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Legal Ethics of Mental Health in South Carolina Stephen P. Williams, JD Vice-President and Chief Operating Officer New Horizon Family Health Services,

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Presentation on theme: "Legal Ethics of Mental Health in South Carolina Stephen P. Williams, JD Vice-President and Chief Operating Officer New Horizon Family Health Services,"— Presentation transcript:

1 Legal Ethics of Mental Health in South Carolina Stephen P. Williams, JD Vice-President and Chief Operating Officer New Horizon Family Health Services, Inc. Greenville, SC

2 Involuntary Commitment SECTION A person may be admitted to a public or private hospital, mental health clinic, or mental health facility for emergency admission upon: (1) written affidavit under oath by a person stating: (a) a belief that the person is mentally ill and because of this condition is likely to cause serious harm to himself or others if not immediately hospitalized; (b) the specific type of serious harm thought probable if the person is not immediately hospitalized and the factual basis for this belief;

3 (2) a certification in triplicate by at least one licensed physician stating that the physician has examined the person and is of the opinion that the person is mentally ill and because of this condition is likely to cause harm to himself through neglect, inability to care for himself, or personal injury, or otherwise, or to others if not immediately hospitalized.

4 The certification must contain the grounds for the opinion. A person for whom a certificate has been issued may not be admitted on the basis of that certificate after the expiration of three calendar days after the date of the examination

5 (3) within forty-eight hours after admission, exclusive of Saturdays, Sundays, and legal holidays, the place of admission shall forward the affidavit and certification to the probate court of the county in which the person resides or, in extenuating circumstances, where the acts or conduct leading to the hospitalization occurred.

6 Within forty-eight hours of receipt of the affidavit and certification exclusive of Saturdays, Sundays, and legal holidays, the court shall conduct preliminary review of all the evidence to determine if probable cause exists to continue emergency detention of the patient.

7 If the court finds that probable cause does not exist, it shall issue an order of release for the patient. Upon a finding of probable cause, the court shall make a written order detailing its findings and may order the continued detention of the patient.

8 With each affidavit and certification, the treatment facility shall provide the court with a designated examiner appointment form listing the names of two designated examiners at the treatment facility. If the court appoints these two designated examiners, the examination must be performed at the treatment facility and a report must be submitted to the court within seven days from the date of admission

9 The court may appoint independent designated examiners who shall submit a report to the court within the time allotted above. In the process of examination by the designated examiners, previous hospitalization records must be considered.

10 At least one of the examiners appointed by the court must be a licensed physician. The examiners' reports must include the grounds for the examiners' conclusions.

11 If the report of the designated examiners is that the patient is not mentally ill to the extent that involuntary treatment is required and reasons have been set forth in the report, the court shall dismiss the petition and the patient must be discharged immediately by the facility unless the designated examiners report that the patient is a chemically dependent person in need of emergency commitment and that procedures have been initiated pursuant to Section

12 In which case, emergency commitment procedures must be complied with in accordance with Chapter 52, and the facility shall transfer the patient to an appropriate treatment facility as defined by Section , provided that confirmation has been obtained from the facility that a bed is available; transportation must be provided by the department.

13 If the report of the designated examiners is that the patient is mentally ill and involuntary treatment is required, the court may order that the person be detained, appoint counsel for the patient if counsel has not been retained, and fix a date for a full hearing to be held pursuant to Section within fifteen days from the date of admission. The court shall give notice of the hearing pursuant to Section

14 The examiners' report must be available to the person's counsel before the full hearing. The person must be given the opportunity to request an independent designated examiner pursuant to Section If before the hearing, the designated examiners determine that the patient is no longer mentally ill to the extent that involuntary treatment is required, they shall cause a supplemental report to be submitted to the court.

15 If the court receives a supplemental report at least forty-eight hours before the hearing 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.

16 Procedures for Judicial Commitment SECTION Petition for judicial commitment; certificate of designated examiner. Proceedings for involuntary hospitalization by judicial procedure may be commenced by filing a written petition with the probate court of the county where he is present or where he is a resident by any interested person or the superintendent of any public or private mental institution in which he may be. The petition shall be served on the person and his attorney and if he has no attorney then on him and a member of his immediate family.

17 The petition shall be accompanied by a certificate of a designated examiner stating that he has examined the person and is of the opinion that he is mentally ill and should be hospitalized or a written statement by the petitioner that the person has refused to submit to an examination by a designated examiner.

