SOUTH CAROLINA DEPARTMENT OF MENTAL HEALTH
Columbia, South Carolina

OFFICE OF THE STATE COMMISSIONER OF MENTAL HEALTH DIRECTIVE NO. 739-90
(5-100)

TO:             All Organizational Components

SUBJECT:   Rights and Privileges of Patients in Psychiatric Facilities with Pending Criminal Charges

 

I. Purpose

The purpose of this directive is to implement South Carolina law and Department of Mental Health policy concerning the rights and privileges of patients with pending criminal charges. This directive also describes the different means by which individuals with criminal charges may be committed to psychiatric facilities of the Department of Mental Health, and sets forth guidelines to be followed in their treatment and discharge.

II. Policy

In accordance with S.C. Code Ann. 44-23-430 (1976), patients against whom criminal charges are pending shall have the same rights and privileges as other involuntarily hospitalized patients, given the necessary safety and security precautions incident to each patient's legal status and clinical presentation.

III. Definitions

The phrase "criminal charges pending" means that judicial proceedings have been initiated against the patient charging the patient with a criminal act and that such proceedings have not been terminated, either by conviction, acquittal or dismissal. Criminal proceedings are initiated by the arrest of the individual or the issuance of a warrant for their arrest. For purposes of this directive, juveniles who are the subject of a pending Family Court petition alleging the commission or attempted commission of a criminal act, shall be-considered as having criminal charges pending.

The phrase "noncriminal disposition" means the dismissal of a criminal charge without prejudice to the State to reinstate criminal proceedings on motion of the solicitor.

IV. Admission of Individuals-with Pending Criminal Charges

There are several ways juveniles or adults with pending criminal charges may be admitted to an inpatient psychiatric facility of the Department of Mental Health. Juveniles or adults may be admitted upon an Application for Emergency Admission, either from a detention facility or the community. Juveniles or adults may be committed for treatment by the Probate Court following a hearing on a petition for judicial commitment initiated while the individual was living in the community, was incarcerated in a detention facility or subsequent to the individual's admission to a facility of the Department for evaluation when it is determined that the individual lacks the capacity to stand trial and is unlikely to become fit to stand trial in the foreseeable future. An adult may be admitted pursuant to an Order from a Court of General Sessions to undergo an evaluation as to the individual's capacity to stand trial and/or such individual's criminal responsibility. A juvenile may be admitted pursuant to an Order from a Family Court to undergo an evaluation as to the juvenile's capacity to stand trial and/or the juvenile's criminal responsibility and/or to undergo a psychiatric evaluation.

1. Emergency Admissions

As with all psychiatric emergencies, individuals with criminal charges who are the subject of an Application for Emergency Admission should be screened prior to admission by personnel from the appropriate local mental health center. If the information available at the time of the application and screening indicates the individual is in need of emergency admission and that evaluation and treatment should initially take place in a facility with enhanced security, the individual shall be admitted to the Forensic Unit of the William S. Hall Psychiatric Institute, unless they are under the age of 18. Juveniles shall be admitted to the Child and Adolescent Unit of either the William S. Hall Psychiatric Institute or the Patrick B. Harris Psychiatric Hospital. If the individual is in need of emergency admission, but it appears from information available at the time of application and screening that the existing security provided in the admission units of the Department's psychiatric facilities is sufficient, the individual shall be admitted to the facility which serves the geographic catchment area from which the individual is being admitted.

In making the determination concerning the appropriate facility for admission, screening personnel should consider the following information, if available: (1) the nature of the charges; (2) whether the individual is currently confined in a detention facility; (3) any history of elopement or escape attempts. Screening personnel may also consult with staff from the detention facility, the certifying physician, and admissions staff from the Forensic Unit and alternate psychiatric facility concerning the appropriate facility for admission.

2. Commitment for Evaluation

Adults and juveniles with pending criminal charges ordered to undergo evaluation as to their capacity to stand trial and/or their criminal responsibility for their actions shall be evaluated by staff from the Forensic Unit of the William S.

