a local peace officer of the time of receipt of the
notice to terminate, the time the hold was initiated, the circumstances
necessitating the hold, and the time and place the director or administrator or
attending psychiatrist will be available to file a petition pursuant to §
27A-10-1. This information shall also be made part of the signed petition, the
patient's medical records and be delivered to the patient. If a petition
pursuant to § 27A-10-1 is not filed with the chair within twenty-four hours of
the facility's receipt of the patient's written notice of intention to
terminate, the patient shall be immediately discharged. The twenty-four hour
period does not include weekends or holidays.
§ 27A-8-11.2.
Commitment of voluntary patient who has not applied
for release -- Reasons. An inpatient psychiatric facility director, the
center administrator or an attending psychiatrist may file a petition pursuant
to § 27A-10-1 for the commitment of a voluntary patient if clinically indicated,
even though a written notice of intention to terminate inpatient treatment has
not been received. Reasons for the filing of such petition shall be limited to
the following:
(1) The facility director, the
center administrator, or attending psychiatrist has probable cause to believe
that the patient meets the criteria in § 27A-1-2; and
(2) The patient, including a person
admitted upon exercise of a substituted informed consent by a guardian or a
next of kin pursuant to § 27A-8-1, is unwilling or unable to consent to
treatment deemed necessary by the treating physician and there are no other
appropriate treatments to which the patient is willing or able to consent; or
(3) The patient is unable or unwilling
to affirm consent to continued admission as required in § 27A-8-17.
§ 27A-8-14.
Notice to voluntary patients of release procedure -- Acknowledgment of
notice -- Display in wards. Upon voluntary admission, and at the end of the
first six months of hospitalization, and annually thereafter, the patient shall
be given a separate written notice of release procedures. In addition, a copy
of the written notice shall be given to any one other person designated by the
patient. The patient shall acknowledge deliverance of the notice in writing, or
an affidavit that he was so informed shall be attached to his record. Every
voluntary patient has the right to discharge upon request as provided in §
27A-8-10. Detailed release procedures in simple and nontechnical
language shall be permanently and prominently displayed in every psychiatric
ward.
§ 27A-8-15.
Explanation required prior to acceptance of voluntary inpatient --
Informed consent -- Application form. Before an individual is accepted for
voluntary inpatient treatment at an inpatient psychiatric facility, an
explanation shall be made to him of the nature of such status, including the
types of treatment available, and restraints or restrictions to which he may be
subject including possible conversion to involuntary status as provided in this
chapter together with a statement of his rights under this title.
An informed consent as defined in subdivision 27A-1-1(8)
shall be obtained orally and in writing upon an application form which shall
contain in bold print and simple language the substance of § § 27A-8-10,
27A-8-11.2, 27A-8-14, and 27A-8-10.1. In addition, the application form shall
include the following representations:
(1) The applicant understands that
his treatment will involve inpatient status;
(2) He is willing to be admitted to
the facility;
(3) He consents to such admission
voluntarily, without any element of force, duress, threat, or other form of
coercion.
The consent shall be part of the person's record. In
addition, a copy of the signed application and a written statement of the
patient's rights under this title shall be given to the patient and to any one
other person designated by the patient.
§ 27A-8-16. Person requesting voluntary
status to be admitted only as voluntary -- Referrals for those denied
admission. A person requesting voluntary admission to an inpatient psychiatric
facility, who is clinically suitable for voluntary
inpatient treatment, shall be admitted only on such voluntary status. The
facility director or administrator shall give to an individual who is denied
admission to the facility a referral to other facilities or programs that may
be able to provide the treatment needed by the individual.
§ 27A-8-17.
Assessment of need for continued admission -- Informed consent required
for continued admission -- Substitute informed consent. Thirty days after the
voluntary admission of a patient and every ninety days thereafter, the facility
director or center administrator shall review the patient's record and assess
the need for continued admission. If continued admission is indicated, the
facility director or center administrator shall consult with the patient and
request from the patient an oral and written affirmation of his informed
consent to continued admission. If a patient was admitted upon the substituted
informed consent of a guardian or next of kin as provided in § 27A-8-1, and
continues to be incapable of exercising an informed consent to continued
admission, a substituted informed consent to continuing admission shall be
obtained from the guardian or next of kin. The notification, request, and
affirmation shall become part of the patient's record. A patient's, next of
kin's, or guardian's failure to affirm his informed consent to continued
admission constitutes notice of an intention to terminate inpatient treatment
as provided in § 27A-8-10.
§ 27A-8-18.
Exercise of substituted informed consent by guardian. A guardian with
authorization by the appointing court may exercise a substituted informed
consent in accordance with the requirements in § 27A-8-15 for the sole purpose
of admission of a person to an inpatient psychiatric facility or the center.
Upon the exercise of such a substituted informed consent, the facility director
or center administrator may admit the person as a voluntary patient if the
criteria in subdivisions 27A-8-1(1) to (3), inclusive, are met and the guardian
and person have signed the application for admission required in § 27A-8-15.
The person is entitled to all rights accorded other voluntary patients by this
title, including those provided in § 27A-8-10.
§ 27A-8-19. Substituted
informed consent by next of kin -- Court hearing. The person's next of
kin may exercise a substituted informed consent in accordance with the
requirements in § 27A-8-15 for the sole purpose of admission to an inpatient
psychiatric facility or the center. Upon the exercise of such a substituted
informed consent, the facility director or center administrator may admit the
person as a voluntary patient for a period not to exceed fourteen days if the
criteria in subdivisions 27A-8-1(1) to (3), inclusive, are met and the family
member and person have signed the application for admission required in §
27A-8-15. During the fourteen-day admission period, the consenting next of kin
shall file a petition in circuit court for an order authorizing the admission.
If a petition is timely filed, admission of a nonobjecting
person may continue until the court hearing. If a petition is not filed, the
person shall be discharged upon the expiration of the fourteen-day admission
period. Notice of the hearing shall be delivered to the next of kin and the
person and their attendance at the hearing is required unless the court, for
good cause shown, excuses attendance by the person. The court may authorize the
admission upon a finding that the person is voluntarily assenting to admission
without any element of force, duress, threat or other form of coercion and that
the criteria in subdivisions 27A-8-1(1) to (3), inclusive, are met. The person
is entitled to all rights accorded other voluntary patients by this title,
including those provided in § 27A-8-10.
.
CHAPTER 10
EMERGENCY COMMITMENT OF DANGEROUSLY ILL PERSONS
§ 27A-10-1.
Petition asserting need for immediate intervention of
mentally ill person -- Contents. If any person is alleged to be severely
mentally ill and in such condition that immediate intervention is necessary for
the protection from physical harm to self or others, any person, eighteen years
of age or older, may complete a petition stating the factual basis for
concluding that such person is severely mentally ill and in immediate need of
intervention. The petition shall be upon a form and be verified by affidavit.
The petition shall include the following:
(1) A statement by the petitioner
that the petitioner believes, on the basis of personal knowledge, that such
person is, as a result of severe mental illness, a danger to self or others;
(2) The specific nature of the
danger;
(3) A summary of the information
upon which the statement of danger is based;
(4) A statement of facts which
caused the person to come to the petitioner's attention;
(5) The address and signature of the
petitioner and a statement of the petitioner's interest in the case; and
(6) The name of the person to be
evaluated; the address, age, marital status, and occupation of the person and
the name and address of the person's nearest relative.
The state's attorney or other person designated by the board
of county commissioners shall assist the petitioner in completing the petition.
No designee may be a member of the county board of mental illness. Upon
completion of the petition, the petition shall be forthwith submitted to the
chair of the county board of mental illness where such severely mentally ill person
is found. The term, forthwith, means that the petition shall be completed and
submitted to the chair at the earliest possible time during normal waking
hours. If a petition is not filed with the chair within twenty-four hours of
the apprehension of the person, the person shall be released. If the person is
released, the referring county shall provide the person with transportation to
the county where the person was taken into custody if the person so chooses. If
the county where the person was apprehended is served by a board other than the
board serving the county where the facility to which the person is transported
is located, a copy of the petition shall also be forthwith filed with the chair
of such board.
§ 27A-10-1.1.
Center as appropriate regional facility in certain
circumstances. If a competent person agrees to receive treatment at the
Human Services Center and the treatment is arranged with the center but upon
arrival the person does not consent to admission or if a person agrees to
accept treatment at the center and the treatment is arranged but upon arrival
the person is examined and found not competent to consent to admission, if
there is no next of kin available or if there is next of kin available but the
person does not consent to admission, and if the attending psychiatrist has
probable cause to believe that the person requires emergency intervention under
the criteria in § 27A-10-1, the center may be used as an appropriate regional
facility.
§ 27A-10-2.
Order for apprehension of subject -- Transportation to
appropriate facility -- Payment of expenses. After examination of a
petition filed under § 27A-10-1, the chair of the county board of mental
illness may order the apprehension and transportation by a law enforcement
officer or other designee of any person whom the chair has probable cause to
believe meets the criteria in § 27A-10-1 to an appropriate regional facility
other than the Human Services Center. No jail may be used for prehearing custody until the availability of other appropriate
regional facilities has been explored and exhausted. No person may be held in a
jail for longer than twenty-four hours on a mental illness hold alone.
If the alleged mentally ill person is a nonresident of the
state, the
If the facility to which the person is transported is in a
county served by another board of mental illness, a copy of the petition shall
be forthwith filed with the chair of such board. The referring county shall pay
any expenses incurred in apprehension and transportation of the person, subject
to reimbursement by the county ultimately proven to be the county of residence.
No lien may be placed against the person for the costs incurred in the
apprehension or transportation of the person.
§ 27A-10-3.