18 The certificate or the written statement shall state the underlying facts upon which the examiner or petitioner, if the person has refused to submit to an examination, bases his conclusions and not merely the conclusions themselves.

19 SECTION Notice of petition and right to counsel. Upon receipt of a petition the court shall give notice thereof to the proposed patient, to his legal guardian, if any, and to any other interested person. This notice shall also indicate the proposed patient's right to counsel.

20 SECTION Appointment of counsel; examination and record thereof. Within three days after the petition for judicial commitment set forth in Section is filed, exclusive of Saturdays, Sundays, and legal holidays, the court shall appoint counsel to represent the person if counsel has not been retained and the court shall appoint two designated examiners, one of whom must be a licensed physician, to examine the person and report to the court their findings as to the person's mental condition and need for treatment.

21 The examination must be made at a suitable place not likely to have a harmful effect upon the person's health. On a report of the designated examiners of refusal to submit to examination, the court shall order the person to submit to examination.

22 If the person refuses to obey the court's order the court may require a state or local law enforcement officer to take the person into custody for a period not exceeding twenty- four hours during which time the person must be examined by the two designated examiners.

23 The person's attorney must be notified before the person's confinement. If the examiners do not execute the certification provided for in this section within twenty-four hours, the proceeding must be terminated and the person must be released. An adequate record of the examination must be made and offered to the person's counsel. If the conclusions of the examination are that the person is mentally ill the underlying facts must be recorded as well as the conclusions.

24 The person must be given the opportunity to request an additional examination by an independent designated examiner. If the court determines that the person is indigent the examination must be conducted at public expense.

25 SECTION Hearing shall be held if examiners find mental illness. If the report of the two designated examiners, other than the independent designated examiner, is to the effect that they are of the opinion that the person is not mentally ill to the extent that involuntary treatment is required, the court shall terminate the proceedings and dismiss the petition immediately upon receipt of the report. If the report of the two designated examiners, other than the independent designated examiner, is divided,

26 the court may terminate the proceedings or may designate a third examiner, who must be a psychiatrist, and charge the three examiners to render a majority opinion within five days. If the report of the designated examiners is to the effect that they are of the opinion that the person is mentally ill and involuntary treatment is required, the court shall conduct a hearing.

27 For persons admitted pursuant to Section , the hearing may be held on the same day as the designated examinations unless the person or his counsel objects. Upon objection by the person or his counsel, the court shall delay the hearing. For persons whose admission is sought under Section , the court immediately shall fix a date for and give notice of a hearing, to be held not less than five nor more than seven days, excluding Saturdays, Sundays, and legal holidays, from receipt of the report.

28 SECTION Hospitalization of person if court finds mental illness and other conditions. (A) 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, the court shall order in-patient or out-patient treatment at a mental health facility, public or private, designated by the Department of Mental Health and may order out-patient treatment following in-patient treatment. If the court finds that the person is not mentally ill and not in need of involuntary treatment, the court shall dismiss the proceedings.

29 (B) If the court orders out-patient treatment and the respondent fails to adhere to the prescribed out-patient treatment order or program, the treatment facility shall report the failure to the court and the court upon notice to the respondent and his counsel shall order a supplemental hearing and may further order in-patient treatment in a designated facility as needed.

30 The probate court issuing the order for out- patient treatment shall maintain jurisdiction over the person for the purpose of supplemental proceedings as set forth in this chapter and every order issued pursuant to this subsection must be so conditioned.

31 An order for in-patient treatment at a mental health facility does not raise a presumption of incompetency and no rights may be denied a person unless specifically ordered by the court.

32 Admission, Detention and Removal of Patients at State Mental Health Facilities SECTION Protective custody; procedures. (A) Except as provided for in Sections and , if a law enforcement officer observes a person conducting himself in a manner that causes the law enforcement officer to reasonably believe that the person is mentally ill or is suffering from chemical dependency and because of that condition poses a likelihood of serious harm to himself or others or if a criminal offense that carries a penalty of less than one year and that does not involve a victim who could seek

33 a warrant for the person's arrest has occurred, the law enforcement officer may take the person into protective custody and transport the person to the local mental health center or a crisis stabilization program, if available in their jurisdictions, for examination and pre- admission screening and evaluation of psychiatric and chemical dependency emergencies.

