SDLRC - Codified Law 27A-12-3 - Notice of rights furnished patient--Display.

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.

Source: SL 1975, ch 181, § 26; SDCL Supp, § 27-4-22.2; SL 1991, ch 220, § 170.

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.

Source: SDC 1939, § 30.0124; SDCL, § 27-7-42; SL 1975, ch 181, §§ 8, 18, 22, 27; SDCL Supp, §§ 27-4-22.1, 27-7-35.1, 27-7-54; SL 1989, ch 21, § 93; SL 1991, ch 220, § 175; SDCL, §§ 27A-12-2, 27A-12-7, 27A-12-9; SDCL Supp, § 27A-12-18.

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).

Source: SL 1975, ch 181, § 31; SDCL Supp, § 27-7-35.2; SL 1990, ch 170, § 6; SL 1991, ch 220, § 177; SDCL Supp, § 27A-12-22; SL 1993, ch 213, § 125.

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.

Source: SL 1991, ch 220, § 178.

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.

Source: SL 1975, ch 181, § 23; SDCL Supp, § 27-7-66; SL 1991, ch 220, § 180; SDCL, § 27A-12-23.

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.

Source: SL 1975, ch 181, §§ 6, 7; SDCL Supp, §§ 27-7-50, 27-7-51, 27-7-53; SL 1987, ch 198, § 21; SL 1991, ch 220, § 186; SDCL Supp, § 27A-12-11; SDCL, §§ 27A-12-12, 27A-12-13; SL 2000, ch 129, § 15.

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.

Source: SL 1991, ch 220, § 187; SL 2000, ch 129, § 16.

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.

Source: SL 1975, ch 181, § 5; SDCL Supp, § 27-7-52; SL 1991, ch 220, § 191; SDCL, § 27A-12-15.

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.

Source: SL 1991, ch 220, § 192.

27A-12-3.11. Emergency surgery or treatment--Documentation of necessity--Immunity from liability--Health care--Sterilization.

Emergency surgery and any other emergency medical procedures may be performed without the patient's consent or court or board order if the life of the recipient is threatened and there is not time to obtain consent or order or if the patient is incapacitated as defined in § 34-12C-1 and substitute informed consent is obtained from an appointed guardian, an attorney-in-fact, or a person with authority 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.

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, electroconvulsive therapy, and such other medical treatment as may be necessary for the treatment of the person's mental illness may also be administered if the attending physician and one other physician determine that administration of such medication, therapy, or treatment is necessary to prevent significant deterioration of the person's severe mental illness and that the person's potential for improvement would be significantly impaired if such treatment is not provided. The medication, electroconvulsive therapy, or such other necessary medical treatment may be continued for up to ten days and may be extended for one additional ten day period if a petition is filed pursuant to § 27A-12-3.13 within the first ten day period. The reason for such treatment shall be documented in the patient's medical record. Electroconvulsive therapy may be administered only by a physician. Any physician who in good faith orders and administers psychotropic medication, electroconvulsive therapy, or such other necessary medical treatment under this section is immune from any civil liability for such order and administration, unless injury results from gross negligence or willful or wanton misconduct.

Health care may be performed with the patient's informed consent, or if the patient is incapacitated, by a substitute informed consent from an appointed guardian, an attorney-in-fact, or a person with authority pursuant to chapter 34-12C. Informed consent may be withdrawn at any time, is effective immediately upon communication of the withdrawal of consent to the treatment provider, and shall thereafter be reduced to writing.

No sterilization may be authorized under authority of this title for a person incapable of providing written informed consent.

Source: SL 1975, ch 181, § 21; SDCL Supp, § 27-7-57; SL 1991, ch 220, § 194; SDCL § 27A-12-19; SL 1996, ch 183; SL 2012, ch 149, § 32; SL 2013, ch 122, § 2; SL 2014, ch 130, § 1.

27A-12-3.12. Right to refuse being subjected to research or experimental or intrusive procedures or medication--Exceptions.

Except as provided for in §§ 27A-12-3.11 and 27A-12-3.15, any adult person who is admitted as an inpatient or an outpatient or who is involuntarily committed or who is detained on a mental illness hold prior to a commitment hearing has the right to refuse to be subjected to research and experimental or intrusive procedures and may also refuse any treatment including electroconvulsive therapy and psychotropic medication. If an involuntarily committed person refuses treatment, then psychotropic medication, electroconvulsive therapy, and such other medical treatment as may be necessary for the treatment of the person's mental illness may be administered if it is ordered by the court or the board under the criteria in § 27A-12-3.15.

Source: SL 1989, ch 237, § 1; SL 1991, ch 220, § 196; SDCL Supp, § 27A-12-11.3; SL 1992, ch 190, § 3; SL 1995, ch 163, § 2; SL 1996, ch 184, § 1; SL 2012, ch 149, § 33.

27A-12-3.13. Petition for authority to administer psychotropic medication or other medical treatment--Examination and physician opinion of incapacity to consent required.