Apprehension by peace officer of person believed to require emergency
intervention -- Transportation to appropriate regional facility. A peace
officer may apprehend any person that he has probable cause to believe requires
emergency intervention under the criteria in § 27A-10-1. The peace officer
shall transport the person to an appropriate regional facility, as defined in §
27A-1-1, other than the
§ 27A-10-4. Petition on person
apprehended. After a law enforcement officer or other designee transports an
apprehended person to an appropriate regional facility pursuant to § 27A-10-3,
the law enforcement officer, a physician, or other person with personal knowledge
of the relevant facts shall complete a petition as provided in § 27A-10-1.
§ 27A-10-5.
Notification of rights upon custody, detention, or
filing of petition -- Notice to county board where person apprehended.
Immediately after a person is taken into custody pursuant to § 27A-10-2 or
27A-10-3, a hold is initiated pursuant to § 27A-8-10.1 or 27A-10-19, or a
petition is filed pursuant to § 27A-8-11.2, the person shall be notified both
orally and in writing of the following:
(1) The right to immediately contact
someone of the person's choosing;
(2) The right to immediately contact
and be represented by counsel;
(3) That the person will be examined
by a qualified mental health professional, designated by the chair of the
county board of mental illness, within twenty-four hours after being taken into
custody to determine whether custody should continue; and
(4) The right, if custody is
continued, to an independent examination and to a hearing within five days
after being taken into custody, within six days if there is a Saturday, Sunday,
or holiday within that time period, or within seven days if there is a
Saturday, Sunday, and holiday within that time period.
The person shall be further notified that the costs of any
post-commitment treatment, medication, compensation for the attorney appointed
to represent the person in any appeals proceedings, an additional examination
requested by the person pursuant to § 27A-11A-9, and a certified transcript or
tape of proceedings requested by the person pursuant to § 27A-11A-2 are that
person's responsibility and that a lien for the amount of these costs may be
filed upon the person's real and personal property to ensure payment.
The notice shall also be given forthwith to the county board
serving the county where the person was apprehended.
§ 27A-10-6.
Professional examination of person apprehended -- Report to chair --
Person released if not dangerous. Within twenty-four hours after apprehension
of any person who allegedly requires emergency intervention or a hold is
initiated pursuant to § 27A-8-10.1, or a petition is filed pursuant to §
27A-8-11.2, a qualified mental health professional designated by the chair of
the county board serving the area where the person is detained other than the
person bringing the petition or initiating the hold shall perform an
examination, including a mental status examination, of the person. Preceding
the examination, the qualified mental health professional shall identify
herself or himself to the person and explain the nature and purpose of the
examination, including the fact that it is being performed to assist in the
determination of whether custody should continue and that the examination may
be used as evidence in an involuntary commitment hearing. The qualified mental
health professional shall immediately report any findings to the chair of the
county board. The referring county shall pay any expenses of the examination by
the qualified mental health professional, subject to reimbursement by the
county ultimately proven to be the county of residence. No lien may be placed
against the person for the costs incurred in the qualified mental health
professional examination.
§ 27A-10-7.
Results of examination -- Person released upon failure of examination to
meet criteria -- Continued detention if criteria met. If the examination
required in § 27A-10-6 does not support a finding that the person meets the
criteria for involuntary commitment in § 27A-1-2, the person shall be released.
Following such release, the referring county shall provide the person with
transportation to the county where the person was taken into custody if the
person so chooses. These costs are subject to reimbursement by the county
ultimately proven to be the county of residence. No lien may be placed against
the person for the transportation expenses. If the chair of the county board
finds, as a result of the examination required in § 27A-10-6 and an
investigation of the petition for emergency intervention that the person meets
the criteria in § 27A-1-2, the chair may order that the person continue to be
detained in an appropriate regional facility including, if necessary, the
center, pending the hearing required in § 27A-10-8. No lien may be placed
against the person for the costs associated with detainment pending the
hearing.
§ 27A-10-7.1.
Chairman to make final determination where person
voluntarily admits himself. If the person is willing to admit himself to an inpatient psychiatric facility or other
treatment program on a voluntary basis and the admission is deemed suitable by
the facility or program, the chairman of the county board to whom the petition
was filed shall be notified and shall make the final determination.
§ 27A-10-7.2. Refusal of
prehearing admission. The center may refuse prehearing admission to a person under this chapter unless
the examination report and determination required in §§ 27A-10-6 and 27A-10-7
have been accomplished.
§ 27A-10-8. Time limit
for involuntary commitment hearing -- Payment of expenses. Within five
days after the person is taken into custody, within six days if there is a
Saturday, Sunday, or holiday within that time period, or within seven days if
there is a Saturday, Sunday, and holiday within that time period, the person
shall be provided an involuntary commitment hearing. The referring county shall
pay any expenses incurred by the board holding the hearing, including the
transportation of the person to the hearing, subject to reimbursement by the
county ultimately proven to be the county of residence. No lien may be placed
against the person for the expenses incurred by the board holding the hearing,
including the transportation of the person to the hearing.
§ 27A-10-9. Testimony
of independent qualified mental health professional on availability and
appropriateness of alternatives. The board of mental illness conducting
the involuntary commitment hearing as provided in § 27A-10-8 shall order
testimony by a qualified mental health professional independent of the
petitioner who shall assess the availability and appropriateness of treatment
alternatives including treatment programs other than inpatient treatment and
specifically including whether such programs are available at the mental health
center serving the area in which the person was apprehended or resides. Such
testimony shall include what alternatives are or should be made available, what
alternatives were investigated, and why any investigated alternatives are not
deemed appropriate. If the board determines that alternatives to inpatient
treatment are appropriate, commitment for inpatient treatment to the center or
other inpatient psychiatric facility may not be ordered and commitment shall be
to the least restrictive treatment alternative as required in subdivision
27A-10-9.1(3).
§ 27A-10-9.1.
Ninety-day initial commitment period -- Release on finding by county
board -- Transportation to county where taken into custody -- Transportation
costs -- Appeal of commitment order. Upon completion of the hearing provided in
§ 27A-10-8, the Board of Mental Illness may order the involuntary commitment of
the person for an initial period not to exceed ninety days if a majority of the
board finds by clear and convincing evidence, supported by written findings of
fact and conclusions of law, that:
(1) The person meets the criteria in
§ 27A-1-2;
(2) The person needs and is likely
to benefit from the treatment which is proposed; and
(3) The commitment is to the least
restrictive treatment alternative.
The board may commit the person to the
If the above findings are not made, the board shall order
that the person be released. Following such release, the referring county shall
provide the person with transportation to the county where the person was taken
into custody if the person chooses. The county ultimately shown to be the
county of residence shall reimburse the referring county for any transportation
costs. However, the provisions of chapter 28-14 do not apply. If the board
orders the involuntary commitment of the person, the board shall immediately
notify the person and the person's attorney of the right to appeal pursuant to
§ 27A-11A-25.
§ 27A-10-14.
Review hearing after involuntary commitment order -- Notice -- Rights
and procedures. Within ninety days after the involuntary commitment of a person
who is still under the commitment order, the county board of mental illness
which serves the county in which the person is receiving treatment shall
conduct a review hearing in the county to determine if the person continues to
meet the criteria in § 27A-10-9.1. Notice of the review hearing shall be given
to the person, and the person's attorney if the person
has retained counsel, at least ten days prior to the hearing. If the person has
not retained counsel at the time of the notice, the chair of the county board
shall immediately appoint counsel to represent the person.
At the time the notice of hearing is given, the person and
the person's attorney shall be informed of all evidence that will be considered
at the review hearing. Any evidence subsequently discovered shall be
immediately transmitted to the person and the person's attorney. The rights and
procedures applicable during an initial commitment hearing are applicable to
review hearings. A petition pursuant to § 27A-10-1 need not be filed.
The board of mental illness may order the continued
involuntary commitment of the person to the same or an alternative placement or
program for up to six months if a majority of the board finds by clear and
convincing evidence supported by written findings of fact and conclusions of
law that the criteria in § 27A-10-9.1 are met. If continued involuntary
commitment is ordered, a review in the manner provided in this section shall be
conducted within six months after the order. If the county board issues another
order of continued involuntary commitment, the next review shall be held within
six months after the order. If the second six-month review justifies continued
commitment, the county board may order continued involuntary commitment for up
to twelve months. Subsequent reviews shall be conducted within each twelve
months thereafter that the person remains under commitment.
If the board orders the continued involuntary commitment of
the person, the board shall immediately notify the person and the person's
attorney of the person's right to appeal pursuant to § 27A-11A-25.
If findings that justify continued commitment are not made,
the board shall order that the person be immediately discharged from
involuntary commitment. Following discharge, the referring county shall provide
the person with transportation to the county where the person was taken into
custody if the person so chooses. The county ultimately shown to be the county
of residence shall reimburse the referring county for any transportation costs.
No lien may be placed against the person for the expense incurred in the
transportation of this person.
§ 27A-10-15. Additional
review hearings. Notwithstanding the provisions of §§ 27A-10-9.1 and
27A-10-14, if the board of mental illness orders an initial commitment or a
continued commitment it may also schedule at the time of such initial
commitment hearing or at the time of such review hearing, and without further
notice, a review hearing in addition to the statutory review hearings provided
in § 27A-10-14, to determine whether the person continues to meet the criteria
in § 27A-10-9.1. The rights, procedures, and findings required in § 27A-10-14,
shall apply to such additional review hearing. No temporary periods of
involuntary commitment are authorized.
§ 27A-10-16. Emergency
apprehension -- Evaluation by designated mental health professional.
Upon being informed of the emergency apprehension of an individual under the
provisions of this chapter, the chairman of the county board of mental illness
with jurisdiction over the person shall notify the community mental health
center serving the area in which the board of mental illness is located of the
emergency apprehension.
The chairman of the county board of mental illness may
designate any qualified mental health professional to perform the evaluation
required in § 27A-10-6.
§ 27A-10-17.
Prehearing admission and commitment denied if
medical condition exceeds center's capacity. The center may refuse the prehearing admission and commitment of a person under this
chapter who has a medical condition which exceeds the capacity of the center.
§ 27A-10-18.
