South Carolina General Assembly
114th Session, 2001-2002

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Bill 3944


Indicates Matter Stricken
Indicates New Matter


                    Current Status

Bill Number:                      3944
Type of Legislation:              General Bill GB
Introducing Body:                 House
Introduced Date:                  20010417
Primary Sponsor:                  Harrison
All Sponsors:                     Harrison
Drafted Document Number:          l:\council\bills\nbd\11555ac01.doc
Companion Bill Number:            592
Residing Body:                    House
Current Committee:                Judiciary Committee 25 HJ
Subject:                          Mental health, chemically dependent 
                                  persons; involuntary treatment; duty of law 
                                  enforcement, Alcohol or drug abuse


                        History

Body    Date      Action Description                     Com     Leg Involved
______  ________  ______________________________________ _______ ____________
------  20010418  Companion Bill No. 592
House   20010417  Introduced, read first time,           25 HJ
                  referred to Committee


              Versions of This Bill

View additional legislative information at the LPITS web site.


(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

A BILL

TO AMEND SECTION 44-17-410, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO EMERGENCY MENTAL HEALTH ADMISSION PROCEDURES, SO AS TO ALLOW A PERSON ADMITTED ON AN EMERGENCY BASIS TO BE DISCHARGED, IF BEFORE THE HEARING A DESIGNATED EXAMINER DETERMINES THAT THE PERSON NO LONGER REQUIRES INVOLUNTARY TREATMENT; TO AMEND SECTION 44-17-430, AS AMENDED, RELATING TO PROCEDURES FOR TAKING A PERSON INTO CUSTODY FOR TWENTY-FOUR HOURS WHEN THEY ARE ALLEGED TO BE LIKELY TO CAUSE SERIOUS HARM AND A PHYSICIAN IS NOT AVAILABLE TO EXAMINE THE PERSON BEFORE HE'S TAKEN INTO CUSTODY, SO AS TO PROVIDE THAT IF A PERSON IS NOT TAKEN INTO CUSTODY WITHIN SEVENTY-TWO HOURS OF THE ISSUANCE OF THE PROBATE COURT ORDER AUTHORIZING TAKING THE PERSON INTO CUSTODY, THE ORDER EXPIRES; TO ADD SECTION 44-17-435 SO AS TO AUTHORIZE AND PROVIDE PROCEDURES FOR A LAW ENFORCEMENT OFFICER TO TAKE A PERSON TO A MENTAL HEALTH FACILITY IF THE PERSON POSES A LIKELIHOOD OF CAUSING SERIOUS HARM TO HIMSELF OR OTHERS; TO AMEND SECTION 44-17-580, AS AMENDED, RELATING TO MENTAL HEALTH TREATMENT OF A PERSON FOUND TO BE MENTALLY ILL AND IN NEED OF INVOLUNTARY TREATMENT, SO AS TO PROVIDE PROCEDURES AUTHORIZING THE COURT TO REQUIRE A LAW ENFORCEMENT OFFICER TO TAKE A PERSON INTO PROTECTIVE CUSTODY IF THE PERSON WAS ORDERED TO OUTPATIENT TREATMENT AND DID NOT ATTEND; TO AMEND SECTION 44-17-900, RELATING TO IMMUNITY FROM LIABILITY FOR A SUPERINTENDENT OF A MENTAL HEALTH FACILITY WHO LEGALLY PARTICIPATED IN THE RELEASE OR DISCHARGE OF A PATIENT FROM A MENTAL HEALTH FACILITY, SO AS TO EXTEND THE IMMUNITY TO DIRECTORS OF FACILITIES, PHYSICIANS, HEALTH CARE PROVIDERS, EXAMINERS, INTERESTED PERSONS, AND LAW ENFORCEMENT OFFICERS; TO AMEND SECTION 44-22-150, AS AMENDED, RELATING TO THE REQUIREMENT THAT A PERSON IN A MENTAL HEALTH FACILITY OR A DRUG ABUSE FACILITY MAY NOT BE SUBJECTED TO RESTRAINT, SECLUSION, OR PHYSICAL COERCION UNLESS AUTHORIZED IN WRITING BY A PHYSICIAN, SO AS TO EXTEND THE AUTHORITY TO ORDER SUCH TREATMENT TO A LICENSED INDEPENDENT CONTRACTOR; TO AMEND SECTION 44-52-50, AS AMENDED, RELATING TO PROCEDURES FOR EMERGENCY ADMISSION FOR PERSONS WHO ARE CHEMICALLY DEPENDENT AND IN NEED OF TREATMENT, SO AS TO PROVIDE THAT IF A PERSON IS NOT TAKEN INTO CUSTODY WITHIN SEVENTY-TWO HOURS OF THE ISSUANCE OF THE PROBATE COURT ORDER AUTHORIZING TAKING THE PERSON INTO CUSTODY, THE ORDER EXPIRES; TO ADD SECTION 44-52-55 SO AS TO AUTHORIZE AND PROVIDE PROCEDURES FOR A LAW ENFORCEMENT OFFICER TO TAKE A PERSON INTO CUSTODY IF THE OFFICER REASONABLY BELIEVES THE PERSON IS SUFFERING FROM CHEMICAL DEPENDENCY AND POSES A RISK OF HARM TO HIMSELF OR OTHERS.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    Section 44-17-410 of the 1976 Code, as last amended by Act 253 of 2000, is further amended by adding before the last paragraph:

    "Prior to the hearing, if the designated examiners determine that the patient is no longer mentally ill to the extent that involuntary treatment is required, the examiners shall cause a supplemental report to be submitted to the court. Upon receipt of a supplemental report stating that the patient is no longer mentally ill to the extent involuntary treatment is required, and setting forth the reasons for the examiners' conclusions, the court shall dismiss the petition and the patient must be discharged immediately by the facility."