Hall Psychiatric Institute. By Administrative Order of the Supreme Court, a copy of which is attached to this Directive as Appendix 1, it is the responsibility of the appropriate solicitor's office to schedule appointments for such evaluations with staff at the Forensic Unit. Staff at the Forensic Unit will make the determination as to whether the individual will be evaluated on an outpatient basis or whether such evaluation will require an inpatient admission to the Department of Mental Health.

Juveniles with pending criminal charges may be committed to the Department by the Family Court for a psychiatric evaluation. Every effort should be made by Department personnel working with court-involved children and families to encourage solicitors, youth services workers, public defenders, family court judges and social service personnel to obtain these evaluations from available community resources on an outpatient basis. If the evaluation in the community establishes a need for inpatient psychiatric treatment, the mental health center can thereafter arrange for the juvenile's admission to an appropriate facility.

V. Transfer of Patients with Pending Criminal Charges

Following admission of a patient with pending criminal charges, it may appear to the treating personnel that the patient, by virtue of his or her current condition, behavior, or treatment needs, would be better served in a different facility within the Department. The existence of pending criminal charges is but one factor in making a determination as to the most appropriate treatment program within which to continue the patient's care.

As with any transfer of patients between facilities, the concurrence of the recipient ' facility shall be sought. In the event a consensus cannot be achieved, the facilities may seek direction from the Senior Executive Director of Inpatient Services.

It is not necessary to obtain a noncriminal disposition of the charges prior to effecting a transfer of a patient between facilities. Pursuant to S.C. Code Ann. 44-23-210 (1976), when a patient is transferred between facilities, written notice shall be given to the patient's legal guardian, attorney and parents, spouse or nearest known relative. Following commitment, an involuntary transfer of a patient to the Forensic Unit of the William S. Hall Psychiatric Institute from another Department facility must be preceded by a hearing before the probate court on the reasons for the transfer and an order approving the transfer.

VI. Rights and Privileges of Patients with Pending Criminal Charges

Involuntary commitment to a state psychiatric hospital is a civil proceeding. Its principal function is to provide the patient needed care and treatment of his or her mental illness for the protection of the patient and/or the public. Accordingly, restrictions on a patient's freedom of movement and other rights must either be related to, and consistent with, the medical or treatment needs of the patient or justified by clinical concern for the safety of the patient or others based upon the patient's behavior, past or present. The imposition of restrictions or denial of privileges must take place on a case by case basis. In making such determinations, the treating staff should consider all known facts about the patient, including the existence of pending criminal charges. If restrictions or restraints are deemed necessary, the reasons therefor should be properly reflected in the patient's medical record.

VII. Discharge of Patients with Pending Criminal Charges

When a patient with pending criminal charges is no longer in need of hospitalization, the patient shall be discharged. In planning for the discharge treatment staff should take account of the pending criminal charges. If the patient was admitted from a detention facility, it is likely the individual will have to be returned to that facility. It is good practice to inform the solicitor's office in the circuit in which the charges are pending and the patient's attorney of the patient's expected discharge. If the patient will require follow-up care, such information should be provided to the patient, the appropriate mental health center, and detention center personnel, if applicable.

If the patient was committed following a determination that the patient lacked the capacity  to stand trial, discharge cannot take place until the facility director notifies the court in which the criminal charges are pending and a hearing is held on the issue of the patient's capacity to stand trial.

This directive rescinds and supersedes SCDMH Directive No. 351-75 and SCDMH Directive No. 497-79.

 

                                                                            bevilacqua1.GIF (3871 bytes)
                                                                                             Joseph J. Bevilacqua Ph.D.
                                                                             State Commissioner of Mental Health

May 10 , 1990


COMMITMENT TO DEPARTMENT OF MENTAL HEALTH
ADMINISTRATIVE ORDER

Pursuant to the provisions of Section 4, Article V, South Carolina Constitution,

IT IS ORDERED that the attached form order SCCA 221 (September 1987), a copy of which is attached and made a part of this order, is approved effective this date for the commitment of defendants to the custody of the South Carolina Department of Mental Health to determine capacity to stand trial and criminal responsibility pursuant to the   statutory provisions of this state.  This form order is required to be used for this purpose in the court of general sessions and the family court to the exclusion of all others until further order of the Chief Justice.

