Psychiatric Emergency Admission in South Carolina and Hospital Emergency Departments: Legal Considerations Presented by:

Mark W. Binkley, J.D. General Counsel, South Carolina Department of Mental Health

This work is for general information only and is not offered as legal advice. As needed, consult with legal counsel for your organization. All rights reserved. Reproduction, use, and/or distribution of all or part of this work in any form without the express written permission of SCDMH is prohibited. © 2012 SCDMH.

Involuntary  Treatment  &  Deten1on:      Emergency  Admission,  Commitment,  Deten1on  Order  

1)  Governed by Constitutional & State Law 2)  Required procedures and criteria are specified in

State Law (§44-17-410, S.C. Code of Laws) 3)  If legal requirements met, State law allows but

does not require, involuntary treatment and detention

4)  Failure to follow State law may expose participants to claims of false arrest, assault and battery, defamation, denial of civil rights, etc.

Code of Laws of South Carolina (SC Code): 1)  Adult with Mental Illness: Chapter 17 2)  Child in Need of Treatment: Chapter 24 3)  Adult Chemical Dependency: Chapter 52 While they are separate laws, the legal protections, procedures, and forms are similar. County Probate Court has jurisdiction over Civil Commitment matters. Some processes ancillary to to the civil commitment process may vary based on local resources or practice.

Other  relevant  laws  include:  

42 CFR 413: EMTALA obligations 42 CFR Part 482: Conditions of Participation §44-7-260(E), SC Code: Emergency Care §44-66-10, SC Code: Adult HealthCare Consent Act

“Emergency  Admission?”      “Civil  Commitment?”    

Both are significant legal and medical events that permit involuntary detention Both are governed by and subject to specific constitutional and statutory law But they are different legal/medical

events

“Civil  Commitment”  

1) A Probate Court may civilly commit a person after a court hearing by finding “clear and convincing evidence” that the person needs involuntary treatment for mental illness.

2) This hearing may occur after an Emergency

Admission, or in a non-emergency, before involuntary treatment & detention. (Judicial Admission”)

“Emergency  Admission”      

1)If the person has a behavioral health emergency requiring immediate, involuntary hospitalization, the person may be hospitalized using the

Emergency Admission procedure under State Law.

2)Emergency Admission permits short

term involuntary hospitalization while judicial civil commitment proceedings are underway.

LOCAL    EMERGENCY  SERVICES    MENTAL  HEALTH  CENTER    

 SC Code §44-17-450 & 460:

1) Prior to a DMH psychiatric Emergency Admission, examining physician must consult Mental Health Center (MHC) about the person’s condition & admission alternatives.

2) Consult is not a substitute for local hospital EMTALA or other required emergency services. Some hospitals contract with local MHCs to provide other services or the county provides additional funds for additional MHC emergency services.

LOCAL    EMERGENCY  SERVICES    HOSPITAL  EMERGENCY  DEPT  (“ED”)  

Basic EMTALA obligations (within ED capability): Examine/Evaluate/stabilize Emergency Medical Condition (EMC) including one of psych origin prior to a transfer to accepting hospital with greater ability to treat. Emergency Admission criteria are substantially the same as for an EMTALA Psych/A&D EMC. If the EMC is stabilized, the person may no longer meet legal criteria for Emergency Admission. 

EMERGENCY    ADMISSION  PROCESS  (Psychiatric  Emergency  §44-­‐17-­‐410)  

1)   APPLICATION (sworn statement with facts

supporting belief that person needs Emergency Admission)

2)   EXAMINATION/CERTIFICATION (physician examination and opinion that subject person needs Emergency Admission)

3)   CUSTODY/TRANSPORT for admission (Law Enforcement, maybe family, EMS?)

A sworn statement from Applicant including specific facts supporting Applicant’s belief that (ALL THREE): 1)  Person has a mental illness which 2)  presents an immediate risk of serious

harm to self/others, 3)  if person is not immediately

hospitalized.

APPLICATION (By Anyone)

1) If applicant also states that the person can’t be examined voluntarily, Probate Court may issue a Detention Order.

