ENTITLED, An Act to revise certain provisions relating to the evaluation and treatment of persons
with mental illness.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That § 27A-1-1 be amended to read as follows:
27A-1-1. Terms used in this title mean:
(1) "Administrator," that person designated by the secretary of social services to discharge the
administrative functions of the Human Services Center including the delegation of
responsibilities to the appropriate Human Services Center staff;
(2) "Appropriate regional facility," a facility designated by the department for the prehearing
custody of an individual apprehended under authority of this title which is as close as
possible in the immediate area to where the apprehension occurred; and is no more
restrictive of mental, social, or physical freedom than necessary to protect the individual
or others from physical injury. In determining the least restrictive facility, considerations
shall include the preferences of the individual, the environmental restrictiveness of the
setting, the proximity of the facility to the patient's residence, and the availability of
family, legal and other community resources and support;
(3) "Center," the South Dakota Human Services Center;
(4) "Chronic disability," a condition evidenced by a reasonable expectation, based on the
person's psychiatric history, that the person is incapable of making an informed medical
decision because of a severe mental illness, is unlikely to comply with treatment as shown
by a failure to comply with a prescribed course of treatment outside of an inpatient setting
on two or more occasions within any continuous twelve month period, and, as a
consequence, the person's current condition is likely to deteriorate until it is probable that
the person will be a danger to self or others;
(5) "Co-occurring substance use disorder," refers to persons who have at least one mental
disorder as well as an alcohol or drug use disorder;
(6) "Danger to others," a reasonable expectation that the person will inflict serious physical
injury upon another person in the near future, due to a severe mental illness, as evidenced
by the person's treatment history and the person's recent acts or omissions which
constitute a danger of serious physical injury for another individual. Such acts may
include a recently expressed threat if the threat is such that, if considered in the light of
its context or in light of the person's recent previous acts or omissions, it is substantially
supportive of an expectation that the threat will be carried out;
(7) "Danger to self,"
(a) A reasonable expectation that the person will inflict serious physical injury upon
himself or herself in the near future, due to a severe mental illness, as evidenced
by the person's treatment history and the person's recent acts or omissions which
constitute a danger of suicide or self-inflicted serious physical injury. Such acts
may include a recently expressed threat if the threat is such that, if considered in
the light of its context or in light of the person's recent previous acts or omissions,
it is substantially supportive of an expectation that the threat will be carried out; or
(b) A reasonable expectation of danger of serious personal harm in the near future, due
to a severe mental illness, as evidenced by the person's treatment history and the
person's recent acts or omissions which demonstrate an inability to provide for
some basic human needs such as food, clothing, shelter, essential medical care, or
personal safety, or by arrests for criminal behavior which occur as a result of the
worsening of the person's severe mental illness;
(8) "Department," the Department of Social Services;
(9) "Essential medical care," medical care, that in its absence, a person cannot improve or a
person's condition may deteriorate, or the person may improve but only at a significantly
slower rate;
(10) "Facility director," that person designated to discharge the administrative functions of an
inpatient psychiatric facility, other than the center, including the delegation of
responsibilities to the appropriate facility staff;
(10A) "Health care," any care, treatment, service, or procedure to maintain, diagnose, or treat a
person's physical or mental condition;
(11) "Incapacitated by the effects of alcohol or drugs," that a person, as a result of the use of
alcohol or drugs, is unconscious or the person's judgment is otherwise so impaired that
the person is incapable of realizing and making a rational decision with respect to the
need for treatment;
(12) "Informed consent," consent voluntarily, knowingly, and competently given without any
element of force, fraud, deceit, duress, threat, or other form of coercion after
conscientious explanation of all information that a reasonable person would consider
significant to the decision in a manner reasonably comprehensible to general lay
understanding;
(13) "Inpatient psychiatric facility," a public or private facility or unit thereof which provides
mental health diagnosis, observation, evaluation, care, treatment, or rehabilitation when
the individual resides on the premises including a hospital, institution, clinic, mental
health center or facility, or satellite thereof. An inpatient psychiatric facility may not
include a residential facility which functions primarily to provide housing and other such
supportive services when so designated by the department;
(14) "Inpatient treatment," mental health diagnosis, observation, evaluation, care, treatment,
or rehabilitation rendered inside or on the premises of an inpatient psychiatric facility
when the individual resides on the premises;
(15) "Least restrictive treatment alternative," the treatment and conditions of treatment which,
separately and in combination, are no more intrusive or restrictive of mental, social, or
physical freedom than necessary to achieve a reasonably adequate therapeutic benefit. In
determining the least restrictive alternative, considerations shall include the values and
