North Carolina § 122C-261 - Affidavit and petition before clerk or magistrate when immediate hospitalization is not necessary; custody order.

§ 122C-261. Affidavit and petition before clerk or magistrate when immediate hospitalization is not necessary; custody order.

Anyone who has knowledge of an individual who has a mental illness and is either (i) dangerous to self, as defined in G.S. 122C-3(11)a., or dangerous to others, as defined in G.S. 122C-3(11)b., or (ii) in need of treatment in order to prevent further disability or deterioration that would predictably result in dangerousness, may appear before a clerk or assistant or deputy clerk of superior court or a magistrate and execute an affidavit to this effect, and petition the clerk or magistrate for issuance of an order to take the respondent into custody for examination by a commitment examiner. The affidavit shall include the facts on which the affiant's opinion is based. If the affiant has knowledge or reasonably believes that the respondent, in addition to having a mental illness, also has an intellectual disability, this fact shall be stated in the affidavit. Jurisdiction under this subsection is in the clerk or magistrate in the county where the respondent resides or is found. If the clerk or magistrate finds reasonable grounds to believe that the facts alleged in the affidavit are true and that the respondent probably has a mental illness and is either (i) dangerous to self, as defined in G.S. 122C-3(11)a., or dangerous to others, as defined in G.S. 122C-3(11)b., or (ii) in need of treatment in order to prevent further disability or deterioration that would predictably result in dangerousness, the clerk or magistrate shall issue an order to a law enforcement officer or any other designated person under G.S. 122C-251(g) to take the respondent into custody for examination by a commitment examiner. If the clerk or magistrate finds that, in addition to probably having a mental illness, the respondent also probably has an intellectual disability, the clerk or magistrate shall contact the area authority before issuing a custody order and the area authority shall designate the facility to which the respondent is to be taken for examination by a commitment examiner. The clerk or magistrate shall provide the petitioner and the respondent, if present, with specific information regarding the next steps that will occur for the respondent. If the clerk or magistrate issues a custody order, the clerk or magistrate shall also make inquiry in any reliable way as to whether the respondent is indigent within the meaning of G.S. 7A-450. A magistrate shall report the result of this inquiry to the clerk. If the affiant is a commitment examiner, all of the following apply: If the affiant has examined the respondent, the affiant may execute the affidavit before any official authorized to administer oaths. This affiant is not required to appear before the clerk or magistrate for this purpose. This affiant shall file the affidavit with the clerk or magistrate by delivering to the clerk or magistrate the original affidavit, by transmitting a copy in paper form that is printed through the facsimile transmission of the affidavit, or by delivering the affidavit through electronic transmission. If the affidavit is filed through electronic or facsimile transmission, the affiant shall mail the original affidavit no later than five days after the facsimile transmission of the affidavit to the clerk or magistrate to be filed by the clerk or magistrate with the facsimile copy of the affidavit. This affiant's examination shall comply with the requirements of the initial examination as provided in G.S. 122C-263(c). The affiant shall document in writing and file the examination findings with the affidavit delivered to the clerk or magistrate in accordance with subdivision (1) of subsection (d) of this section. If the commitment examiner recommends outpatient commitment according to the criteria for outpatient commitment set forth in G.S. 122C-263(d)(1) and the clerk or magistrate finds probable cause to believe that the respondent meets the criteria for outpatient commitment, the clerk or magistrate shall issue an order that a hearing before a district court judge be held to determine whether the respondent will be involuntarily committed. The commitment examiner shall contact the LME/MCO that serves the county where the respondent resides or the LME/MCO that coordinated services for the respondent to inform the LME/MCO that the respondent has been scheduled for an appointment with an outpatient treatment physician or center. The commitment examiner shall provide the respondent with written notice of any scheduled appointment and the name, address, and telephone number of the proposed outpatient treatment physician or center. If the commitment examiner recommends inpatient commitment based on the criteria for inpatient commitment set forth in G.S. 122C-263(d)(2) and the clerk or magistrate finds probable cause to believe that the respondent meets the criteria for inpatient commitment, the clerk or magistrate shall issue an order to a law enforcement officer to take the respondent into custody for transportation to a 24-hour facility described in G.S. 122C-252, provided that if a 24-hour facility is not immediately available or appropriate to the respondent's medical condition, the respondent may be temporarily detained under appropriate supervision and, upon further examination, released in accordance with G.S. 122C-263(d)(2). If the affiant is a physician or eligible psychologist at a 24-hour facility described in G.S. 122C-252 who recommends inpatient commitment; the respondent is physically present on the premises of the same 24-hour facility; and the clerk or