2) Detention Order (a.k.a. “pick up

order”, valid for 72 hours) requires that law enforcement take custody of person for up to 24 hrs solely for physician to examine person for possible Certification for Emergency Admission.

APPLICATION (Cont.)

EXAMINATION/CERTIFICATION  (Addi1onal  EMTALA  Obliga1ons  May  Apply)  

1)  If examining physician DOES NOT Certify Emergency Admission: The process ends (with any Detention Order). If non-emergency, and involuntary treatment still needed, may Petition Probate Court for a Judicial Admission.

2) If examining physician DOES Certify: The

completed Application & Certification (Emergency Admission “papers”) then permit Emergency Admission to facility named on Certification.

CUSTODY/TRANSPORT  (Addi1onal  EMTALA  Obliga1ons  May  Apply)  

 1)  The  completed  Emergency  Admission  papers  

authorize  law  enforcement  to  take  custody  and  transport  person  to  facility  named  in  Cer1fica1on.    

 2)  If  Emergency  Admission  to  facility  named  on  

Cer1fica1on  is  by  transfer  from  local  hospital  ED,  addi1onal  EMTALA  requirements  usually  apply.    

     

Frequently    Asked    

Ques1ons:  

“Shouldn’t local hospital ED doctors always re-certify papers, even after they expire, because: The patient has already been committed to DMH?” The patient is a ward of the State or

otherwise is under SCDMH or other State jurisdiction? ”

ANSWER: Emergency Admission papers permit, but do not require an Emergency Admission. 1)  While in the ED, the person is neither

civilly committed or emergently admitted, and is not under “jurisdiction” of or a “ward” of the State.

2)  Unless and until the person is transferred and admitted to a hospital named in the Certification, the person remains a patient of the ED.

3)  Even when the person is the subject of Emergency Admission papers, the person is still presumed by law to have legal capacity.

ANSWER:  •  A  person  for  whom  a  cer1ficate  has  been  issued  may  not  be  admibed  on  the  basis  of  that  cer1ficate  acer  the  expira1on  of  three  calendar  days  acer  the  date  of  the  examina1on;  

 •  When  the  cer1fica1on  expires,  whatever  authority  the  ED  has  to  involuntarily  detain  the  person  based  on  the  cer1fica1on  also  expires.

ANSWER:

• If before the Certification expires (original or subsequent), the person then no longer needs Emergency Admission, the person may be re-examined by a physician & “decertified” for Emergency Admission.

• This MAY also end further EMTALA and other ED obligations.

ANSWER:

• In addition to the authority which completed Emergency Admission papers, (Application & Certification) provide the ED, hospitals may have other authority to hold and treat the patient (e.g. §44-66-10 SC SC Code, Adult Health Care Consent Act; §44-13-10, SC Code, County designated facility for temporary detention pending a DMH admission.)

     

“If the ED physician states/demonstrates that the patient is “medically stable”, how can the SCDMH hospital refuse to accept the patient if there is an available bed?”

ANSWER:    

•  In addition to SC Code requirements permitting a Emergency Admission, if admission is from a hospital ED, EMTALA requires an “appropriate transfer” to a “receiving facility” (e.g. DMH hospital) which has accepted the transfer for treatment and care within the receiving facility’s individual “capacity and capability”.

ANSWER: DMH facilities are limited license facilities without medical or surgical capability. In some cases, an ED patient could be “stable” in the view of the ED physician, but the patient’s medical care and treatment needs may exceed the DMH facility’s capability, even if there is an available bed.

ANSWER:    

•  Also, EMTALA (and prudent practice) usually requires that the hospital

attempting transfer, consider the transfer risks and benefits and then determine and document that during the transfer (e.g. to a DMH facility), that the patient’s condition is not likely to significantly deteriorate.

ANSWER:    

•  A patient’s “stability” for transfer from a local ED should consider the “capacity and capability” of the receiving facility, as well as duration (often more than 1 hr) and type of transport (often handcuffed in back of law enforcement vehicle.)