Psychiatric Emergency Admission in South Carolina … · South Carolina and Hospital Emergency...
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Transcript of Psychiatric Emergency Admission in South Carolina … · South Carolina and Hospital Emergency...
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.
“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.