34 (B) Upon arrival at the mental health center or a crisis stabilization program, if available in their jurisdictions, 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 (1).

35 If the person is subsequently the subject of a hearing, and if the law enforcement officer who completed the affidavit is given notice of the hearing pursuant to Section , the officer may, but is not required to, appear at the hearing.

36 (C) The local mental health center or a crisis stabilization program, if available in their jurisdictions, shall arrange for an examination of the person in protective custody by a licensed physician. The center or crisis stabilization program, if available in their jurisdictions, may detain the person for up to twenty-four hours for the purpose of psychiatric evaluation and examination by a licensed physician.

37 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 (2), the person in protective custody must be released

38 If the physician examining the person completes the certification provided for in Section (2), the center or crisis stabilization program, if available in their jurisdictions, may continue to detain the person pending transportation by a law enforcement officer to the hospital designated by the certification, as provided for in Section

39 (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.

40 (E) Except when a person is injured as a result of intentional injury, gross negligence, or a wanton disregard for their personal safety, a law enforcement officer, examining physician, or staff person of a mental health center or a designated facility who acts in accordance with this section is immune from civil liability.

41 (F) For purposes of this section, "crisis stabilization program" means a community- based psychiatric program providing short- term, intensive, mental health treatment in a nonhospital setting for persons who are experiencing a psychiatric crisis and who are either unable to safely function in their daily lives or are a potential threat to themselves or the community, with treatment available twenty-four hours a day, seven days a week.

42 (G) A law enforcement officer may transport a person as provided in this section to a local mental health center or a crisis stabilization program beyond the officer's jurisdiction if the law enforcement agency employing the officer has a written memo of understanding with the local mental health center or crisis stabilization program receiving the person taken into custody.

43 (H) For purposes of this section, "local mental health center or crisis stabilization program" includes such center or program in an adjoining county or if there is not such a center or program in an adjoining county, then such a center or program in the nearest location.

44 SC Code Adult Health Care Consent Act "Unable to consent" means unable to appreciate the nature and implications of the patient's condition and proposed health care, to make a reasoned decision concerning the proposed health care, or to communicate that decision in an unambiguous manner. This term does not apply to minors, and this chapter does not affect the delivery of health care to minors unless they are married or have been determined judicially to be emancipated.

45 A patient's inability to consent must be certified by two licensed physicians, each of whom has examined the patient. However, in an emergency the patient's inability to consent may be certified by a health care professional responsible for the care of the patient

46 if the health care professional states in writing in the patient's record that the delay occasioned by obtaining certification from two licensed physicians would be detrimental to the patient's health.

47 A certifying physician or other health care professional shall give an opinion regarding the cause and nature of the inability to consent, its extent, and its probable duration. If a patient unable to consent is being admitted to hospice care pursuant to a physician certification of a terminal illness required by Medicare, that certification meets the certification requirements of this item.

48 This standard applies to the provision of all health care, regardless of the patient’s mental health diagnosis and without regard to whether their treatment is voluntary or involuntary

49 SC Code Physicians' Patient Records Act SECTION Physician not to release records without express written consent. Except as otherwise provided by law, a physician shall not honor a request for the release of copies of medical records without the receipt of express written consent of the patient or person authorized by law to act on behalf of the patient.

50 SECTION Physician's release of summary or portion in lieu of full record. Except as otherwise provided by law, a physician may refuse to release a copy of the entire medical record and may furnish instead a summary or portion of the record when he has a reasonable belief that release of the information contained in the entire record would cause harm to the patient's emotional or physical well-being,

51 the emotional or physical well-being of another person who has given information about the patient to the physician, or where release of the information is otherwise prohibited by law. An unreasonable refusal to release the entire medical record constitutes unprofessional conduct and subjects the physician to disciplinary action of the South Carolina State Board of Medical Examiners.

52 However, notwithstanding the provisions of this section, a physician may not refuse to release the entire record or a portion of the record if the information is requested by a licensed attorney representing the patient, when the request is accompanied by a written authorization signed by the patient, the patient's legal guardian, or the patient's personal representative, a licensed attorney representing the patient,

53 or by an insurance company with reference to an application for life or health insurance or the payment and adjudication of claims relating to life and health insurance or if the information is requested with reference to the payment or adjudication of personal injury claims.