magistrate finds probable cause to believe that the respondent meets the criteria for inpatient commitment, then the clerk or magistrate may issue an order by facsimile transmission or may issue an electronically scanned order by electronic transmission to the physician or eligible psychologist at the 24-hour facility, or a designee, to take the respondent into custody at the 24-hour facility and proceed according to G.S. 122C-266. Upon receipt of the custody order, the physician or eligible psychologist at the 24-hour facility, or a designee, shall immediately (i) notify the respondent that the respondent is not under arrest and has not committed a crime but is being taken into custody to receive treatment and for the respondent's own safety and the safety of others, (ii) take the respondent into custody, and (iii) complete and sign the appropriate portion of the custody order and return the order to the clerk or magistrate either by facsimile transmission or by scanning it and sending it by electronic transmission. The physician or eligible psychologist, or a designee, shall mail the original custody order no later than five days after returning it by means of facsimile or electronic transmission to the clerk or magistrate. The clerk or magistrate shall file the original custody order with the copy of the custody order that was electronically returned. If the clerk or magistrate finds probable cause to believe that the respondent, in addition to having a mental illness, also has an intellectual disability, the clerk or magistrate shall contact the area authority before issuing the order and the area authority shall designate the facility to which the respondent is to be transported. If a commitment examiner executes an affidavit for inpatient commitment of a respondent, a physician who is not the commitment examiner who performed the examination under this section shall be required to perform the examination required by G.S. 122C-266. No commitment examiner, area facility, acute care hospital, general hospital, or other site of first examination, or its officials, staff, employees, or other individuals responsible for the custody, examination, detention, management, supervision, treatment, or release of an individual examined for commitment, who is not grossly negligent, shall be held liable in any civil or criminal action for taking measures to temporarily detain an individual for the period of time necessary to complete a commitment examination, submit an affidavit to the magistrate or clerk of court, and await the issuance of a custody order as authorized by this section. Except as provided in subdivision (5) of subsection (d) of this section, upon receipt of the custody order of the clerk or magistrate or a custody order issued by the court pursuant to G.S. 15A-1003, a law enforcement officer, person designated under G.S. 122C-251(g), or other person identified in the order shall take the respondent into custody within 24 hours after the order is signed, and proceed according to G.S. 122C-263. The custody order is valid throughout the State. Persons described in G.S. 122C-266(b). Persons admitted pursuant to G.S. 15A-1321. Respondents who are so extremely dangerous as to pose a serious threat to the community and to other patients committed to non-State hospital psychiatric inpatient units, as determined by the Director of the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services or the Director's designee. Respondents who are so gravely disabled by both multiple disorders and medical fragility or multiple disorders and deafness that alternative care is inappropriate, as determined by the Director of the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services or the Director's designee. Repealed by Session Laws 2018-33, s. 46, effective October 1, 2019. Notwithstanding the provisions of this subdivision, a clerk or magistrate shall not issue a custody order to a physician or eligible psychologist at a 24-hour facility, or a designee, if the physician or eligible psychologist, or a designee, has not completed training in proper service and return of service. As used in this subdivision, the term "designee" includes the 24-hour facility's on-site police security personnel. The Department of Health and Human Services shall cooperate and collaborate with the Administrative Office of the Courts and the UNC School of Government to develop protocols to implement this section, including a procedure for notifying clerks and magistrates of the names of the physicians, psychologists, and designees who have completed the training. The Secretary of the Department shall oversee implementation of these protocols. Notwithstanding the provisions of this section, in no event shall an individual known or reasonably believed to have an intellectual disability be admitted to a State psychiatric hospital, except the following: Individuals transported to a State facility for individuals with mental illnesses who are not admitted by the facility may be transported by appropriate law enforcement officers or designated staff of the State facility in State-owned vehicles to an appropriate 24-hour facility that provides psychiatric inpatient care. No later than 24 hours after the transfer, the responsible professional at the original facility shall notify the petitioner, the clerk of court, and, if consent is granted by the respondent, the next of kin, that the transfer has been completed. History (1973, c. 726, s. 1; c. 1408, s. 1; 1977, c. 400, s. 3; 1979, c. 164, s. 2; c. 915, ss. 3, 18; 1983, c. 383, s. 5; c. 638, ss. 3-5; c. 864, s. 4; 1985, c. 589, s. 2; c. 695, ss. 2, 4; 1985 (Reg. Sess., 1986), c. 863, s. 17; 1989 (Reg. Sess., 1990), c. 823, ss. 1, 2; c. 1024, s. 27.1; 1991, c. 37, s. 7; 1995 (Reg. Sess., 