SECTION    2.    Section 44-17-430 of the 1976 Code, as amended by Act 296 of 1992, is further amended to read:

    "Section 44-17-430.    If a person believed to be mentally ill and because of this condition likely to cause serious harm if not immediately hospitalized cannot be examined by at least one licensed physician pursuant to Section 44-17-410 because the person's whereabouts are unknown or for any other reason, the petitioner seeking commitment pursuant to Section 44-17-410 shall execute an affidavit stating a belief that the individual is mentally ill and because of this condition likely to cause serious harm if not hospitalized, the ground for this belief, and that the usual procedure for examination cannot be followed and the reason why. Upon presentation of an affidavit, the judge of probate for the county in which the individual is present may require a state or local law enforcement officer to take the individual into custody for a period not exceeding twenty-four hours. If the person is not taken into custody within seventy-two hours of the issuance of the order, the order expires. During which the person's detention the person must be examined by at least one licensed physician as provided for in Section 44-17-410(2). The individual taken into custody has the right to representation by an attorney. If within the twenty-four hours the person in custody is not examined by a licensed physician or, if upon examination the physician does not execute the certification provided for in Section 44-17-410(2), the proceedings must be terminated and the individual in custody must be released immediately. Otherwise, proceedings must be held pursuant to Section 44-17-410(3)."

SECTION    3.    The 1976 Code is amended by adding:

    "Section 44-17-435.    (A)    If a law enforcement officer observes a person conducting himself or herself in a manner that causes the law enforcement officer to reasonably believe that the person is mentally ill and because of that condition poses a likelihood of serious harm to himself or others, the law enforcement officer may take the person into protective custody and transport the person to the local mental health center, or facility designated by the local mental health center, for examination and preadmission screening and evaluation of psychiatric emergencies.

    (B)    Upon arrival at the mental health center or a facility designated by the mental health center, the law enforcement officer who took the person into protective custody pursuant to this section shall complete a written affidavit under oath pursuant to Section 44-17-410(1). If the person is subsequently the subject of a hearing held pursuant to Section 44-17-570 which is based upon the affidavit, the law enforcement officer may be given notice pursuant to Section 44-17-550 but is not required to appear at the hearing.

    (C)    The local mental health center or the facility designated by the mental health center shall arrange for an examination of the person in protective custody by a licensed physician. If within twenty-four hours of being taken into protective custody the person is not examined by a licensed physician or if upon examination the physician does not execute the certification provided for in Section 44-17-410(2), the person in protective custody must be released.

    (D)    The taking of a person into protective custody pursuant to this section is not an arrest. The officer shall inform the person that he or she is being held in protective custody and is not under arrest. However, a law enforcement officer taking an individual into protective custody may use that kind and degree of force necessary, including reasonable precautions for self protection.

    (E)    a law enforcement officer, examining physician, or staff person of the mental health center or designated facility who acts in accordance with this section is immune from civil liability."

SECTION    4.    Section 44-17-580 of the 1976 Code, as amended by Act 253 of 2000, is further amended to read:

    "Section 44-17-580.    If, upon completion of the hearing and consideration of the record, the court finds upon clear and convincing evidence that the person is mentally ill, needs involuntary treatment and because of his condition:

    (1)    lacks sufficient insight or capacity to make responsible decisions with respect to his treatment; or

    (2)    there is a likelihood of serious harm to himself or others, it shall order in-patient or out-patient treatment at a mental health facility, public or private, designated or licensed by the Department of Mental Health. If the court finds that he is not mentally ill and not in need of involuntary treatment, it shall dismiss the proceedings.

    If the court orders out-patient treatment and the respondent fails to adhere to the prescribed out-patient treatment program, on report of the failure by the treatment facility the court may require a law enforcement officer to take the respondent into custody for a period not exceeding twenty-four hours during which time the person must be examined by a licensed physician who shall report the results of the examination to the court. If upon examination the physician executes the certification provided for in Section 44-17-410(2), the respondent must be transported to the hospital designated by the certification. If within twenty-four hours the respondent is not examined by a licensed physician or if upon examination the physician does not execute the certification provided for in Section 44-17-410(2), the respondent must be released. The court, with or without a report or examination, and upon notice to the respondent and his counsel may order a supplemental hearing and further order in-patient treatment in a designated or licensed facility. The probate court issuing the order shall maintain jurisdiction over the person for the purpose of supplemental proceedings as herein set forth and every order issued pursuant to this paragraph shall be so conditioned. An order for in-patient treatment at a mental health facility shall not raise a presumption of incompetency and no rights shall be denied a person unless specifically ordered by the court."