Refusal of admission and commitment when medical
condition exceeds center's capacity. The center may refuse the admission
and commitment of a person under this chapter who has a medical condition which
exceeds the capacity of the center.
§ 27A-10-19. Twenty-four hour hold of
severely mentally ill person permitted -- Notice to county board. If any person
presents to a facility licensed by the state as a hospital, other than the
Human Services Center, and after an examination by a qualified mental health
professional it is determined that the person is severely mentally ill and in
such condition that immediate intervention is necessary to protect the person
from physical harm to self or others, the qualified mental health professional
may initiate a twenty-four hour hold on the person and retain the person at the
hospital for purposes of observation and emergency treatment. The hospital or
the qualified mental health professional shall notify the chair of the county
board of mental illness of the twenty-four hour hold. The qualified mental
health professional shall petition for commitment of the person according to §§
27A-10-1 and 27A-10-4. The person shall be afforded rights according to §
27A-10-5. If a petition for emergency commitment pursuant to § 27A-10-1 is
not filed within twenty-four hours, the person shall be released.
CHAPTER 11A
HEARINGS PROCEDURE
§ 27A-11A-1. Process issued by board --
Conduct of meetings -- Evidentiary rulings -- Notice by mail. The chairman or
acting chairman of the board of mental illness shall sign and issue all notices, appointments, warrants, subpoenas, or other process
required to be given or issued by the board, shall be responsible to conduct
all meetings and hearings by the board and shall make all evidentiary rulings.
The notices, reports, and communications herein required to be given or made
may be sent by mail unless otherwise expressed or implied, and the fact and
date of such sending or reception shall be noted on the proper record.
§ 27A-11A-2. Stenographic
record of proceedings -- Certified transcript or tape requested by patient --
Expense. A court reporter shall attend all hearings of the county board
of mental illness and keep a stenographic record of all proceedings; or a
record of all hearings shall be recorded by tape recorder or other sound
reproducing equipment. If a tape recorder or other sound reproducing equipment
is used, the equipment shall be of such quality that each word of the testimony
and rulings made with reference thereto can be clearly heard and understood.
All recorded testimony shall be preserved for at least five years.
A person who has been committed may request a certified
transcript or, if a tape recorder is utilized, a copy of the taped testimony of
the hearing. To obtain a copy the patient shall pay for a transcript or copy of
the tape recorded testimony or shall file an affidavit that he is without means
to pay for such transcript or tape recording. If the affidavit is found true by
the board of mental illness, the expense of the transcript or copy of the tape
recorded testimony is a charge upon the county of residence of the patient.
§ 27A-11A-3.
Filing of board papers with clerk of courts --
Confidentiality and access. The chairman or acting chairman of the board
of mental illness shall cause to be filed in the office of the clerk of courts
all papers and any other records of proceedings connected with any inquest of
the board, and properly belonging to his office with all notices, reports, and
other communications. The clerk of courts shall keep separate books in which to
record the proceedings of the board, and his entries shall be sufficiently full
to show, with the papers filed, a complete record of the findings, orders, and
transactions of the board.
All records of proceedings under this title shall be subject
to the confidentiality and access provisions of § 27A-12-25 et seq. Any such
records regarding a person who is released prior to or directly following the
completion of a hearing provided for in § 27A-10-8 shall be sealed upon such
release and shall be opened only by court order of the circuit court.
§ 27A-11A-4. State's attorney
to represent petitioners -- Reasonable costs. In any proceeding for
involuntary commitment, review, or detention, or in any proceeding challenging
commitment or detention, the state's attorney for the county in which the
proceeding is held shall represent the petitioner and shall defend all
challenges to commitment or detention. The county ultimately shown to be the
county of residence shall reimburse the county in which the proceeding is held
for any reasonable cost of such representation. No lien may be placed against
the person for the costs incurred in any proceeding for involuntary commitment,
review, or detention.
§ 27A-11A-5. Personal service of notice of
hearing -- Contents of notice. Copies of the petition and notice of hearing
shall be personally served forthwith by the sheriff on the person prior to the
hearing. The notice of hearing shall include the following:
(1) Notice of the time, date, and
place of hearing;
(2) Notice to the person of the
right to be represented by an attorney retained by the person or appointed by
the chair of the board wherever the hearing is to be held;
(3) Notice that the person will be
examined by a qualified mental health professional or physician designated by
the chair of the county board within twenty-four hours of being taken into
custody;
(4) Notice that the medical records
of the person will be available to the qualified mental health professional or
physician and defense lawyer; and
(5) Notice of the right of the
person to obtain an additional examination, the reasonable expense of which
shall be reimbursed to the county by the person unless the person is indigent.
§ 27A-11A-6. Sheriff's
and witnesses' fees. The sheriff shall be allowed the same fee as for
like services in other cases. The witnesses shall be allowed the same fees as
the witnesses in the circuit court.
§ 27A-11A-7. Assignment of counsel to
represent alleged mentally ill person -- Time allowed. If upon the completion
of the evaluation required in § 27A-10-6 it is determined that a hearing shall
be held and the alleged mentally ill person has not or cannot employ his own
counsel, the chairman of the board of mental illness where the hearing is to be
held shall immediately assign counsel to represent the interests of the person.
In no instance may a person not be represented by counsel.
§ 27A-11A-9. Expenses
of evaluation -- Additional examination. The referring county shall pay
any expenses of the evaluation required in §§ 27A-10-6 and 27A-15-17.1, subject
to reimbursement by the county ultimately proven to be the county of residence.
No lien may be placed against the person for the costs incurred in completing
the evaluation required in §§ 27A-10-6 and 27A-15-17.1. The person has the right
to obtain an additional examination paid for by the county which may be placed
in evidence before the board, the reasonable expense of which shall be
reimbursed to the county unless the person is indigent. A lien for the amount
of these costs may be filed upon the person's real and personal property to
ensure payment.
§ 27A-11A-10. Precautions against drugs
hampering defense -- Record of treatments administered. If the person is
receiving treatment, the qualified mental health professional shall take all
reasonable precautions to ensure that at the time of the hearing the person is
not so under the influences of, or so affected by drugs, medication, or other
treatment or interventions as to be hampered in preparing for or participating
in the hearing. The board of mental illness at the time of the hearing shall be
presented a record of all drugs, medication, and other treatments or
interventions the person has received since being taken into custody. For
review hearings, the board of mental illness at the time of hearing shall be
presented with the medical record containing information on medications and
treatments the person has received within the past year.
§ 27A-11A-11. Personal
appearance at hearing -- Presentation of evidence -- Choosing not to appear.
The person may appear personally at any hearing and testify on his own behalf,
but may not be compelled to do so. He has the right to subpoena and
cross-examine witnesses and to present evidence. If the person chooses not to
appear, his attorney shall state on the record that the person has been
informed of the hearing and of his right to appear and chooses not to exercise
this right. Documentation of the reasons for the person's decision may not be
required. The board of mental illness may exclude any person not necessary for
the conduct of the proceedings from the hearings, except any person requested
to be present by the proposed patient.
§ 27A-11A-12. Compensation
for appointed counsel. Counsel appointed by the board or a court to
represent a person shall be paid by the county of residence. The counsel shall
be reasonably compensated for such services and for necessary expenses and
costs incident to the proceedings at the rate fixed by the circuit court and in
an amount approved by the chair of the board of mental illness of the referring
county. No lien may be placed against the patient for the cost of counsel
related to any pre-commitment hearing or hearing to review commitment status
pursuant to §§ 27A-10-14 and 27A-10-15.
§ 27A-11A-13. Determining
residency. If the board of mental illness finds that a person meets the
criteria in § 27A-10-9.1, the board shall enter a finding, based on the
criteria in § 28-13-3, regarding the county of residence of the person or a
finding that the person is not a resident of this state.
§ 27A-11A-14.
Request by county to reopen hearing on question of
residence -- Time and place of hearing -- Notice -- Filing and mailing of
ultimate finding -- Payment of expenses. Within ten days of the
auditor's receipt of the committing board's findings regarding the residence
and summary of proofs thereon, the county, other than the referring county, in
which residence was found to be may request the committing board of mental
illness to reopen the hearing upon the question of the person's residence by
mailing a request to the chair of the committing board of mental illness. Upon
receipt of the request to reopen the commitment hearing, the committing board
of mental illness shall, as soon as practicable, afford the county determined
to be the person's county of residence an opportunity to appear before the
board, at a time and place set by the board and not more than thirty days from
the date of the request to reopen the hearing. Notice of the reopened hearing
shall be given to the county where the person was found and to the county
requesting the reopening of the hearing at least ten days prior to the reopened
hearing by mailing notice thereof to the respective county auditors. Either
county appearing at the reopened hearing may present any evidence it may have
to establish that it is not the county of residence of the person. The board
shall then determine, by a preponderance of evidence, the county of residence
of the patient and either affirm or modify its prior finding. The ultimate
finding of residence shall be filed with the clerk of courts of the committing
county and the county of residence with copies mailed to the administrator of
the center or other facility where the person is undergoing treatment.
The referring county shall pay any expenses incurred by the
committing board in conducting any reopened hearing, subject to reimbursement
by the county ultimately proven to be the county of residence. No lien may be
placed against the patient for the costs incurred in conducting any reopened
hearing requested by county regarding the question of residence.
§ 27A-11A-15. Attorney general notified of
findings as to nonresidency in state. If a person is
found at an initial or reopened hearing not to be a resident of the state, the
board of mental illness shall forward to the attorney general a copy of its
findings and a summary of the proofs upon which the findings are based.
§ 27A-11A-16.