 

                                                                                                                        J.B. Ness
                                                                                                                        Chief Justice

September 25, 1987
Bamberg, South Carolina

 

FORM

STATE OF SOUTH CAROLINA, COUNTY OF ____________________

The State of South Carolina,

                                          -vs-

                                                    Defendant

o IN THE COURT OF GENERAL SESSIONS

o IN THE FAMILY COURT ORDER FOR COMPETENCY EVALUATION (AND CRIMINAL RESPONSIBILITY)

This matter comes before me on motion of _______ for an order requiring the defendant, _______ charged with _______ to submit to a psychiatric examination.

I have considered the  showing made in respect to the motion for such an order and am of the opinion that the defendant should be so examined pursuant to the statutory provisions of this State.

THEREFORE, IT IS ORDERED that the defendant shall be:

(a) Examined and observed at the appropriate facility of the South Carolina Department of Mental Health for a period not to exceed fifteen (15) days relative to his mental capacity to stand trial. (Section 44-23-410(1) or Section 44-23-410(2), code of Laws of South Carolina, 1976)

And shall/shall not be:

(b) Examined as aforesaid to determine whether or not the above-named defendant is criminally responsible pursuant to the McNaughten test for his actions on or about _____________________.

And shall/shall not be:

(c) If found responsible pursuant to the McNaughten test, examined as aforesaid to determine whether or not, because of mental disease or defect, the defendant lacked sufficient capacity to conform his conduct to the requirements of the law. (Section 17-24-20(A), Code of the South Carolina, 1976)

The ordered examination shall be requested by the solicitor and scheduled by the examining facility as soon as possible.  The defendant is to be transported to arrive at the examining facility at the time established by confirmed appointment with the staff of the examining facility.

The defendant continues the jurisdiction of this court.  If the defendant is currently free on bond or personal recognizance, such bail is hereby revoked to the extent necessary to carry out the provisions of this order.

If the examination and observation of a patient committed to the custody of the Department of Mental Health have not been concluded a the end of fifteen (15) days, the defendant may be kept in the custody of the said Department of Mental Health for an additional period not to exceed fifteen (15) days, provided the superintendent of the facility so requests in writing the additional period of observation and examination.

Within five (5) days of the examination or at the conclusion of the observation period, a written report shall be made to the court pursuant to Section 44-23-430, Code of  Laws of South Carolina, 1976, as amended.

If, in the judgement of the designated examiners or the superintendent of the facility, the defendant is presently mentally ill and in need of hospitalization, then the said defendant shall be retained in the custody of the Department of Mental Health until such time as the hearing, required and provided by Section 44-23-430, Code of Laws of South Carolina, 1976, as amended, may be conducted by this court,

AND SO IT IS ORDERED.

________________________ South Carolina ________________________________________________
                                                                          Judge (Name Typed)

 

This ________ day of ________ , 19 _____         ________________________________________
                                                                            Judge's Signature

I SO MOVE OR CONSENT: I SO MOVE OR CONSENT:
____________________________________
Solicitor (Name Typed)
____________________________________
Attorney for the Defendant (Name Typed)
____________________________________
Address
____________________________________
City, State, Zip
____________________________________
Solicitor's Signature
____________________________________
Attorney for the Defendant Signature

 

ADDITIONAL INFORMATION FOR FAMILY COURT EVALUATIONS

 

____________________________________
Guardian or Litem (Name Typed)
____________________________________
Parent(s) (Name Typed)
____________________________________
Address
____________________________________
Address
____________________________________
City, State, Zip
____________________________________
City, State, Zip
____________________________________
Telephone (Office and Home)
____________________________________
Telephone (Office and Home)