Who could address patient mistreatment and staffing concerns at South Carolina mental health facilities?

Plain-English summary

In June 2020, the South Carolina Attorney General explained how personnel decisions and patient-care complaints were handled within the state Department of Mental Health. For employees at a department facility, the hospital director generally considered hiring or removal first, subject to the state director's approval, with the Mental Health Commission holding ultimate approval authority under the statutes discussed. The commission also set department personnel policy and appointed or removed the state director.

The opinion said the commission could hear and investigate a complaint made by a patient or someone acting for a patient. It identified the department's Patient Advocacy program as one route for reporting staff mistreatment of patients. It said human resources personnel could likely answer questions about any internal employee reporting procedure. The office did not decide the truth of the particular constituent's allegations.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could the Mental Health Commission receive a patient-care complaint?
A: The office said the commission was authorized to investigate complaints from patients or people acting on their behalf.

Q: Who had authority over staffing decisions in a department hospital?
A: The opinion described initial decisions by a hospital director, subject to approval by the state director and ultimately the commission.

Q: What reporting route did the opinion identify for patient mistreatment?
A: It identified the Patient Advocacy program and said department human resources could likely clarify internal reporting procedures for employees.

Background and statutory framework

The opinion read statutes assigning policy and personnel roles to the Mental Health Commission, state director, and facility directors. It also described the statutory patient grievance system and the commission's complaint-investigation authority. It did not make factual findings about the incident reported to the legislator.

Citations and references

The legal authorities discussed above appear in the official opinion. The analysis addressed the request as presented in 2020.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-25-2020-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2020/06/CaskeyM-OS-10491-FINAL-Opinion-6-25-2020-HOUCK-02310990xD2C78-02313921xD2C78.pdf

Original opinion text

•^OUTtt
Alan Wilson
Attorney General

June 25, 2020

The Honorable Micajah P."Micah" Caskey, IV
Member

South Carolina House of Representatives
District No. 89
P.O. Box 5875

West Columbia, SC 29171

Dear Representative Caskey:

Attorney General Alan Wilson has referred your letter to the Opinions section. The request letter reads as follows:

I received the enclosed email from a constituent who asked me to request an opinion from you regarding the role, duties, and responsibilities of the Department of Mental Health (DMH) Director and Commission so that

employees of DMH can better ascertain when and how to approach the Director and Commission members when a need to do so arises.

Therefore, please accept this letter as my request for an opinion pursuant to South Carolina Code of Laws Title 44, § 44-9-30 and 44-9-40 and any other applicable sections of the South Carolina Code of Laws.

The constituent's email states that an employee with the DMH attempted to raise safety concerns regarding another employee's treatment of patients. It further conveys that attempts to escalate those concerns to the DMH Commission were unsuccessful because the matter was a

personnel issue in which "the Commission plays no role." Ultimately, the email requests an opinion regarding the "role, duties, and responsibilities of[the] Mental Health Commission and State Director of DMH" which specifically includes an interpretation of S.C. Code §§ 44-9-30, 40.

ILembertC. Dennis Building o Post Office Box 11549 . Columbia,SC 29211-1549 . Telephone 803-734-3970 . Facsh^ile 803-253-6283

The Honorable Micajah P. Caskey, IV
Page 2

June 25, 2020

Law/Analysis

The constituent's email raises two related issues regarding (1) the authority to make

personnel decisions for the State Department of Mental Health's (the "DMH") officers and employees and (2) how to report issues related to patient care. This opinion will outline relevant statutory authority to address these issues.

The

DMH

"Commission").

is

S.C.

governed

by

the

South

Code § 44-9-3 0(A)(1).

Carolina Mental

Health

Commission

(the

The Commission is statutorily directed to

"determine policies and promulgate regulations governing the operation of the department and the employment of professional and staff personnel." S.C.

Code

§ 44-9-30(C).

l

The

Commission is further tasked with appointment and removal authority for the State Director of Mental Health (the "Director").

S.C. Code § 44-9-40.

The Director is responsible for

administering the policies and regulations established by the Commission. See id. The Director is also directed to "appoint and remove all other officers and employees" of the DMH. Id This

appointment and removal authority is, however, subject to the approval of the Commission. Id. Further, the Director is authorized to appoint a director to each hospital under the DMH's jurisdiction. S.C. Code § 44-9-60.

These directors are "responsible for the employment of all

personnel" at the hospitals or other facilities that they oversee. Id.

These hospital directors'

discretion regarding employment is subject to the Director's approval. Id.

Based on these

authorities, personnel decisions concerning employees within a DMH facility are initially

considered by a hospital director, where applicable. The hospital director's personnel decisions are subject to the Director's approval which, in turn, are ultimately subject to the Commission's approval. See S.C. Code §§ 44-9-40, -60.

The Commission is authorized to hear and investigate complaints about patient care. See S.C. Code § 44-9-100 ("The commission may: ... (3) investigate complaints made by a patient or by a person on behalf of a patient."). Moreover, the DMH was statutorily required to "develop a system for documenting and addressing grievances concerning patient rights." S.C. Code § 4422-220(A).

The DMH was also required to "develop procedures with time lines to process the

grievances in a timely manner. The procedures must be made known to patients." S.C. Code § 44-22-220(B). The DMH's website includes a bullet list of patient rights while the patient is in a

DMH hospital or other in-patient facility. See Patients' Rights and Responsibilities while in a DMH Hospital, https://scdmh.net/patients families/patient-advocacv-2/3794-2/ (last visited June

24, 2020). The listed rights specifically include the right "to a safe and humane environment."

Id.

The website further states that if a patient feels their rights are being violated, complaints

may be registered with the Patient Advocacy Program. This program appears to be designed to

1 It is this Office's understanding that the Commission has not promulgated regulations addressing the hiring or removal of officers and employees. See S.C. Code Ann. Regs. Ch. 87.

The Honorable Micajah P. Caskey, IV
Page 3

June 25, 2020

comply with S.C. Code § 44-22-220.

Therefore, one avenue for reporting staff mistreatment of

patients is to register a complaint through the Patient Advocacy program. The DMH may have established procedures specifically designed for officers and employees to report incidents of patient mistreatment.

Questions regarding internal reporting procedures can likely be answered

by the DMH's human resources personnel.

Conclusion

As is discussed more fully above, it is this Office's opinion the South Carolina Mental Health Commission (the "Commission"), the State Director of Mental Health (the "Director"), and hospital directors are involved in personnel decisions regarding the hiring and removal of

State Department of Mental Health ("DMH") officers and employees.

Personnel decisions

concerning employees within a DMH facility are initially considered by a hospital director, where applicable.

The hospital director's personnel decisions are subject to the Director's

approval which, in turn, are ultimately subject to the Commission's approval. See S.C. Code §§ 44-9-40, -60.

Further, the Commission is authorized to hear and investigate complaints about

patient care. See S.C. Code § 44-9-100 ("The commission may: ... (3) investigate complaints made by a patient or by a person on behalf of a patient.").

Moreover, the DMH was statutorily

required to "develop a system for documenting and addressing grievances concerning patient rights." S.C. Code § 44-22-220(A). Registering a complaint through the Patient Advocacy program is one avenue for reporting staff mistreatment of patients. Questions regarding internal reporting procedures can likely be answered by the DMH's human resources personnel.

Sincerely,

Matthew Houck
Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General