preferences of the patient, the environmental restrictiveness of treatment settings, the
duration of treatment, the physical safety of the patient and others, the psychological and
physical restrictiveness of treatments, the relative risks and benefits of treatments to the
patient, the proximity of the treatment program to the patient's residence, and the
availability of family and community resources and support;
(16) "Mental health center," any private nonprofit organization which receives financial
assistance from the state or its political subdivisions and which is established or organized
for the purpose of conducting a program approved by the department for the diagnosis and
treatment, or both, of persons with mental and emotional disorders;
(17) "Next of kin," for the purposes of this title, the person's next of kin, in order of priority
stated, is the person's spouse if not legally separated, adult son or daughter, either parent
or adult brother or sister;
(18) "Outpatient commitment order," an order by the board committing a person to outpatient
treatment, either following a commitment hearing or upon a stipulation of the parties
represented by counsel;
(19) "Outpatient treatment," mental health diagnosis, observation, evaluation, care, treatment
or rehabilitation rendered inside or outside the premises of an outpatient program for the
treatment of persons with mental, emotional, or substance use disorders;
(20) "Physician," any person licensed by the state to practice medicine or osteopathy or
employed by a federal facility within the State of South Dakota to practice medicine or
osteopathy;
(21) "Program director," the person designated to discharge the administrative functions of an
outpatient program for treatment of persons with mental, emotional, or substance use
disorders;
(22) "Resident," "patient,' ' or "recipient," any person voluntarily receiving or ordered by a
board or court to undergo evaluation or treatment;
(23) "Secretary," the secretary of the Department of Social Services;
(24) "Severe mental illness," substantial organic or psychiatric disorder of thought, mood,
perception, orientation, or memory which significantly impairs judgment, behavior, or
ability to cope with the basic demands of life. Mental retardation, epilepsy, other
developmental disability, alcohol or substance abuse, or brief periods of intoxication, or
criminal behavior do not, alone, constitute severe mental illness;
(25) "Treatment," a mental health diagnosis, observation, evaluation, care, and medical
treatment as may be necessary for the treatment of the person's mental illness or
rehabilitation;
(26) "Treatment order," an order by the board of mental illness, as part of an inpatient or
outpatient commitment order, or as a separate order by the circuit court or board after an
inpatient or outpatient commitment ordered by the board, that requires a program of
treatment as specified in this title.
Section 2. That § 27A-12-3.11 be amended to read as follows:
27A-12-3.11. 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 only. 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.
Section 3. That § 27A-1-3 be amended to read as follows:
27A-1-3. As used in this title, the term, qualified mental health professional, means a physician
licensed pursuant to chapter 36-4 or a member of one of the professions listed as follows who is in
good standing with any relevant licensing or certification boards:
(1) A psychologist who is licensed to practice psychology in South Dakota;
(2) An advanced practice nurse with at least a master's degree from an accredited education
program and either two years or one thousand hours of clinical experience that includes
mental health evaluation and treatment;
(3) A certified social worker with a master's degree from an accredited training program and
two years of supervised clinical experience in a mental health setting;
(4) A person who has a master's degree in psychology from an accredited program and two
years of supervised clinical mental health experience and who meets the provision of
subdivision 36-27A-2(2);
(5) A counselor who is certified under chapter 36-32 as a licensed professional counselor--mental health;
(6) A counselor who is certified under chapter 36-32 as a licensed professional counselor and
has two years of supervised clinical experience in a mental health setting and who is
employed by the State of South Dakota or a mental health center;
(7) A therapist who is licensed under chapter 36-33 as a marriage and family therapist with
two years of supervised clinical experience in a mental health setting;
(8) A physician assistant who is licensed under chapter 36-4A and either two years or one
thousand hours of clinical experience that includes mental health evaluation and
treatment; or
(9) A professional as listed in subdivisions (1) to (8), inclusive, who is employed by the
federal government and currently licensed in that profession in another state, in good
standing with the licensing board, and acting within the scope of the professional's
license.
Except as provided in subdivision (9) and § 36-4-20, each qualified mental health professional
shall meet all licensing and certification requirements promulgated by the State of South Dakota for
persons engaged in private practice of the same profession in South Dakota. However, the private
practice licensure requirements for persons referred to in subdivisions (3) and (6) do not apply to
those employed by the State of South Dakota, mental health centers, or organizations that have a
formal clinical supervision arrangement by an employed person who is licensed at the private
practice level.
Section 4. That § 27A-4-3 be amended to read as follows:
27A-4-3. The secretary of social services shall appoint an administrator of the South Dakota
Human Services Center.
The administrator shall be the chief executive officer of the South Dakota Human Services
Center. The administrator shall serve at the pleasure of the secretary of social services.
