STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
October 14, 1975
Mrs. Mary Dell Cody
Yankton County State's Attorney
Post Office Box 203
Yankton, South Dakota 57078
OFFICIAL OPINION NO. 75-172
County boards of mental illness
Dear Mrs. Cody:
You have requested an interpretation of several provisions of the South Dakota mental illness law as amended by the 1975 Legislature. The specific questions you have asked include:
1. SDCL 27-7-17.1 provides, in part, that if commitment proceedings are discontinued at any time, all records of the proceedings shall be sealed. What does the term "commitment proceedings" include?
2. Your second series of questions concerns the duty of the qualified mental health professional or physician member on the county board of mental illness to examine persons petitioned against.
(a) If an application for treatment pursuant to SDCL 27-7-9 is accompanied by certificates from two physicians is examination by the board's mental health professional required?
(b) Is the board member required to examine individuals brought to the Human Services Center under the emergency commitment laws?
(c) Is the board member required to examine individuals eligible for the 90 day review pursuant to SDCL 27-7-68?
(d) Is the board member required to examine individuals who are afforded a rehearing after one year in the Human Services Center pursuant to SDCL 27-7-69?
To answer your first question, SDCL 1-27-1 and 1-27-3 provide for public inspection of public records unless specifically declared to be kept secret by law. SDCL 27-7-17 further provides that the findings of the county board of mental illness and other documents relating to the case are to be filed in the office of the clerk of courts. The issue here is to what extent SDCL 27-7-17.1 declares such findings and records of commitment hearings to be secret. This section reads as follows:
27 -7 -17.1. - If commitment proceedings are discontinued at any time, all records of the proceedings shall be sealed. Inspection of a sealed record may be permitted by the circuit court only upon petition by the person who is the subject of such records and only to those persons named in the petition.
The board is given a number of alternatives by statute with regard to the disposition of a matter brought before it by petition. In summary, the board has a period of thirty days or such additional time as may be reasonable in which to determine the mental condition of a person. At that point in time the board is to take final action as to the proper treatment. (SDCL 27-7 -19 to 27-7-19.2, inclusive.)
It is my opinion that the term "commitment proceedings" as used in SDCL 27 -7 -17.1 refers to those proceedings up to the time at which final action is taken by the board pursuant to SDCL 27-7-19 and 13.1. At such time the person is "committed" to a mental health facility and the board has completed the "commitment" stage of its duties. The statutory provisions found at SDCL 27-7-68,69 for a ninety-day review and a one-year rehearing respectively, and which you cite in your request, must be viewed as post-commitment and for the purpose of evaluating the prescribed treatment program.
It should further be noted that the public is not entitled to any of the information from the record of a person acquired in the course of providing him with mental health services. Such information is confidential and subject to disclosure only to certain parties and under circumstances specified by law. SDCL 27-7-59 et seq.
With regard to your question number 2, SDCL 27-7-9 reads as follows:
27-7-9. If the applicant for treatment is accompanied by a qualified mental health professional's or physician's certificate, the board shall order the individual to be examined by the qualified mental health professional or physician member of the board. If the petition was not accompanied by a certificate, the board shall order the individual to be examined by its qualified mental health professional or physician board member and request the person charged with being mentally ill to appear and be examined before a qualified local mental health professional or physician, if available.
Thus, the qualified mental health professional or physician member of the board is required to examine the individual regardless of whether one or more physicians have previously conducted examinations. The Legislature apparently intended to provide for the additional examination by the board member as a safeguard for the benefit of the party alleged to be mentally ill. However, it mayor may not have contemplated the situation in which two or more non-board physicians or qualified mental health professionals have examined the individual. Nevertheless, the duty to examine is incumbent upon the board member. The answer to your question 2(a) is YES.
The answer to your question 2(b) is also YES. SDCL 27-7A-10 provides, in part, that "the hearing and procedures prior to the hearing shall be conducted in the same manner as provided in chapter 27-7." In keeping with the theory of safeguarding the rights of alleged mentally ill persons to a fair hearing I am of the opinion that an examination by the board member is one of the procedures to be followed.
The answer to your question 2(c) is NO. SDCL 27-7-68 states:
27-7-68. Every person committed to the center or a community mental health center shall be reviewed at the end of ninety days to determine if he continues to meet the criteria of one who is mentally ill and in need of treatment. Notice of the review shall be given to the patient ten days prior to the review. At the time said notice of review is given, the patient shall be informed of all evidence that will be considered to determine whether he continues to need treatment. Any evidence subsequently discovered shall immediately be transmitted to said patient.
The review shall be conducted by the county board wherein the facility is located.
I find nothing which would require an examination by the board member. However, the board would appear to have the discretionary authority to request or order such an examination.
The last question makes reference to SDCL 27-7-69 which reads, in part, as follows:
27-7-69. If a patient remains in the center or a community mental health center for eleven months and the administrator of the facility determines that the patient still requires treatment, the administrator shall petition the county board of mental illness wherein the facility is located ten days prior to the three hundred and sixty-fifth day for a rehearing. The chairman of the county board shall thereupon conduct a hearing within ten days of the receipt of the petition. The procedure utilized in the original hearing as provided in ยงยง 27-7-2 to 27-7-19.2, inclusive, including notice and right to an attorney shall be followed in the rehearing.
The effect of this section is to reopen the matter of the mental condition of a patient by requiring a hearing initiated by petition. The proceedings are to be conducted in a like manner as an original hearing.
Therefore, since SDCL 27-7-9 requires the mental health professional or physician member of the board to examine each individual in an original hearing, SDCL 27-7-69 also imposes that requirement for rehearing.
Respectfully submitted,
William Janklow
Attorney General
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