1996), c. 739, s. 6; 1997-456, s. 47; 2004-23, s. 1(a); 2005-135, s. 1; 2009-315, s. 1; 2009-340, s. 1; 2013-308, ss. 1, 2; 2018-33, s. 22; 2019-76, s. 7; 2019-240, s. 26(g).) Cross References. - As to establishment of guidelines for treatment of individuals involuntarily committed following a determination of incapacity to proceed, see G.S. 143B-147(e) . Temporary Waiver of Certain Mental Health Commitment Requirements. - Session Laws 2003-178, s. 1, as amended by Session Laws 2006-66, s. 10.27, Session Laws 2007-504, s. 1.1(a), Session Laws 2009-340, s. 3, Session Laws 2010-119, s. 1, and Session Laws 2010-123, s. 4.8, effective July 1, 2003, and expiring October 1, 2012, provides: "The Secretary of Health and Human Services may, upon request of an LME, waive temporarily the requirements of G.S. 122C-261 through G.S. 122C-263 and G.S. 122C-281 through G.S. 122C-283 pertaining to initial (first-level) examinations by a physician or eligible psychologist of individuals meeting the criteria of G.S. 122C-261(a) or G.S. 122C-281(a) , as applicable, as follows: "(1) The Secretary has received a request from an LME to substitute for a physician or eligible psychologist, a licensed clinical social worker, a masters level psychiatric nurse, or a masters level licensed clinical addictions specialist to conduct the initial (first-level) examinations of individuals meeting the criteria of G.S. 122C-261(a) or G.S. 122C-281(a) . The waiver shall be implemented on a pilot-program basis. The request from the LME shall specifically describe: "a. How the purpose of the statutory requirement would be better served by waiving the requirement and substituting the proposed change under the waiver. "b. How the waiver will enable the LME to improve the delivery or management of mental health, developmental disabilities, and substance abuse services. "c. How the services to be provided by the licensed clinical social worker, the masters level psychiatric nurse, or the masters level licensed clinical addictions specialist under the waiver are within each of these professional's scope of practice. "d. How the health, safety, and welfare of individuals will continue to be at least as well protected under the waiver as under the statutory requirement. "(2) The Secretary shall review the request and may approve it upon finding that: "a. The request meets the requirements of this section. "b. The request furthers the purposes of State policy under G.S. 122C-2 and mental health, developmental disabilities, and substance abuse services reform. "c. The request improves the delivery of mental health, developmental disabilities, and substance abuse services in the counties affected by the waiver and also protects the health, safety, and welfare of individuals receiving these services. "d. The duties and responsibilities performed by the licensed clinical social worker, the masters level psychiatric nurse, or the masters level licensed clinical addictions specialist are within the individual's scope of practice. "(3) The Secretary shall evaluate the effectiveness, quality, and efficiency of mental health, developmental disabilities, and substance abuse services and protection of health, safety, and welfare under the waiver. The Secretary shall send a report on the evaluation to the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substances Abuse Services by October 1, 2009. The report shall include data gathered from all participating LMEs since the beginning of the pilot. "(4) The waiver granted by the Secretary under this section shall be in effect until October 1, 2012. "(5) The Secretary may grant a waiver under this section to up to 20 LMEs. "(6) In no event shall the substitution of a licensed clinical social worker, masters level psychiatric nurse, or masters level licensed clinical addictions specialist under a waiver granted under this section be construed as authorization to expand the scope of practice of the licensed clinical social worker, the masters level psychiatric nurse, or the masters level licensed clinical addictions specialist. "(7) The Department shall assure that staff performing the duties are trained and privileged to perform the functions identified in the waiver. The Department shall involve stakeholders including, but not limited to, the North Carolina Psychiatric Association, The North Carolina Nurses Association, National Association of Social Workers, The North Carolina Substance Abuse Professional Practice Board, North Carolina Psychological Association, The North Carolina Society for Clinical Social Work, and the North Carolina Medical Society in developing required staff competencies. "(8) The LME shall assure that a physician is available at all times to provide backup support to include telephone consultation and face-to-face evaluation, if necessary." Session Laws 2006-66, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2006'." Session Laws 2006-66, s. 28.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2006-2007 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2006-2007 fiscal year." Session Laws 2006-66, s. 28.6, is a severability clause. Session Laws 2007-504, s. 1.1(b), provides: "The Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services (LOC) shall review the report submitted by the Secretary under Section 1.1.