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
864-350-5276
spwilliams@newhorizonfhs.org
Involuntary Commitment
• SECTION 44-17-410
• 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;
• (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.
• 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
• (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.
• 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.
• 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.
• 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
• 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.
• 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.
• 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 44-52-50.
• 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 44-5210, provided that confirmation has been
obtained from the facility that a bed is
available; transportation must be provided by
the department.
• 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 44-17-570 within
fifteen days from the date of admission. The
court shall give notice of the hearing pursuant
to Section 44-17-420
• 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 44-17-530.
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.
• 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.
Procedures for Judicial Commitment
• SECTION 44-17-510. 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.
• 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.
• 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.
• SECTION 44-17-520. 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.
• SECTION 44-17-530. Appointment of counsel;
examination and record thereof.
Within three days after the petition for judicial
commitment set forth in Section 44-17-510 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.
• 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.
• 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 twentyfour hours during which time the person must
be examined by the two designated
examiners.
• 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.
• 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.
• SECTION 44-17-540. 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,
• 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.
• For persons admitted pursuant to Section 44-17410, 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 44-17-510, 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.
• SECTION 44-17-580. 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.
• (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.
• The probate court issuing the order for outpatient 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.
• 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.
Admission, Detention and Removal of
Patients at State Mental Health Facilities
• SECTION 44-13-05. Protective custody; procedures.
• (A) Except as provided for in Sections 56-5-2930 and
56-5-2950, 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
• 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 preadmission screening and evaluation of
psychiatric and chemical dependency
emergencies.
• (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 44-17-410(1).
• 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 44-17-550,
the officer may, but is not required to, appear
at the hearing.
• (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.
• 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 44-17410(2), the person in protective custody must
be released
• If the physician examining the person
completes the certification provided for in
Section 44-17-410(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
44-17-440.
• (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) 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.
• (F) For purposes of this section, "crisis
stabilization program" means a communitybased psychiatric program providing shortterm, 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.
• (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.
• (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.
SC Code 44-66-10
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.
• 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
• 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.
• 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.
• 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
SC Code 44-115-10
Physicians' Patient Records Act
• SECTION 44-115-40. 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.
• SECTION 44-115-60. 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,
• 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.
• 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,
• 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.
• SECTION 44-115-70. Records not to be
withheld because of unpaid medical bills.
Medical records may not be withheld because
of an unpaid bill for medical services.
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)
But, Policy of SC Board of Medical
Examiners
• S.C. Code Ann. Sections 40-47-200(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."
• 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.
• 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,
• 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.
• 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)
SC Code Section 19-11-95
• 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
SECTION 44-22-100. Confidentiality of records; exceptions; violations and
penalties.
• (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;
• (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;
• (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. 103-159, 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.
• (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.
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