Section 5. That § 27A-10-21 be amended to read as follows:
27A-10-21. If any law enforcement officer or qualified mental health professional in a clinic or
hospital has probable cause to believe that a person requires emergency nonmedical intervention
pursuant to § 27A-10-1, as an alternative to a petition for commitment pursuant to chapter 27A-10,
or apprehension and transfer to an appropriate regional facility pursuant to § 27A-10-3, the officer
or qualified mental health professional may refer the person to the direct supervision of any member
of a mobile crisis team or crisis intervention team certified law enforcement officer. If any member
of the mobile crisis team or the crisis intervention team certified law enforcement officer accepts
direct supervision of the person, in writing, the member or officer may:
(1) Resolve the intervention on a voluntary basis, at the clinic or hospital, at the person's
home, or other location, or with the assistance of any public or private community service
that the patient is willing to accept. Any team member may request the assistance of law
enforcement for the voluntary transfer of the person; or
(2) Direct that the law enforcement officer proceed with the apprehension of the person and
transport the person to either:
(a) An appropriate regional facility for an emergency intervention and a mental illness
examination as provided in § 27A-10-6; or
(b) An approved treatment facility offering detoxification services for chemical
dependency emergencies as provided in §§ 34-20A-55 and 34-20A-56.
Section 6. That § 27A-10-23 be amended to read as follows:
27A-10-23. Any law enforcement officer or authority, or qualified mental health professional in
a clinic or hospital, who in good faith transferred direct supervision of a person to a mobile crisis
team or a crisis intervention team certified law enforcement officer, is immune from any civil
liability for such referral. Any member of a mobile crisis team or a crisis intervention team certified
law enforcement officer, whose actions, in the supervision, examination, or placement of a person
in compliance with this section and §§ 27A-10-20 to 27A-10-22, inclusive, are taken in good faith,
are immune from any civil liability for the referral, supervision, examination, transfer, or placement
of the person. The immunity from civil liability under this section and §§ 27A-10-20 to 27A-10-22,
inclusive, does not apply if injury results from gross negligence or willful or wanton misconduct.
Any law enforcement officer or authority who acts in compliance with subsection 27A-10-21(2)(b)
and § 34-20A-57 is not criminally or civilly liable for the officer's or authority's actions.
Section 7. That § 27A-15-12 be amended to read as follows:
27A-15-12. A parent who consented to a minor's admission under this chapter has the right to
effect an immediate discharge of the minor upon written notice of the parent's intention to terminate
inpatient treatment, unless the facility director, administrator, or attending psychiatrist has probable
cause to believe the minor requires emergency intervention under § 27A-15-30 and should remain
in the facility, and initiates a mental illness hold. The hold may not exceed twenty-four hours from
the facility's receipt of the parent's written notice to terminate. The facility director, administrator,
or psychiatrist shall immediately complete and submit a petition for immediate intervention under
the provisions of § 27A-15-30 to the chair of the county mental illness board where the minor is
located. For purposes of this section, the term, immediately, means the earliest possible time during
normal waking hours. If a petition is not filed with the chair within twenty-four hours of the initiation
of the hold, the minor shall be discharged. Upon informing a staff member of the inpatient
psychiatric facility of the intention to terminate inpatient treatment, the facility shall promptly supply
the parent with the required written form. If a § 27A-15-30 petition is completed for submission to
the chair of the county board, the minor's admission shall continue pending the decision of the chair
under § 27A-15-34.
Section 8. That § 27A-15-45 be amended to read as follows:
27A-15-45. Except as otherwise provided herein, no minor may be administered or subjected to
experimental procedures or interventions of any type. A parent's, guardian's, custodian's, or minor's
consent alone may not authorize such experimental procedures, interventions, or treatments. If the
minor's treating psychiatrist determines, in writing, that any experimental treatments are necessary
and the least restrictive treatment alternative medically necessary for improvement of the minor's
serious emotional disturbance, the administrator or facility director shall immediately petition the
circuit court pursuant to § 27A-15-49 for authorization to institute such treatment upon the following
conditions being met:
(1) The treating psychiatrist's opinion is concurred in by a consulting psychiatrist or, if a
consulting psychiatrist is not available, a consulting physician; and
(2) The oral and written informed consent of the parent, or guardian and minor if over
sixteen, are obtained.
The parent's or guardian's and minor's informed consent, the treating psychiatrist's determination,
and the consulting psychiatrist's or physician's concurrence shall become a part of the minor's
medical records.
Section 9. That § 27A-15-46 be amended to read as follows:
27A-15-46. Except as otherwise provided by this title, psychotropic medication and other forms
of treatment may be administered to a minor under the age of sixteen only with the oral and written
informed consent of the minor's parent or guardian. If oral and written consent are unable to be
obtained by the facility within a reasonable time, efforts to obtain such consent shall be documented
in the minor's record and either oral or written consent shall then be sufficient for this purpose.
Psychotropic medication may be administered only if prescribed by the minor's treating psychiatrist
upon the psychiatrist's written determination that the medication is the least restrictive treatment
alternative medically necessary for the improvement of the minor's serious emotional disturbance.
