2017 South Carolina Code of Laws
Title 44 - Health
CHAPTER 22 - RIGHTS OF MENTAL HEALTH PATIENTS
Section 44-22-40. Consent to electro-convulsive therapy or major medical treatment; determination of ability to give consent; who may give consent.

(A) A patient in need of electro-convulsive therapy or major medical treatment must be examined by a qualified physician to determine if the patient is able to consent to electro-convulsive therapy or major medical treatment. Where a patient is determined unable to consent to surgery or electro-convulsive therapy or major medical therapy or treatment, decisions concerning the need for treatment may be made by the following persons in the following order of priority:

(1) a guardian appointed by the court pursuant to Article 5, Part 3 of the South Carolina Probate Code, if the decision is within the scope of the guardianship;

(2) an attorney-in-fact appointed by the patient in a durable power of attorney executed pursuant to Section 62-5-501, if the decision is within the scope of his authority;

(3) a person given priority to make health care decisions for the patient by another statutory provision;

(4) a spouse of the patient unless the spouse and the patient are separated pursuant to one of the following:

(a) entry of a pendente lite order in a divorce or separate maintenance action;

(b) formal signing of a written property or marital settlement agreement;

(c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;

(5) a parent of the patient or child eighteen years of age or older of the patient;

(6) a sibling or grandchild eighteen years of age or older of the patient or grandparent of the patient;

(7) other relative by blood or marriage who reasonably is believed by the health care professional to have a close personal relationship with the patient;

(8) a person given authority to make health care decisions for the patient by another statutory provision.

(B) If persons of equal priority disagree on whether certain health care should be provided to a patient who is unable to consent, an authorized person, a health care provider involved in the care of the patient, or another person interested in the welfare of the patient may petition the probate court for an order determining what care is to be provided or for appointment of a temporary or permanent guardian.

(C) Priority under this section must not be given to a person if a health care provider responsible for the care of a patient who is unable to consent determines that the person is not reasonably available, is not willing to make health care decisions for the patient, or is unable to consent as defined in Section 44-22-10(6).

(D) An attending physician or other health care professional responsible for the care of a patient who is unable to consent may not give priority or authority under subsection (A)(5) through (8) to a person if the attending physician or health care professional has actual knowledge that, before becoming unable to consent, the patient did not want that person involved in decisions concerning his care.

(E) This section does not authorize a person to make health care decisions on behalf of a patient who is unable to consent if, in the opinion of the certifying physicians, the patient's inability to consent is temporary, and the attending physician or other health care professional responsible for the care of the patient determines that the delay occasioned by postponing treatment until the patient regains the ability to consent will not result in significant detriment to the patient's health.

(F) This section does not affect the application of the Adult Health Care Consent Act, Sections 44-66-10 through 44-66-80, to a patient in need of health care.

HISTORY: 1991 Act No. 127, Section 1.