Hearing reopened at attorney general's request -- Notice -- Mailing of
ultimate findings -- Payment of expenses. Within ten days of the attorney
general's receipt of the committing board's findings regarding residence and
summary of proofs thereon, the attorney general may request the committing
board of mental illness to reopen the hearing by mailing a request to the
chairman of the committing board of mental illness. Notice of the reopened
hearing shall be given to any county adversely interested and to the attorney
general at least ten days prior to the reopened hearing by mailing notice to
the county auditor of any county adversely interested and to the attorney
general. Any county adversely interested or the attorney general may present
evidence to establish the residence of the person at the reopened hearing. The
board shall then determine, by a preponderance of evidence, whether the person
is a resident of a particular county or whether the patient is not a resident
of the state and shall affirm or modify its prior finding. The ultimate finding
of residence shall be filed with the clerk of courts of the committing county
and copies thereof mailed to the administrator of the center or other facility
where the patient is undergoing treatment and to the auditor of any county
found to be the residence of the patient or to the attorney general if the
person is found not to be a resident of the state.
Expenses incurred by the committing board in conducting any
reopened hearing shall be paid by the referring county, subject to
reimbursement by the county ultimately proven to be the county of residence or
if a nonresident of the state, by the State of South Dakota.
§ 27A-11A-17. County of residence to
refund attorney general's expenses. Expenses incurred by the attorney general
on account of a person whose residence is in a county of this state shall be
refunded with lawful interest thereon by the county of residence.
§ 27A-11A-18. Distribution
of copies of board findings and documents. If a person is found by the
county board of mental illness to meet the criteria in § 27A-10-9.1, the
chairman of the board of the county in which such person is so adjudged shall
notify the administrator, or facility director, or if the person is not
committed to an inpatient psychiatric facility, the director of the program, by
immediately forwarding to him a duplicate copy of the report of the examining
qualified mental health professional, a duplicate order committing the person,
and the findings of the board including the board's finding regarding the county
of residence of the person or its finding that such person is not a resident of
this state.
§ 27A-11A-19.
Hearing required prior to transfer of involuntarily committed patient --
Petition -- Payment of expenses. No person who is under an order of involuntary
commitment may be transferred to a more restrictive treatment facility without,
prior to the transfer, a hearing before the board of mental illness which
committed the person. A petition for transfer shall be filed with the chair of
the board. The person shall have at least five days notice of the hearing and
has the right to be represented by an attorney. At the time of the notice, the
board chair shall appoint an attorney to represent the person if that person
has not retained counsel.
If transfer to the more restrictive treatment facility is
necessary to prevent the immediate danger of physical harm to the person or
others, the transfer may be authorized by the chair of the board pending the
hearing. The hearing shall be held within five days of the initiation of the
transfer, within six days if there is a Saturday, Sunday, or holiday within
that time period, or within seven days if there is a Saturday, Sunday, and
holiday within that time period.
Upon completion of the hearing, if the board finds by clear
and convincing evidence supported by written findings of fact and conclusions
of law that the proposed transfer meets the criteria in § 27A-10-9.1, the board
may authorize the transfer pursuant to the initial commitment order. The
transfer hearing does not substitute for the review hearings to which the
person would otherwise be entitled under §§ 27A-10-14 and 27A-10-15.
The county board of mental illness authorizing a transfer
under this section may authorize the sheriff of the county from which the
person was initially committed to transfer the person at the expense of the
county. The sheriff shall be paid no per diem but only mileage as allowed by
law.
§ 27A-11A-20.
Appointment of escort to convey patient to center --
Same sex -- Expenses -- Relative as escort. The chairman of the county
board of mental illness may appoint someone, other than a relative of the
patient, to convey the patient to the center or facility, but in no instance
may a person convey persons of the opposite sex and no per diem or other
compensation other than expenses may be allowed such attendant.
If any relative or member of the family of the person
desires to convey such person to the center or facility, the chairman of the
board may authorize such relative or member of the family to take charge of
such person to convey him to the center or facility; provided, that in the
judgment of the chairman of the board such relative or member of the family is
a competent person for that purpose and that such person can with safety be
entrusted to the care of such relative while en route.
§ 27A-11A-21. Noncompliance
with treatment order -- Alternative treatment -- Notice and right to counsel.
If the individual ordered to undergo a program of treatment does not comply
with the order, the board of mental illness shall conduct a hearing for the
sole purpose of determining compliance or noncompliance, and if noncompliance
is determined, the board may modify its original order and direct the
individual to undergo an alternative program of treatment consistent with the
criteria in § 27A-10-9.1. At least five days' notice of the hearing shall be
given to the person, and he shall be represented by counsel.
§ 27A-11A-22.
Unsuccessful treatment -- Hearing -- Modification of
treatment. If at any time while a person is under an order of commitment
it comes to the attention of the board of mental illness that the program of
treatment has not been successful, the board shall conduct a hearing within
five days, within six days if there is a Saturday, Sunday, or holiday within
that time period, or within seven days if there is a Saturday, Sunday, and
holiday within that time period. The person shall be represented by counsel and
the person and the counsel shall be given at least five days notice of the
hearing. If the board finds that the program of treatment has
not been successful, it shall modify the original order and direct the person
to undergo an alternative program of treatment if consistent with the criteria
in § 27A-10-9.1.
If at any time while the person is under an order of
commitment the administrator or facility director determines that the program
of treatment has not been successful, the administrator or facility director
shall notify the board of mental illness of that fact.
§ 27A-11A-23.
Fund designated for expenses of commitment proceeding. The compensation,
fees, and expenses in any commitment proceeding shall be allowed and paid out
of a fund designated for that purpose in the county treasury in the usual
manner, if there is a sufficient amount in such fund to pay the same, and if
not, it may be paid out of the general fund.
§ 27A-11A-24. Rules of
evidence. The rules of evidence shall be followed at all hearings and
reviews held pursuant to this title.
§ 27A-11A-25.
Appeal of final order -- Costs for indigent person. A person may appeal
a final order of a county board of mental illness pursuant to any hearing or
review conducted under this title. In the case of a minor, or a person for whom
the guardian has been appointed, such right to appeal may be exercised on
behalf of the person by an attorney. The person shall be advised of this right
upon the termination of any proceedings, both verbally and in writing. The
appeal shall be conducted in accordance with the provisions of chapter 1-26.
None of the rights granted in this section may be denied due
to a person's inability to pay for costs and fees incurred in such proceedings.
The board of county commissioners of the county where an indigent person has residence
shall provide for the cost of representation of the person through the
conclusion of actions brought under this section.
§ 27A-11A-26.
Appointed attorney not guardian ad litem. An
attorney appointed under the provisions of this chapter shall advocate the
legal rights of the person and otherwise fully represent him. The attorney
shall not act as a guardian ad litem.
§ 27A-11A-27.
Guardianship of estate unaffected by board
proceedings. The findings, order, or judgment of a board of mental illness
may not affect any guardianship proceeding instituted before or after such
findings, order, or judgment by any court having jurisdiction in such cases,
excepting that the provisions of this title shall control the custody,
treatment, care, and other regulation and rights of an involuntarily committed
person.
§ 27A-11A-28. Location
and conduct of hearings and reviews. Hearings and reviews provided by
this title shall be conducted in a courtroom of the county courthouse or such
other place within the designated county as the chairman of the county board
may designate with due regard to the rights, safety, and comfort of the person.
CHAPTER 12
CARE, TREATMENT AND RIGHTS OF MENTAL PATIENTS
§ 27A-12-1. Individual
privacy and dignity to be respected. Each person has the right to a
humane environment that affords appropriate individual privacy, individual
dignity and reasonable protection from harm. These rights shall be respected at
all times and upon all occasions, including any occasion when the person is
taken into custody, detained, or transported in accordance with the provisions
of this title.
§ 27A-12-1.1. "Person" defined.
For the purpose of this chapter, the term "person" means any
individual subject to the authority of this title, either on a voluntary or
involuntary basis.
§ 27A-12-1.2. Commitment
not conclusive on competence. Notwithstanding any other provision of
law, no person may be deemed incompetent to manage his affairs, to contract, to
hold professional, occupational, or other licenses, to marry and obtain a
divorce, to register and vote, to make a will, or to exercise any other rights
or privileges accorded to citizens of South Dakota solely by reason of his
detention, admission, or commitment under this title.
§ 27A-12-3. Notice of rights furnished patient
-- Display. Each person admitted or involuntarily detained or committed has the
right to be informed promptly upon entering the facility or program and
periodically thereafter, both verbally and in writing in language and terms appropriate
to such person's condition and ability to understand, of the rights described
in this chapter.
A notice listing and describing in language and terms
appropriate to the ability of persons to whom such notice is addressed to
understand the rights described in this chapter shall be prominently displayed
in locations accessible to such persons.
§ 27A-12-3.1. Rights enumerated -- Limitations on
rights. Any person, if otherwise qualified, has the right to:
(1) Refuse to be photographed or
fingerprinted;
(2) Remain
silent and fully clothed;
(3) Be allowed access to toilet
facilities upon request, to have limited access to his own money unless a
conservator has been appointed, and keep as much money in his personal
possession as he deems necessary, to purchase his personal articles such as
variety store items, and at least two hours of exercise each day;
(4) Receive any visitors during
regular visiting hours, to communicate with individuals outside the facility,
to send and receive uncensored and unopened mail and be given adequate writing
paper, pencils, envelopes, and stamps, and to have access to a telephone. Local
calls shall be allowed without charge and the person shall be allowed long
distance calls if he is able to pay for them or can charge them to another
number;
(5) Wear his own clothes and keep
his own toilet articles and have adequate storage space for his personal
effects;
(6) Converse with others in private;
(7) Receive prompt, adequate medical
treatment for illness;
(8) Participate in religious
services, on a voluntary basis, in accordance with the person's needs, desires,
and capabilities and also in accordance with their basic right to freedom of
religion.
Reasonable limitations may be placed on these rights on an
individual basis if each limitation is essential in order to prevent the person
from violating a law or to prevent substantial and serious physical or mental
harm to himself or others. Each limitation shall be
approved by the administrator or facility director and shall be documented in
the person's record, stating the reasons for such limitations, and the length
of time such limitation is imposed.
§ 27A-12-3.2.