SECTION    5.    Section 44-17-900 of the 1976 Code is amended to read:

    "Section 44-17-900.    Neither the superintendent director of a mental health facility, a licensed physician, health care provider, designated examiner, interested person, law enforcement officer nor any other person legally lawfully participating in the release or discharge of a patient, including the release of a patient from custody following a preadmission examination, shall be liable either civilly or criminally on account of such participation."

SECTION    6.    Section 44-22-150 of the 1976 Code, as last amended by Act 253 of 2000, is further amended to read:

    "Section 44-22-150.    (A)    No patient residing in a mental health or alcohol and drug abuse facility may be subjected to mechanical restraint, seclusion, or a form of physical coercion or restraint unless the action is authorized in writing by the attending or on-call physician or licensed independent practitioner as being required by the medical needs of the patient and unless the use of the restraint is a last resort in treatment. For purposes of this section a 'licensed independent practitioner' is an individual who is recognized by both state law and the department as having the independent authority to order restraint or seclusion of patients.

    (B)    Each use of a restraint or seclusion and justification for it, including a reasonably specific description of the actions by the patient that warranted restraint or seclusion, must be entered into the clinical record of the patient. These authorizations are not valid for more than twenty-four hours during which the patient's condition must be charted at fifteen-minute intervals. If the orders are extended beyond the twenty-four hours, the extension must have written authorization and justification by the attending physician or licensed independent practitioner and then only after he has interviewed and evaluated the patient on an individual basis. Within twenty-four hours a copy of the authorization and justification must be forwarded to the facility supervisor for review. Patients under mechanical restraint must have the restraints removed at least every two hours for motion and exercise. Mechanical restraint must be employed to lessen the possibility of physical injury and to ensure the least possible discomfort. In an emergency such as the occurrence of, or serious threat of, extreme violence, injury to others, personal injury, or attempted suicide, if the director of the facility or the attending physician or licensed independent practitioner is not available, designated staff may authorize, in writing, mechanical restraint, seclusion, or physical restraint as necessary. The use must be reported immediately to the director or attending physician or licensed independent practitioner who shall authorize its continuance or cessation and shall make a written record of the reasons for the use and of his review. The record and review must be entered into the patient's record. The facility must have written policies and procedures governing the use of mechanical restraints, seclusion, and physical restraints and clearly delineate, in descending order, the personnel who may authorize the use of restraints in emergency situations. The authorization must be posted on each ward.

    (C)    'Restraint' shall does not include medical protective devices used as a regular part of medical, diagnostic, or surgical procedures, used to posturally support a patient, or used to obtain or maintain normative bodily functioning."

SECTION    7.    The third paragraph of Section 44-52-50 of the 1976 Code as amended by Act 397 of 1988, is further amended to read:

    "If a person refuses to submit to an examination, or may not be examined because his whereabouts are unknown or for any other reason, the person seeking emergency admission shall execute a written affidavit stating that he believes the person to be chemically dependent, and because of this condition, poses a substantial risk of harm to himself or others if not immediately hospitalized, the grounds for the belief, and that the usual procedure for examination may not be followed and the reason therefor. Upon presentation of the affidavit, the court may require any law enforcement officer to take a person into custody for a period not exceeding twenty-four hours. If the person is not taken into custody within seventy-two hours of issuance of the order, the order expires. During the detention he the person must be examined by a licensed physician. If within the twenty-four hours the person in custody is not examined by a licensed physician or, if upon examination, the physician does not execute the certificate required, the proceedings must be terminated and the individual in custody must be immediately released."

SECTION    8.    The 1976 Code is amended by adding:

    "Section 44-52-55.    (A)    If a law enforcement officer observes a person conducting himself or herself in a manner that causes the law enforcement officer to reasonably believe that the person is suffering from chemical dependency and, as a result of that condition, poses a substantial risk of physical harm to himself or herself or others, the law enforcement officer may take the person into protective custody and transport the person to the local mental health center, or a facility designated by the local mental health center, for examination and evaluation.

    (B)    Upon arrival at the mental health center or a facility designated by the mental health center, the law enforcement officer who took the person into protective custody pursuant to this section shall complete a written affidavit under oath pursuant to Section 44-52-50.

    (C)    The local mental health center or the facility designated by the mental health center shall arrange for an examination of the person in protective custody by a licensed physician. If within twenty-four hours of being taken into protective custody the person is not examined by a licensed physician or if upon examination the physician does not execute the certification provided for in Section 44-52-50, the person in protective custody must be released.

    (D)    The taking of a person into protective custody pursuant to this section is not an arrest. The officer shall inform the person that he or she is being held in protective custody and is not under arrest. However, a law enforcement officer taking an individual into protective custody may use that kind and degree of force necessary, including reasonable precautions for self protection.

    (E)    A law enforcement officer, an examining physician, or staff person of the mental health center or the designated facility who acts in accordance with this section is immune from civil liability."

SECTION    9.    This act takes effect upon approval by the Governor.

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