The parent's or guardian's informed consent and the treating psychiatrist's determination shall
become part of the minor's medical records.
Section 10. That § 27A-15-47 be amended to read as follows:
27A-15-47. Except as otherwise provided by this title, psychotropic medication and other
treatment may be administered to a minor sixteen years of age or older only with the oral and written
informed consent of the minor and the minor's parent, legal guardian, or custodian. If oral and
written consent are unable to be obtained by the facility within a reasonable time, efforts to obtain
such consent shall be documented in the minor's record and either oral or written consent shall then
be sufficient for this purpose.
Psychotropic medication may be administered only if prescribed by the minor's treating
psychiatrist upon the psychiatrist's written determination that the medication is the least restrictive
treatment alternative medically necessary for improvement of the minor's serious emotional
disturbance. The informed consent of the minor and the minor's parent, legal guardian, or custodian
and the treating psychiatrist's determination shall become part of the minor's medical records. The
failure to obtain the informed consent of the minor shall be treated as a refusal of treatment pursuant
to § 27A-15-48.
Section 11. That § 27A-15-48 be amended to read as follows:
27A-15-48. A minor sixteen years of age or older, whether involuntarily committed or admitted
by a parent, has the right to refuse psychotropic medication. Such minor also has the right to refuse
convulsive or shock therapy or electric shock. If psychotropic medication or convulsive or shock
therapy or electric shock is prescribed by the minor's treating psychiatrist upon that treating
psychiatrist's written determination that the treatment is the least restrictive treatment alternative
medically necessary for improvement of the minor's serious emotional disturbance, which opinion
is concurred in by a consulting physician, the treatment may be administered with the informed
consent of the minor's parent, guardian, or other legal custodian pending the judicial determination
required in § 27A-15-50. Documentation of the minor's refusal, and the treating psychiatrist's written
determination and the consulting physician's concurrence shall be made part of the minor's medical
records.
Section 12. That § 27A-15-50 be amended to read as follows:
27A-15-50. If the court finds by clear and convincing evidence that the continued administration
of the prescribed medication or the treatment requested pursuant to § 27A-15-45 is the least
restrictive treatment alternative medically necessary to improve the minor's serious emotional
disturbance, the court may authorize the continued administration of the medication or the treatment
for a period not to exceed ninety days. The court's order shall be immediately delivered to the
administrator or other director and be made part of the minor's medical records. In addition, the
court's order shall be immediately delivered to the minor and his parent, guardian, or custodian.
The court's order authorizing the continued administration of the prescribed medication or the
treatment shall terminate sooner upon the minor's attaining the age of eighteen, the minor's discharge
from the facility or program, the withdrawal of consent by the minor's parent, guardian, or custodian,
or withdrawal of the minor's consent required in subdivision 27A-15-45(2), or upon a determination
made pursuant to § 27A-15-51, that the administration of the medication or the treatment is no
longer the least restrictive treatment alternative medically necessary to improve the minor's serious
emotional disturbance.
Section 13. That § 27A-15-51 be amended to read as follows:
27A-15-51. The administration of psychotropic medication or the provision of treatments
pursuant to § 27A-15-45, to a minor pursuant to this chapter shall be continuously monitored by the
minor's treating psychiatrist. The treatment shall be reviewed and approved as being the least
restrictive treatment alternative medically necessary for improvement of the minor's serious
emotional disturbance at least every thirty days by the treating psychiatrist and the medical director
of the facility or, if the facility does not have a medical director, a consulting psychiatrist or
physician after a personal examination of the minor. If the treating psychiatrist or the medical
director or such consulting psychiatrist or physician determines that the treatment is no longer the
least restrictive treatment alternative medically necessary for improvement of the minor's serious
emotional disturbance, the treatment shall be immediately terminated. A copy of the personal
examination and the treating psychiatrist's and the medical director's or consulting psychiatrist's or
physician's determinations shall be made part of the minor's medical records.
An Act to revise certain provisions relating to the evaluation and treatment of persons with mental
illness.
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I certify that the attached Act
originated in the
HOUSE as Bill No. 1020
____________________________
Chief Clerk
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____________________________
Speaker of the House
____________________________
Chief Clerk
____________________________
President of the Senate
____________________________
Secretary of the Senate
House Bill No. 1020
File No. ____
Chapter No. ______
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Received at this Executive Office
this _____ day of _____________ ,
20____ at ____________ M.
By _________________________
for the Governor
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The attached Act is hereby
approved this ________ day of
______________ , A.D., 20___
____________________________
Governor
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STATE OF SOUTH DAKOTA,
ss.
Office of the Secretary of State
Filed ____________ , 20___
at _________ o'clock __ M.
____________________________
Secretary of State
By _________________________
Asst. Secretary of State
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