Right to treatment through spiritual means. Nothing
in this title or in any rule adopted pursuant thereto may be construed to deny
treatment by spiritual means through prayer for any person detained for
evaluation or treatment, who desires such treatment, or to a minor if his
parent or guardian desires such treatment, but not in conflict with subdivision
27A-12-3.1(7).
§ 27A-12-3.3. Right of
access to protection of receiving assistance. Notwithstanding §
27A-12-3.1, a person has the right to access to, including opportunities and
facilities for private communications with, any available rights protection
service, or to a system designated to provide protection of receiving
assistance to understand, exercise, and protect the rights described in this
section and in other provisions of law.
§ 27A-12-3.4. Labor for
benefit of facility. A person may perform labor which contributes to the
operation and the maintenance of the facility for which the facility would
otherwise employ someone only if the person voluntarily agrees to perform the
labor and if the person is compensated appropriately and in accordance with all
applicable state and federal labor laws.
§ 27A-12-3.5. Discharge not conditioned on
labor -- Compensation exempt from facility charges. In no event may discharge
be conditioned upon the completion of any labor performed under § 27A-12-3.4,
and one-half of any compensation paid to the person shall be exempt from
collection for payment for services rendered by the facility.
§ 27A-12-3.6. Comprehensive
individualized treatment plan -- Right to participate in planning -- Purpose of
plan -- Periodic review. Each person has the right to the implementation
of a comprehensive individualized treatment plan developed by appropriate
qualified mental health professionals, including a psychiatrist. The treatment
plan shall be consistent with current standards for facilities and programs and
may not consist solely of chemical or drug therapy unless supported by
sufficient psychiatric and medical opinion.
A person has the right to ongoing participation, in a manner
appropriate to such person's capabilities, in the planning of services to be
provided such person, including the right to participate in the development and
periodic review and revision of the plan and, in connection with such
participation, the right to be provided with a reasonable explanation, in terms
and language appropriate to such person's condition and ability to understand,
of the following:
(1) Such person's general mental
condition and, if a physical examination has been provided, such person's
general condition;
(2) The objective of treatment;
(3) The nature and significant
possible adverse effects of recommended treatments;
(4) The reasons why a particular
treatment is considered appropriate;
(5) The reasons why certain rights enumerated
under § 27A-12-3.1, may have been limited;
(6) Any appropriate and available
alternative treatments, services, and types of providers of mental health
services; and
(7) An aftercare plan to facilitate
discharge.
Treatment plans shall be designed to achieve discharge at
the earliest appropriate time and to maximize each person's development and
acquisition of perceptual skills, social skills, self-direction, emotional
stability, effective use of time, basic knowledge, vocational occupational skills,
and social and economic values relevant to the community in which the person
lives.
A qualified mental health professional who is a member of
the person's treatment team shall periodically review, follow-up, and update
all individualized treatment plans.
§ 27A-12-3.7.
Aftercare plan to facilitate discharge. An
aftercare plan shall be developed cooperatively between the person, the legal
guardian, if any, and if requested by the person or guardian, family members or
others, the facility or program to which the person is committed or admitted,
and the mental health center located in the regional district to which the
person will be discharged. A copy of the plan shall be delivered to the person
and the legal guardian, if any. The plan shall:
(1) Specify the services required in
the community to meet the person's needs for treatment, vocation, housing,
nutrition, physical care, and safety;
(2) Specify any income subsidies for
which the person is eligible; and
(3) Identify local and state
agencies which can provide services and support to the person.
Participation in the discharge plan shall be at the person's
discretion and the person's refusal to participate may not be considered a
basis for continued detention if the person is otherwise entitled to discharge.
§ 27A-12-3.8. Examination
and review of behavioral status after admission. Each person shall have
a physical and mental examination and review of behavioral status within
forty-eight hours, excluding Saturdays, Sundays, and holidays, after admission.
§ 27A-12-3.9. Review of need for continued
treatment -- Release if implementation of treatment plan
untimely. No later than ten days after a person is committed, the
administrator, facility director or, if the person is not committed to an
inpatient psychiatric facility, the director of the program shall have the
person and his records examined to determine whether the commitment should be
continued, and whether a treatment plan complying with § 27A-12-3.6 has been
implemented. If a treatment plan has not been implemented within ten days, the
person shall be released immediately unless he agrees to continue with
treatment on a voluntary basis. Within thirty days after such review, and
within every ninety days thereafter, the administrator or other such director
shall have the person and his records examined to determine whether the
commitment should be continued pursuant to § 27A-14-2.
§ 27A-12-3.10. Application
for transfer from involuntary to voluntary status. Each person under an
order of involuntary commitment has the right to apply for and give consent to
transfer to voluntary status. Such transfer shall be forthwith granted unless
the person is unable to understand the nature of voluntary status or the
transfer would not be in the best interest of the person, in which case such
findings shall be entered in the person's medical record and shall be reviewed
every sixty days. If transfer to voluntary status occurs, notice shall be given
to the board of mental illness which initiated the commitment.
§ 27A-12-3.11. Emergency
surgery or treatment -- Documentation of necessity -- Incapacitated patients.
Surgery and any other medical procedures may be performed without the patient's
consent or court order if the life of the recipient is threatened and there is
not time to obtain consent or a court order or if the patient is incapacitated
as defined in § 34-12C-1 and consent is obtained pursuant to chapter 34-12C.
Documentation of the necessity for the medical procedure shall be entered into
the patient's record as soon as practicable. Nonemergency
surgery or other medical procedures may be performed with the patient's
consent, or if incapacitated, by a substitute informed consent pursuant to
chapter 34-12C.
§ 27A-12-3.12. Right to
refuse research, experimental, or intrusive procedures. Except as
provided in § 27A-12-3.23, any adult person who is admitted as an inpatient or
an outpatient who is involuntarily committed or who is detained prior to a
commitment hearing has the right to refuse to be subjected to research and
experimental or intrusive procedures. The person also may refuse any treatment
including electroconvulsive therapy and psychotropic
medication. If an involuntarily committed person refuses treatment,
psychotropic medication may be administered if it is ordered by the court under
the criteria in § 27A-12-3.15.
§ 27A-12-3.13. Petition for authority to
administer psychotropic medication -- Examination required. The administrator
or attending psychiatrist or facility director may petition the circuit court
for the authority to administer psychotropic medication to an involuntarily
committed patient if, after a personal examination, the person's treating
physician and the medical director or attending psychiatrist believe
psychotropic medication will be medically beneficial to the person and is
necessary because:
(1) The person presents a danger to
himself or others;
(2) The person cannot improve or his
condition may deteriorate without the medication; or
(3) The person may improve without
the medication but only at a significantly slower rate.
§ 27A-12-3.14.
Service of petition and notice of hearing -- Content
-- Appointment of counsel -- Court calendar. Certified copies of the
petition and notice of hearing shall be personally served by the sheriff on the
person immediately upon the filing of the petition. The notice of hearing shall
include the following:
(1) Notice of the time, date, and
place of hearing and directing the person to appear in person;
(2) Notice of the person's right to
be represented by an attorney at the person's own expense or appointed by the
court if the person is indigent;
(3) Notice of the person's right to
seek an opinion of an independent psychiatrist at the person's own expense or
at the expense of the person's county of residence if the person is indigent;
and
(4) Notice that the costs of any
post-commitment proceedings, treatment, medication, and any hearing related to
the medication, any post-commitment proceeding, including a habeas corpus
proceeding, the costs of compensation for the attorney appointed to represent
the person, and any other costs associated with any post-commitment proceeding,
are that person's responsibility, and that a lien for the amount of these costs
may be filed upon the person's real and personal property to insure payment.
Upon the filing of the petition the court shall immediately
appoint counsel for the person if counsel has not been retained. A date shall
be set for the hearing within fifteen days of the filing of the petition, and
this hearing shall be a priority on the court calendar. Allowance for any
additional time shall be limited to one seven-day continuance, and shall be
restrictively granted, only upon a showing of good cause for delay.
§ 27A-12-3.15.
Court-ordered use of psychotropic medication when person incapable of
consent. If the court finds by clear and convincing evidence that the person is
incapable of consenting to treatment with psychotropic medication because the
person's judgment is so affected by mental illness that the person lacks the
capacity to make a competent, voluntary, and knowing decision concerning the
medication and the administration of the recommended psychotropic medication is
essential under the criteria in § 27A-12-3.13, the court may order the
administration of psychotropic medication.
§ 27A-12-3.16.
Time limit for court-ordered administration of
psychotropic medication -- Review of necessity of treatment -- Exception.
The court may authorize the administration of psychotropic medication for not
more than one year. The court's order shall terminate if the person is
judicially restored as competent to consent to or refuse the administration of
psychotropic medication or if the person's treating physician or the medical
director of the facility or, if the facility does not have a medical director,
a consulting psychiatrist determines that the administration of psychotropic
medication is no longer necessary under the criteria set forth in §
27A-12-3.13. Transfer from inpatient to outpatient treatment while the person
is under an order of involuntary commitment does not, in itself, terminate the
court's order. The necessity of treatment with psychotropic medication shall be
reviewed and approved under the criteria in § 27A-12-3.13 at least every thirty
days by the treating physician and the medical director of the facility or, if
the facility does not have a medical director, a consulting psychiatrist after
a personal examination of the person. If the consulting psychiatrist was the
person's treating physician while the person was a patient at the
§ 27A-12-3.17. Compensation
of appointed attorney by county of residence. The attorney appointed by
a court to represent the interests of the person shall be paid by the person's
county of residence. The attorney shall be compensated for his services and for
necessary expenses incurred incident to the proceedings.
§ 27A-12-3.18. Access to
attorney and private physician. Notwithstanding § 27A-12-3.1, a person
may communicate with his attorney or other legal representative or a private
physician subject to the facility's normal access restrictions. The person's
attorney or other legal representative shall have reasonable access to the
person, the area where the person has received treatment, resided, been
detained, or had access, and to all records and information pertaining to the
person.