(a) of this act. The LOC shall make recommendations to the 2010 Regular Session of the 2009 General Assembly regarding whether to extend the pilot, discontinue the pilot, or make the provisions of the pilot permanent and statewide." Editor's note. - Session Laws 1995 (Reg. Sess., 1996), c. 739, s. 15, effective January 1, 1997, and applicable to commitments on or after that date, provides: "Nothing in this act shall require hospitals licensed under G.S. 131E or G.S. 122C to contract with area mental health, developmental disabilities, and substance abuse authorities to provide inpatient or outpatient treatment for persons who are mentally retarded with mental illness." Session Laws 2010-119, s. 2, provides: "The Division of Mental Health, Developmental Disabilities, and Substance Abuse Services shall expand its standardized certification training program to include refresher training for all certified providers and shall report to the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services on the participation rate of licensed clinical social worker, the master's level psychiatric nurse, or the master's level certified clinical addictions specialist in the pilot program and whether the program should include other licensed or certified health care professionals." Session Laws 2013-308, s. 3, provides: "The Secretary of the Department of Health and Human Services shall review and update its list of facilities designated under G.S. 122C-252 as facilities for the custody and treatment of involuntary clients. The Secretary shall ensure that each designation identifies the specific units or areas of the 24-hour facility to which the designation applies and includes all units or areas necessary to facilitate the orderly and safe movement of a respondent from one unit or area to another." Session Laws 2018-33, s. 46, made the amendment of this section by Session Laws 2018-33, s. 22, effective October 1, 2019, and applicable to proceedings initiated on or after that date. Session Laws 2019-76, s. 33, provides: "Parts I and II of this act do not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability." Session Laws 2019-76, s. 34, made the amendments by Session Laws 2019-76, s. 7 effective October 1, 2019, and applicable to proceedings commenced or services rendered on or after that date. Effect of Amendments. - Session Laws 2004-23, s. 1(a), effective June, 25, 2004, added the last sentence in subsection (e). Session Laws 2005-135, s. 1, effective June 29, 2005, added the present third and fourth sentences of subsection (d). Session Laws 2009-315, s. 1, effective July 17, 2009, added the eighth sentence of subsection (d). Session Laws 2009-340, s. 1, effective October 1, 2009, in subsection (d), added the proviso at the end of the ninth sentence, and deleted "However" from the beginning of the next-to-last sentence. Session Laws 2018-33, s. 22, substituted "commitment examiner" for "physician or eligible psychologist" throughout the section; in subsection (b), in the first sentence, substituted "designated person under G.S. 122C-251 (g)" for "person authorized under G.S. 122C-251 "; in subdivision (d)(1), in the first sentence, substituted "If the affiant has examined the respondent, the affiant" for "The affiant," in the second sentence, substituted "affidavit, by transmitting" for "affidavit or" near the middle, and substituted "affidavit, or by delivering the affidavit through electronic transmission" for "affidavit" at the end; and in the third sentence, inserted "electronic or"; in subdivision (d)(2), added the last sentence; in subdivision (d)(3), in the first sentence, added "according to the criteria for outpatient commitment set forth in G.S. 122C-263(d)(1) ," deleted the former second sentence, which read: "The physician or eligible psychologist shall provide the respondent with written notice of any scheduled appointment and the name, address, and telephone number of the proposed outpatient treatment physician or center."; in the present second sentence, substituted "LME/MCO" for "local management entity" three times, and added the last sentence; in subdivision (d)(4), inserted "based on the criteria for inpatient commitment set forth in G.S. 122C-263(d)(2) ," and substituted "to a law enforcement officer to take the respondent into custody for transportation to a 24-hour facility" for "for transportation to or custody at a 24-hour facility"; in subdivision (d)(7), substituted "a physician who is not the commitment examiner who performed the examination under this section" for "a second physician"; added subdivision (d)(8); in subsection (e), substituted "law enforcement officer, person designated under G.S. 122C-251(g) , or other person identified" for "law enforcement officer or other person designated"; deleted the former first paragraph of subsection (f) and redesignated the former second through fourth paragraphs of subsection (f) as the second through fourth paragraphs of subsection (e); and, in the next to last paragraph of subsection (e), added "appropriate." For effective date and applicability, see editor's note. Session Laws 2019-76, s. 7, rewrote the section. For effective date and applicability, see editor's note. Session Laws 2019-240, s. 26(g), effective November 6, 2019, substituted "to temporarily detain an individual for the period of time necessary to complete a commitment examination, submit an affidavit to the magistrate or clerk of court, and await the issuance of a custody order as authorized by this section" for "prior to the inpatient admission of the individual to a 24-hour facility" at the end of subdivision (d)(8). Legal Periodicals. - For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980). For survey of 1980 constitutional law, see 59 N.C.L. Rev. 1097 (1981). For comment, "Senate Bill 43: A Refinement of North Carolina's Involuntary Civil Commitment Procedures," see 14 Campbell L. Rev. 105 (1992). For note, "Helplessly Imprisoned: State v. Hammonds Holds Involuntarily Committed Patients to the Same Constitutional Restraints as Prisoners," see 38 N.C. Cent. L. Rev. 173 (2016). For article, "One Size Only Fits Some: Presuming Custody for the Involuntarily Committed," see 97 N.C.L. Rev. 1014 (2019).