54 SECTION Records not to be withheld because of unpaid medical bills. Medical records may not be withheld because of an unpaid bill for medical services.

55 SC Common Law The relationship between a physician and patient is confidential and information may only be released by the physician with the consent of the patient. Violation of this duty of confidentiality constitutes a common law tort of breach of confidentiality and can result in money damages. McCormick v. England, 494 SE2d 431, 328 SC 627 (1997)

56 But, Policy of SC Board of Medical Examiners S.C. Code Ann. Sections (F)(7), (8), and (12), among other things, establish a violation of the Principles of Medical Ethics as "misconduct" for which disciplinary action may be taken by the Board. Regulation 81-60(D) of the Principles of Medical Ethics provides that "[a] physician shall respect the rights of patients, of colleagues and of other health professionals, and shall safeguard patient confidences within the constraints of the law."

57 When a patient files a claim or lawsuit of any type which places in issue the patient's physical or mental condition or the quality of medical treatment received, the patient is deemed to have partially released the physician from the ethical duty of confidentiality concerning such matters in issue, to the extent that the physician, in his discretion, may discuss such matters with any attorney involved in the claim or lawsuit, upon written verification of the attorney's relationship and the medical issues in the claim or lawsuit.

58 This discussion may cover any aspect of the physical and/or mental conditions of the patient pertinent to the claim or lawsuit, including, but not limited to, patient history, subjective complaints, findings, diagnosis, treatment, counseling, prognosis, and the extent of any permanent and/or partial disability or impairment. The physician is not required to discuss the patient with anyone,

59 including the patient's own attorney, except when subpoenaed or when otherwise compelled by law. Testimony at trial or by deposition or affidavit should be given by the physician only with the patient's permission or when subpoenaed or otherwise compelled by law.

60 Although a physician who conducts himself in accordance with this policy will avoid disciplinary action by the Board of Medical Examiners, a physician may still face civil liability under some circumstances, and should therefore consult private counsel where doubt exists as to what actions are appropriate (emphasis added)

61 SC Code Section Confidences of patients of mental illness or emotional conditions An evidentiary “privilege” is established for non-MDs who provide treatment for mental illness or emotional conditions including a licensed master social worker, a licensed independent social worker or a registered nurse

62 (A) Certificates, applications, records, and reports made for the purpose of this chapter or Chapter 9, Chapter 11, Chapter 13, Chapter 15, Chapter 17, Chapter 20, Chapter 23, Chapter 24, Chapter 25, Chapter 27, or Chapter 52, and directly or indirectly identifying a mentally ill or alcohol and drug abuse patient or former patient or individual whose commitment has been sought, must be kept confidential, and must not be disclosed unless: (1) the individual identified or the individual's guardian consents; (2) a court directs that disclosure is necessary for the conduct of proceedings before the court and that failure to make the disclosure is contrary to public interest; SECTION Confidentiality of records; exceptions; violations and penalties.

63 (3) disclosure is required for research conducted or authorized by the department or the Department of Alcohol and Other Drug Abuse Services and with the patient's consent; (4) disclosure is necessary to cooperate with law enforcement, health, welfare, and other state or federal agencies, or when furthering the welfare of the patient or the patient's family;

64 (5) disclosure to a court of competent jurisdiction is necessary for the limited purpose of providing a court order to SLED in order to submit information to the federal National Instant Criminal Background Check System (NICS), established pursuant to the Brady Handgun Violence Prevention Act of 1993, Pub.L , and in accordance with Article 10, Chapter 31, Title 23; or (6) disclosure is necessary to carry out the provisions of this chapter or Chapter 9, Chapter 11, Chapter 13, Chapter 15, Chapter 17, Chapter 20, Chapter 23, Chapter 24, Chapter 25, Chapter 27, or Chapter 52.

65 (B) Nothing in this section: (1) precludes disclosure, upon proper inquiry, of information as to a patient's current medical condition to members of the patient's family, or the Governor's Office of Ombudsman; or (2) requires the release of records of which disclosure is prohibited or regulated by federal law. (C) A person who violates this section is guilty of a misdemeanor, and, upon conviction, must be fined not more than five hundred dollars or imprisoned not more than one year, or both.

66 Confidentiality of Alcohol and Drug Treatment Records Under Federal Law 42 CFR Part 2 Alcohol and Drug Treatment Records are confidential and can only be released based on patient consent and a few other limited reasons


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