§ 27A-12-3.19. Personal
appearance at hearing not compulsory -- Presenting evidence. The person
may appear personally at any hearing and testify on his own behalf. Except for
the hearing required in § 27A-12-3.14, the person may not be compelled to
appear or testify. He may subpoena and cross-examine witnesses and present
evidence. If the person chooses not to appear, his attorney shall state on the
record that the person has been informed of the hearing and of his right to
appear and chooses not to exercise his right. Documentation of the reasons for
the person's decision may not be required. The court or the board of mental
illness may exclude any person not necessary for the conduct of the proceedings
from the hearings, except any person requested to be present by the patient.
§ 27A-12-3.20.
Informed consent to research, experimental or
intrusive procedures -- Court order where person incapable of consenting -- Electroconvulsive therapy. No adult person may be
the subject of experimental research, experimental or intrusive procedures or
interventions, or intrusive treatments including electroconvulsive
therapy unless written informed consent is obtained from the person. Informed
consent may be withdrawn at any time, is effective immediately, and must
thereafter be reduced to writing. If the attending physician determines that
the person is incapable of exercising informed consent, such treatment may be
provided only if ordered after a hearing before the circuit court. If the court
finds that the person is incapable of consenting to such treatment because the person's
judgment is so affected by the mental illness that the person lacks the
capacity to make a competent, voluntary and knowing decision concerning such
treatment, the court may exercise a substituted judgment on the administration
of such treatment. The order may be made to extend for up to one year. Electroconvulsive therapy may be administered only by a
physician. Sterilization may not be authorized under authority of this title
for a person incapable of providing informed consent.
§ 27A-12-3.21. Experimental
research and hazardous procedure to be approved by secretary of human services.
No person may be the subject of any experimental research or hazardous
procedure unless the research or procedure is approved and conducted in the
manner prescribed by the secretary of human services.
§ 27A-12-3.22. Psychosurgery, aversive
stimuli, and substantial deprivations prohibited. No person may be administered
or subjected to psychosurgery, aversive stimuli, or substantial deprivations.
Aversive stimuli shall include anything which, because it is believed to be
unreasonably unpleasant, uncomfortable, or distasteful to the person, is
administered or done to the person for the purpose of reducing the frequency of
a behavior but does not include restrictive treatment procedures implemented in
accordance with § 27A-12-6.1. Substantial deprivations include the withdrawal
or withholding of basic necessities or comforts which is
intended to subject the person to significant discomfort, inconvenience, or
unpleasantness.
§ 27A-12-3.23. Emergency
administration of psychotropic medication -- Length of treatment limited.
If it is ordered by a physician, psychotropic medication may be administered to
a person in an emergency to prevent serious physical harm to the person or to
others. Psychotropic medication may also be administered if the attending
physician and one other physician determine that administration of the
medication is necessary to prevent significant deterioration of the person's
severe mental illness and that the person's potential for improvement would be
permanently impaired if the treatment is not provided. Medication treatment may
be continued for up to ten days. The reason for the treatment shall be
documented in the patient's medical record.
§ 27A-12-6.1.
Restrictive treatment procedures -- Documentation --
Prior approval -- Limitation. Restrictive treatment procedures which
impose physical restrictions on the person may not be considered seclusion or
restraint as provided for in § 27A-12-6.2, if carried out as a part of an
approved behavioral treatment program, developed in accordance with §
27A-12-3.6. If restrictive treatment procedures involve physical restraint or
placing a person alone in a separate room, appropriate attention shall be paid
every fifteen minutes to the person, especially in regard to regular meals,
bathing, and use of the toilet. There shall be documentation in the person's
record that such attention was given to the person.
Prior to its implementation, restrictive treatment procedures
shall be approved by a peer committee review, and shall be subject to
continuing review and approval every ninety days, or sooner upon request for
review by the patient, attending staff, treatment team member, or treating
qualified mental health professional. Each incident requiring the
implementation of a restrictive treatment procedure shall be documented in the
person's record. An approved restrictive treatment procedure shall require a
written order at least every fifteen days during the first sixty days of
implementation and every thirty days thereafter.
Restrictive treatment procedures may not be employed as
punishment or for the convenience of staff, and may be implemented in the
treatment plan only as necessary to prevent assaultive
or otherwise harmful behaviors, with specific conditions justifying its use
including occurrence of antecedent behavior to be documented in the treatment
plan. A person shall be released from restrictive treatment procedures upon
completion of a reasonable and pre-set period of time during which the targeted
behaviors are not present.
§ 27A-12-6.2.
Seclusion or restraint -- Clinical justification required -- Rationale
-- Appropriate manner. The use of seclusion or restraint
requires clinical justification and shall be employed only to prevent immediate
harm to the person or others, or if less restrictive means of restraint are
not feasible. Seclusion or restraint may not be employed as punishment or for
the convenience of staff. Seclusion or restraint may be authorized only by a
qualified mental health professional, physician's assistant, or nurse
practitioner.
The rationale for the use of seclusion or restraint shall
address the inadequacy of less restrictive intervention techniques. A personal
clinical assessment of the person shall be conducted and clinical justification
for the use of seclusion and restraint shall be documented in the person's
records when the procedure is implemented. A report shall be prepared and
included in the person's record. The implementation of seclusion or restraint
may not exceed one hour, at which time an order from a qualified mental health
professional, physician's assistant or nurse practitioner is required if
seclusion or restraint is to be continued. The order shall be entered in the
person's records as soon as possible, but not more than twenty-four hours after
implementation of the order. Each written order for seclusion or restraint
shall be time-limited and shall not exceed twenty-four hours.
Seclusion or restraint may not be used in a manner that
causes undue physical discomfort, harm, or pain to the person. Appropriate
attention shall be paid every fifteen minutes to a person in seclusion or
restraint, especially in regard to regular meals, bathing, and the use of the
toilet, unless more frequent attention is warranted. There shall be
documentation in the person's record that such attention was given to the
person.
§ 27A-12-25. Individual records required
-- Contents -- Confidentiality. A complete statistical and medical record shall
be kept current for each person receiving mental health services, or being
otherwise detained under this title. The record shall include information
pertinent to the services provided to the person, pertinent to the legal status
of the recipient, required by this title or other provision of law, and
required by rules or policies. The material in the record shall be confidential
in accordance with the provisions of this title.
§ 27A-12-25.1. Information closed to public
inspection -- Sealed upon termination of proceedings. Any information acquired
by a peace officer pursuant to his authority under this title regarding any
person subject to any proceedings under this title shall not be open to public
inspection, and any records regarding such person shall be sealed upon the
termination of proceedings for which the information was acquired, and shall be
opened only by order of the circuit court.
§ 27A-12-26. Confidentiality of
information acquired in course of providing mental health services. Information
in the record of a person, and other information acquired in the course of
providing mental health services to a person, shall be kept confidential and
are not open to public inspection. The information may be disclosed outside the
center, department, mental health program, or inpatient facility, whichever is
the holder of the record, only if the holder of the records and the person, his
parents if he is a minor or his guardian, consent or, in the absence of such
consent, in the circumstances and under the conditions set forth in §§
27A-12-25 to 27A-12-32, inclusive, and in conformity with federal law.
§ 27A-12-26.1. Access to own records -- Exceptions
-- Confidentiality following discharge. A person has the right to access, upon
request, to his mental health records. However, the person may be refused
access to:
(1) Information in such records
provided by a third party under assurance that such information remain
confidential; and
(2) Specific material in such records
if the qualified mental health professional responsible for the mental health
services concerned has made a determination in writing that such access would
be detrimental to the person's health. However, such material may be made
available to a similarly licensed qualified mental health professional,
selected by the person; and such professional may, in the exercise of
professional judgment, provide such person with access to any or all parts of
such material or otherwise disclose the information contained in the material
to such person.
The rights to confidentiality of and access to records as
provided in §§ 27A-12-25 to 27A-12-32, inclusive, shall remain applicable to
records pertaining to such person after the person's discharge.
§ 27A-12-27.
Obligation to disclose confidential information.
If requested, information shall be disclosed:
(1) Pursuant to orders or subpoenas
of a court of record or subpoenas of the Legislature;
(2) To a prosecuting or defense
attorney or to a qualified mental health professional as necessary for him to
participate in a proceeding governed by this title;
(3) To an attorney representing a
person who is presently subject to the authority of this title or who has been
discharged when that person has given his consent;
(4) If necessary in order to comply
with another provision of law;
(5) To the department if the
information is necessary to enable the department to discharge a responsibility
placed upon it by law; or
(6) To a states attorney or the attorney
general for purpose of investigation of an alleged criminal act either
committed by or upon a human services center patient while a patient of the
center.
§ 27A-12-29.
Discretionary disclosure of confidential information.
Information may be disclosed in the discretion of the holder of the record:
(1) As necessary or beneficial in
order for the person, or persons acting on behalf of the person, to apply for
and acquire benefits for the person, including third-party financial payments,
assistance, or services and follow-up, care, and treatment by local centers
serving the area to which a person is expected to go upon temporary or
permanent release or discharge; or
(2) As necessary or beneficial for
evaluation and accreditation; or
(3) As necessary or beneficial to
train persons enrolled in an accredited course leading to a degree and
qualification, certification, or registration as a qualified mental health
professional, licensed practical nurse, registered nurse, psychologist, social
worker, physical therapist, occupational therapist, laboratory technician,
medical records professional, dietician, or other health care professional; or
(4) Upon request of the
§ 27A-12-30. Released information
approved by administrator -- Record of release. Any release of information by
the holder of the record shall be approved by the administrator or facility
director holding the records. The holder of the record shall keep a record of
any information released, to whom, the date it was released and the purpose for
such release.
§ 27A-12-31. Identity of patient
protected in disclosing information -- Disclosure limited by germaneness. If
information is disclosed, the identity of the individual to whom it pertains
shall be protected and may not be disclosed unless it is germane to the
authorized purpose for which disclosure was sought.