The administrator or attending psychiatrist or facility director may petition the circuit court or the board of mental illness for the authority to administer psychotropic medication and such other medical treatment as may be necessary for the treatment of the person's mental illness, including electroconvulsive therapy, 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 and such other medical treatment, including electroconvulsive therapy, will be medically beneficial to the person and is necessary because:

(1) The person presents a danger to self or others;

(2) The person cannot improve or the person's condition may deteriorate without the medication and such treatment; or

(3) The person may improve without the medication or such treatment but only at a significantly slower rate;

and the person's treating physician determines that the person is incapable of consenting to such treatment 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 such treatment.

Source: SL 1989, ch 237, § 3; SL 1991, ch 220, § 198; SDCL Supp, § 27A-12-11.5; SL 1999, ch 141, § 2; SL 2012, ch 149, § 34.

27A-12-3.14. Service of petition and notice of hearing--Content--Appointment of counsel--Hearing.

Copies of the petition and notice of hearing shall be personally served by the sheriff or an elector of any state not a party to the action that is specifically designated by the court or board on the person immediately upon the filing of the petition but no less than five calendar days before the hearing. 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 or board 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 or board 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.

Source: SL 1989, ch 237, § 4; SL 1990, ch 201; SL 1991, ch 220, § 200; SDCL Supp, § 27A-12-11.6; SL 1995, ch 162, § 2; SL 2001, ch 149, § 1; SL 2012, ch 149, § 35; SL 2014, ch 130, § 2.

27A-12-3.15. Order for psychotropic medication or other treatment when person incapable of consent.

If the court or board finds by clear and convincing evidence that the person is incapable of consenting to treatment with psychotropic medication and such other medical treatment as may be necessary for the treatment of the person's mental illness, including electroconvulsive therapy, 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 medical treatment and the administration of the recommended psychotropic medication and medical treatment is essential under the criteria in § 27A-12-3.13, the court or board may order the administration of psychotropic medication and medical treatment, including electroconvulsive therapy.

Source: SL 1988, ch 217, § 1; SL 1989, ch 237, § 7; SL 1991, ch 220, § 205; SDCL Supp, §§ 27A-12-11.1, 27A-12-11.9; SL 1997, ch 165, § 19; SL 2012, ch 149, § 36.

27A-12-3.16. Time limit for administration of psychotropic medication or other medical treatment--Termination of order--Review of necessity of treatment.

The court or board may authorize the administration of psychotropic medication and such other medical treatment, including electroconvulsive therapy, as may be necessary for the treatment of the person's mental illness for not more than one year. The court's or board's order shall terminate if the person is judicially restored or restored by the board as competent to consent to or refuse the administration of psychotropic medication and such other medical treatment as may be necessary for the treatment of the person's mental illness 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 and such medical treatment 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 or board's treatment order. The necessity of treatment 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 Human Services Center, a personal examination need not take place as part of the review. If the treating physician or the medical director or consulting psychiatrist determines that the treatment ordered is no longer necessary under the criteria in § 27A-12-3.13, the treatment order shall terminate. A copy of the results of the personal examination and the determinations of the treating physician and the medical director or consulting psychiatrist shall be made part of the person's medical records.

Source: SL 1989, ch 237, §§ 8-10; SL 1991, ch 220, § 209; SDCL Supp, §§ 27A-12-11.10--27A-12-11.12; SL 1995, ch 163, § 3; SL 1999, ch 141, § 1; SL 2012, ch 149, § 37.

27A-12-3.17. Compensation of appointed attorney by county of residence.

The attorney appointed by a court or board to represent the interests of the person shall be paid by the person's county of residence. The attorney shall be compensated for the attorney's reasonable services and for necessary expenses incurred incident to the proceedings at the rate fixed by the circuit court and in an amount approved by the court or the board.

Source: SL 1989, ch 237, § 5; SL 1991, ch 220, § 211; SDCL Supp, § 27A-12-11.7; SL 2012, ch 149, § 38.

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.

Source: SL 1975, ch 181, § 19; SDCL Supp, § 27-7-42.1; SL 1991, ch 220, § 212; SDCL, § 27A-12-8.

27A-12-3.19. Personal appearance at hearing not compulsory--Presenting evidence.

The person may appear personally at any hearing and testify on his or her own behalf, but the person may not be compelled to do so. The person may subpoena and cross-examine witnesses and present evidence. If the person chooses not to appear, the person's attorney shall state on the record that the person has been informed of the hearing and of the right to appear and the person chooses not to exercise that right. Documentation of the reasons for the person's decision are not 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.

Source: SL 1989, ch 237, § 6; SL 1991, ch 220, § 213; SDCL § 27A-12-11.8; SL 2012, ch 149, § 39.

27A-12-3.21. Experimental research and hazardous procedure to be approved by secretary of social 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 social services.

Source: SL 1975, ch 181, § 21; SDCL Supp, § 27-7-55; SL 1989, ch 21, § 94; SL 1991, ch 220, § 219; SDCL Supp, § 27A-12-21; SL 2012, ch 149, § 41.

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.

Source: SL 1991, ch 220, § 220.