§ 27A-12-32. Disclosure
by recipient of confidential information. Any person receiving
confidential information pursuant to § 27A-12-25 shall disclose the information
to others only to the extent consistent with the authorized purpose for which
the information was obtained.
§ 27A-12-32.1. Asserting
grievances. A person may assert grievances with respect to infringement
of the rights described in this chapter, including the right to have such
grievances considered in a fair, timely, and impartial grievance procedure
which provides a meaningful review.
§ 27A-12-32.2. Habeas corpus available for
committed, confined, detained, or restrained person. Any person involuntarily
committed by a board of mental illness and any person confined or in any manner
detained or restrained is entitled to the benefit of the writ of habeas corpus.
If the court finds that the criteria in § 27A-10-9.1 are met, the court may
authorize continued involuntary commitment. Such authorization is not a bar to
the issuing of the writ the second time if it is alleged that the criteria in §
27A-10-9.1 are no longer met.
§ 27A-12-33. Provisions of title do not
replace or limit other rights. The provisions of this title may not be
construed as replacing or limiting any other rights, benefits, or privileges
afforded any person pursuant to other provisions of law, the Constitution of
South Dakota, and the Constitution of the
§ 27A-12-33.1. Exercise of rights. The exercise of
rights afforded in this title are not subject to any reprisal, including
reprisal through the actual or threatened denial of any treatment, benefits,
privileges, or other rights.
§ 27A-12-34.
Notification to guardian or next of kin as to
admission or commitment to, or discharge from,
CHAPTER 14
DISCHARGE OF MENTAL PATIENTS
§ 27A-14-1. Discretionary
discharge of voluntary patient. The administrator or facility director
may at any time discharge a voluntary patient whom the administrator or
facility director deems suitable for discharge.
§ 27A-14-1.1. Notification
to guardian that inpatient treatment no longer required. If the administrator
or facility director or attending psychiatrist has determined that a person
under a guardianship has received maximum benefits of inpatient treatment and
no longer requires such treatment, and is eligible and has been accepted for
placement or treatment in a community setting, the guardian shall be so
notified. The guardian shall remove the person within three days upon such
notification. If the guardian fails to remove the person, the administrator
shall notify the court where the guardianship proceedings were held for further
disposition.
§ 27A-14-1.2. Release by
§ 27A-14-1.3. Release by facility director
-- Notification to board chairman. If, prior to the hearing required in §
27A-10-8, the director of the facility where the person is detained determines
that the person no longer meets the commitment criteria, the director shall so
notify the county board chairman. If the chairman agrees, the person shall be
released and his record sealed in accordance with the provisions of state law.
Following such release, the referring county shall provide the person with
transportation to the county where he was taken into custody if the person so
chooses.
§ 27A-14-1.4. Leave status -- Limit --
Reviews and hearings. A patient, upon approval of the administrator or facility
director, may be placed on a leave status from the center or facility. The
patient's legal admission status at the center or facility shall remain in
effect. Leave may not be longer than thirty days and may not extend beyond the
duration of any involuntary commitment under which the patient was admitted.
While on leave, an involuntarily committed patient shall receive all the
reviews and hearings as mandated by this title or be discharged.
§ 27A-14-2. Discharge of involuntary
patient on changed behavior. A patient involuntarily committed shall be
discharged when, in the opinion of the administrator, or facility director, or
if the person is not committed to an inpatient psychiatric facility, the
director of the program, the patient no longer meets the commitment criteria.
§ 27A-14-3. Notice to county board of
discharge of involuntary patient -- Transportation to home. If
a patient is discharged in accordance with § 27A-14-2, the county board of
mental illness which entered the order for treatment shall be notified.
Within forty-eight hours of discharge notification, the county board of mental
illness shall provide the patient's transportation to his place of residence if
the patient so chooses.
§ 27A-14-4. Notice to county board of
provisional discharge -- Maximum duration. If the patient is provisionally
discharged, the administrator shall notify the county board of the discharge
and the provisions of the discharge. Provisional discharges shall in no
instance extend beyond the duration of the original commitment.
§ 27A-14-5. County
liability for costs on failure to remove discharged patient on notice -- Report
and collection of delinquencies. If the county board fails or neglects to
take and remove such patient so discharged, as provided in § 27A-14-3, within
forty-eight hours from the date of the order discharging him and of the notice
of the order, the responsible county is liable for and shall pay to the state
full service cost as such term is defined in § 27A-13-2 for the care and
keeping of such patient at the center or facility, the time of such keeping to
be computed and commence forty-eight hours after the date of such order and
notice.
The administrator or other director shall report any such
delinquencies, and the time any patient is so kept beyond such time aforesaid,
giving his name, the county where he belongs, and the amount due from such
county for such charge, to the state auditor who shall notify the county auditor
of the county to be charged, and the same shall be paid into the state treasury
as other charges for the support of the mentally ill.
§ 27A-14-14. Public
assistance to discharged or released patient. The secretary of social
services shall provide by rules, promulgated pursuant to chapter 1-26, methods
whereby a patient shall be assisted in qualifying for all available public
assistance benefits provided by the state or federal law.
CHAPTER 16
MENTAL ILLNESS TREATMENT DECISIONS
§ 27A-16-1.
Definition of terms. Terms used in this chapter
mean:
(1) "Attending physician," the physician who has
the primary responsibility for the mental illness treatment of a person;
(2) "Attorney-in-fact," any person designated by a
principal through a power of attorney to make decisions about mental illness
treatment for the principal in accordance with a declaration for mental illness
treatment;
(3) "Declaration for mental illness treatment," or
"declaration," any document declaring preferences or instructions
regarding mental illness treatment;
(4) "Power of attorney for mental illness
treatment," any document that authorizes an attorney-in-fact to make a
decision about mental illness treatment or to consent to mental illness treatment
on behalf of its principal;
(5) "Health care facility," a health care facility
as defined in § 34-12-1.1 and the
(6) "Incapable," the condition of a person whose
ability to receive and evaluate information effectively or to communicate
decisions is impaired to such an extent that, in the opinion of the court or in
the opinion of two physicians, one of whom is the treating psychiatrist, if
any, the person currently lacks the capacity to make mental illness treatment
decisions;
(7) "Mental illness treatment," convulsive
treatment, treatment of mental illness with psychotropic medication, and
admission to and retention in a health care facility for not more than thirty
days for care or treatment of mental illness;
(8) "Principal," any person who gives authority to
an attorney-in-fact to make decisions about mental illness treatment for the
person.
§ 27A-16-2. Declaration
of mental illness treatment. Any adult of sound mind may make a
declaration of preferences or instructions for mental illness treatment. The
preferences or instructions may include consent to mental illness treatment. A
declaration for mental illness treatment continues in effect for three years or
until revoked, whichever is first. If a declaration for mental illness
treatment has been invoked and is in effect on the date that the declaration is
to expire, the declaration remains effective until there is a subsequent
determination by the attending physician, treating psychiatrist, or the circuit
court that the principal is capable of giving informed consent.
§ 27A-16-3. Power of
attorney -- Authority -- Limits -- Expiration. By means of a power of
attorney for mental illness treatment, any adult of sound mind may designate a
competent adult to act as attorney-in-fact to make decisions about mental
illness treatment. An alternative attorney-in-fact may also be designated to
act as attorney-in-fact if the original designee is unable or unwilling to act
at any time. The authority of an attorney-in-fact and any alternative
attorney-in-fact continues under the power of attorney for mental illness
treatment for three years, until it is revoked by the principal, or until the
attorney-in-fact withdraws, whichever is first. If an attorney-in-fact is
acting for the principal on the date the power of attorney is to expire, the
power of attorney remains in effect until the principal is no longer incapable.
An attorney-in-fact who has accepted the appointment in
writing may make decisions about mental illness treatment on behalf of the
principal only when the principal is incapable. The decisions must be
consistent with any desires the principal has expressed in the declaration for
mental illness treatment.
§ 27A-16-4. Signature and
witnesses. A declaration and power of attorney for mental illness
treatment is effective only if it is signed by the principal and two competent
adult witnesses. The witnesses shall attest that the principal is known to
them, that the principal signed the declaration and power of attorney for mental
illness treatment in their presence, and that the principal appears to be of
sound mind and not under duress, fraud, or undue influence. No person specified
in § 27A-16-16 may act as witnesses.
§ 27A-16-5. Filing -- Informed consent. A
declaration and a power of attorney for mental illness treatment shall be filed
with the principal's attending physician or other mental illness treatment
provider, and they remain valid until they expire or are revoked. The physician
or provider shall continue to obtain the principal's informed consent to all
mental illness treatment decisions if the principal is capable of providing
informed consent. The physician or provider shall act in accordance with the
declaration and with the informed consent of the attorney-in-fact if the
principal is found to be incapable.
§ 27A-16-6. Liability.
The attorney-in-fact may not make mental illness treatment decisions unless the
principal is incapable. The attorney-in-fact is not, as a result of acting in
that capacity, personally liable for the cost of treatment provided to the
principal.
§ 27A-16-7. Right of access.
Except to the extent that the right is limited by the declaration or any
federal law, an attorney-in-fact has the same right as the principal to receive
information regarding the proposed mental illness treatment and to receive,
review, and consent to disclosure of medical records relating to that
treatment. The right of access does not waive any evidentiary privilege.
§ 27A-16-8. Exercise of authority. In
exercising authority under the declaration, the attorney-in-fact shall act
consistently with the desires of the principal as expressed in the declaration.
If the principal's desires are not expressed in the declaration and are not
otherwise known by the attorney-in-fact, the attorney-in-fact shall act in what
the attorney-in-fact in good faith believes to be the best interests of the
principal.
§ 27A-16-9. Good faith action -- Liability
limited. An attorney-in-fact is not subject to criminal prosecution, civil
liability, or professional disciplinary action for any action taken in good
faith pursuant to a declaration for mental illness treatment.
§ 27A-16-10. Limitations on
requirement of declaration. A person may not be required to execute or
to refrain from executing a declaration as a criterion for insurance, as a
condition for receiving mental or physical health services, or as a condition
of discharge from a health care facility.
§ 27A-16-11. Inclusion
in medical records -- Compliance. Upon being presented with a
declaration and a power of attorney for mental illness treatment, an attending
physician or other provider shall make the declaration and power of attorney a
part of the principal's medical record. When acting under authority of a
declaration and power of attorney, a physician or provider shall comply with
them to the fullest extent possible, consistent with reasonable medical
practice, the availability of treatments requested, and applicable law.
If the physician or other provider is unwilling at any time
to comply with the declaration and power of attorney, the physician or provider
may withdraw from providing treatment consistent with the exercise of
independent medical judgment. A physician or provider who withdraws shall
promptly notify the principal and the attorney-in-fact and shall document the
notification in the principal's medical record.
§ 27A-16-12. Different
treatment. The attending physician or provider may subject the principal
to mental illness treatment in a manner contrary to the principal's wishes as
expressed in a declaration for mental illness treatment only if the principal
is a patient of the Human Services Center pursuant to Title 27A or § 23A-46-10
or treatment is authorized by the circuit court or in cases of emergency
endangering life or health. A declaration does not limit any authority either to take a person into custody or to admit, retain, or
treat a person in a health care facility.
§ 27A-16-13. Revocation.
A principal who is capable may revoke a declaration and power of attorney for
mental illness treatment in whole or in part at any time. A revocation is
effective when a capable principal communicates the revocation to the attending
physician or other provider. The attending physician or other provider shall
note the revocation in the principal's medical record.
§ 27A-16-14. Liability prohibited for good faith
reliance. An attending physician or other provider who administers or does not
administer mental illness treatment according to and in good faith reliance on
the validity of a declaration and with the informed consent of the
attorney-in-fact is not subject to criminal prosecution, civil liability, or
professional disciplinary action.
§ 27A-16-15. Persons prohibited from serving as
attorney-in-fact. None of the following may serve as attorney-in-fact:
(1) The attending physician or other
mental illness treatment provider or an employee of the physician or provider
if the physician, provider, or employee is unrelated to the principal by blood,
marriage, or adoption; or
(2) An owner, operator, or employee
of a health care facility in which the principal is a patient or resident if
the owner, operator, or employee is unrelated to the principal by blood,
marriage, or adoption.
§ 27A-16-16. Persons prohibited from serving as
witnesses to signing. None of the following may serve as a witness to the
signing of a declaration and power of attorney for mental illness treatment:
(1) The attending physician or
mental illness treatment provider or a relative of the physician or provider;
(2) An owner or operator or a
relative of an owner or operator of a health care facility in which the
principal is a patient or resident; or
(3) A person related to the
principal by blood, marriage, or adoption.
§ 27A-16-17. Withdrawal by attorney-in-fact
-- Notice. An attorney-in-fact may withdraw by giving notice to the
principal. If the principal is incapable, the attorney-in-fact may withdraw by
giving notice to the attending physician or mental illness treatment provider.
The attending physician or provider shall note the withdrawal in the
principal's medical record.
A person who has withdrawn under the provisions of this
section may rescind the withdrawal by executing an acceptance after the date of
the withdrawal. The acceptance shall be in the same form as provided by §
27A-16-18 for accepting an appointment as attorney-in-fact. A person who
rescinds a withdrawal shall give notice to the principal if the principal is
capable or to the principal's attending physician or mental illness treatment
provider if the principal is incapable.
§ 27A-16-18.
Declaration and power of attorney -- Forms. A
declaration and power of attorney for mental illness treatment shall be in
substantially the following form:
DECLARATION AND POWER OF ATTORNEY
FOR MENTAL HEALTH TREATMENT
I,
_______________, being an adult of sound mind, willfully and voluntarily make
this declaration for mental illness treatment to be followed if it is
determined by a court or by two physicians that my ability to receive and
evaluate information effectively or communicate decisions is impaired to such
an extent that I lack the capacity to consent to mental illness treatment.
Mental illness treatment means convulsive treatment, treatment of mental
illness with psychotropic medication, and admission to and retention in a
health care facility for up to thirty days. I understand that I may become
incapable of giving informed consent for mental illness treatment due to the
symptoms of a diagnosed mental disorder. These symptoms may include:
________________________________________________________________________
________________________________________________________________________
PSYCHOTROPIC MEDICATIONS
If I become incapable of giving informed consent for mental
illness treatment, my wishes regarding psychotropic medications are as follows:
________ I consent to the administration of psychotropic
medications.
Comments:
________________________________________________________________________
________________________________________________________________________
CONVULSIVE TREATMENT
If I become incapable of giving informed consent for mental
illness treatment, my wishes regarding convulsive treatment are as follows:
________ I consent to the administration of convulsive treatment.
Comments:
________________________________________________________________________________________________________________________________________________
ADMISSION TO AND RETENTION IN FACILITY
If I become incapable of giving informed consent for mental
illness treatment, my wishes regarding admission to and retention in a health
care facility for mental illness treatment are as follows:
________ I consent to being admitted to a health care facility
for mental illness treatment.
This directive does not provide consent to retain me in a
facility for more than thirty days.
Comments:
________________________________________________________________________
________________________________________________________________________
ADDITIONAL REFERENCES OR INSTRUCTIONS
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
POWER OF ATTORNEY FOR MENTAL HEALTH TREATMENT
I hereby appoint the following person to act as my
attorney-in-fact to make decisions regarding my mental illness treatment if I
become incapable of giving informed consent for that treatment:
NAME__________________________________________________________________
ADDRESS______________________________________________________________
TELEPHONE
NUMBER___________________________________________________
If the person named refuses or is unable to act on my behalf
or if I revoke that person's authority to act as my attorney-in-fact, I
authorize the following person to act as my
attorney-in-fact:
NAME__________________________________________________________________
ADDRESS______________________________________________________________
TELEPHONE
NUMBER___________________________________________________
My attorney-in-fact is authorized to make decisions that are
consistent with the wishes I have expressed in my declaration for mental
illness treatment or, if not expressed, as are otherwise known to my
attorney-in-fact. If my wishes are not expressed and are not otherwise known by
my attorney-in-fact, my attorney-in-fact is to act in what he or she believes
to be my best interests.
________________________________________
(Signature of Principal/Date)
AFFIRMATION OF WITNESSES
We affirm that the principal is personally known to us, that
the principal has read the accompanying Notice to Person Making a Declaration
and Power of Attorney for Mental Illness Treatment or has had the notice read
and explained, that the principal signed or acknowledged the principal's
signature on this declaration and power of attorney for mental illness
treatment in our presence, that the principal appears to be of sound mind and
not under duress, fraud, or undue influence, that neither of us is:
A person appointed as an attorney-in-fact by this document;
The principal's attending physician or mental health service
provider or a relative of the physician or provider;
The owner or operator or a relative of an owner or operator
of a facility in which the principal is a patient or resident; or
A person related to the principal by blood, marriage, or
adoption.
Witnessed by:
______________________________ ______________________________
(Signature of Witness/Date) (Printed Name of Witness)
______________________________ ______________________________
(Signature of Witness/Date) (Printed Name of Witness)
ACCEPTANCE OF APPOINTMENT AS ATTORNEY-IN-FACT
I accept this appointment and agree to serve as
attorney-in-fact to make decisions about mental illness treatment for the
principal. I understand that I have a duty to act in a manner that is
consistent with the desires of the principal as expressed in this appointment.
I understand that this document gives me authority to make decisions about
mental illness treatment only while the principal is incapable, as determined
by a court or two physicians. I understand that the principal may revoke this
declaration in whole or in part at any time and in any manner if the principal
is capable.
______________________________________ ______________________________
(Signature of Attorney-in-fact/Date) (Printed name)
______________________________________ ______________________________
(Signature of Alternative Attorney-in-fact/Date) (Printed name)
NOTICE TO PERSON MAKING A DECLARATION AND
POWER OF ATTORNEY FOR MENTAL ILLNESS TREATMENT
This is an important legal document. It creates a
declaration for mental illness treatment and names an attorney-in-fact and an
alternative attorney-in-fact to make mental health treatment decisions for you
if you become incapable. Before signing this document, you should know these
important facts:
This document allows you to make decisions in advance about
three types of mental illness treatment: psychotropic medication, convulsive
therapy, and short-term (up to thirty days) admission to a treatment facility.
It is very important that you declare your instructions carefully and review
this document regularly. The instructions that you include in this declaration
will be followed only if a court or two physicians believe that you are
incapable of making treatment decisions. Otherwise, you will be considered
capable to give consent for the treatments.
You may also appoint a person as your attorney-in-fact to
make these treatment decisions for you if you become incapable. Preference
shall be given to immediate family members in the following order: spouse,
parent, adult child, and sibling. It is important that your attorney-in-fact be
knowledgeable about mental illness issues and the decisions you have made. The
person you appoint has a duty to act in a manner that is consistent with your
desires as stated in this document. If your desires are not stated or otherwise
made known to the attorney-in-fact, the attorney-in-fact has a duty to act in a
manner consistent with what the person in good faith believes to be your best
interest. For the appointment to be effective, the person you appoint must
accept the appointment in writing. The person also has the right to withdraw
from acting as your attorney-in-fact at any time.
This document will continue in effect for three years unless
you become incapable of participating in mental illness treatment decisions. If
this occurs, the directive will continue in effect until you are no longer
incapable.
You have the right to revoke this document in whole or in
part at any time you have not been determined to be incapable. YOU MAY NOT
REVOKE THIS DECLARATION AND POWER OF ATTORNEY WHEN YOU ARE CONSIDERED INCAPABLE
BY
If there is anything in this document that you do not
understand, you should ask a lawyer to explain it to you. This declaration will
not be valid unless it is signed by two qualified witnesses who are personally
known to you and who are present when you sign or acknowledge your signature.
For statutory provisions
regarding treatment of minors with a mental illness
please
see the South Dakota Legislature’s website.
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