North Carolina § 122C-263 - Duties of law enforcement officer; first examination.

§ 122C-263. Duties of law enforcement officer; first examination.

Without unnecessary delay after assuming custody, the law enforcement officer or the individual designated or required to provide transportation pursuant to G.S. 122C-251(g) shall take the respondent to a facility or other location identified by the LME/MCO in the community crisis services plan adopted pursuant to G.S. 122C-202.2 that has an available commitment examiner and is capable of performing a first examination in conjunction with a health screening at the same location, unless circumstances indicate the respondent appears to be suffering a medical emergency in which case the law enforcement officer will seek immediate medical assistance for the respondent. If a commitment examiner is not available, whether on-site, on-call, or via telehealth, at any facility or location, or if a plan has not been adopted, the person designated to provide transportation shall take the respondent to an alternative non-hospital provider or facility-based crisis center for a first examination in conjunction with a health screening at the same location. If no non-hospital provider or facility-based crisis center for a first examination in conjunction with a health screening at the same location for health screening and first examination exists, the person designated to provide transportation shall take the respondent to a private hospital or clinic, a general hospital, an acute care hospital, or a State facility for individuals with mental illnesses. If a commitment examiner is not immediately available, the respondent may be temporarily detained in an area facility, if one is available; if an area facility is not available, the respondent may be detained under appropriate supervision in the respondent's home, in a private hospital or a clinic, in a general hospital, or in a State facility for individuals with mental illnesses, but not in a jail or other penal facility. For the purposes of this section, "non-hospital provider" means an outpatient provider that provides either behavioral health or medical services. A facility or other location to which a respondent is transported under subsection (a) of this section shall provide a health screening of the respondent. The health screening shall be conducted by a commitment examiner or other individual who is determined by the area facility, contracted facility, or other location to be qualified to perform the health screening. The Department will work with commitment examiner professionals to develop a screening tool for this purpose. The respondent may either be in the physical face-to-face presence of the person conducting the screen or may be examined utilizing telehealth equipment and procedures. Documentation of the health screening required under this subsection that is completed prior to transporting the patient to any general hospital, acute care hospital, or designated facility shall accompany the patient or otherwise be made available at the time of transportation to the receiving facility. The examination set forth in subsection (a) of this section is not required under any of the following circumstances: The affiant who obtained the custody order is a commitment examiner who recommends inpatient commitment. The custody order states that the respondent was charged with a violent crime, including a crime involving assault with a deadly weapon, and the respondent was found incapable of proceeding. Repealed by Session Laws 1987, c. 596, s. 3. The commitment examiner described in subsection (a) of this section shall examine the respondent as soon as possible, and in any event within 24 hours after the respondent is presented for examination. When the examination set forth in subsection (a) of this section is performed by a commitment examiner, the respondent may either be in the physical face-to-face presence of the commitment examiner or may be examined utilizing telehealth equipment and procedures. A commitment examiner who examines a respondent by means of telehealth must be satisfied to a reasonable medical certainty that the determinations made in accordance with subsection (d) of this section would not be different if the examination had been done in the physical presence of the commitment examiner. A commitment examiner who is not so satisfied must note that the examination was not satisfactorily accomplished, and the respondent must be taken for a face-to-face examination in the physical presence of a person authorized to perform examinations under this section. As used in this section, "telehealth" means the use of two-way, real-time interactive audio and video where the respondent and commitment examiner can hear and see each other. A recipient is referred by one provider to receive the services of another provider via telehealth. Current and previous mental illness and intellectual disability including, if available, previous treatment history. Dangerousness to self, as defined in G.S. 122C-3(11)a. or others, as defined in G.S. 122C-3(11)b. Ability to survive safely without inpatient commitment, including the availability of supervision from family, friends, or others. Capacity to make an informed decision concerning treatment. After the conclusion of the examination the commitment examiner shall make the following determinations: If the commitment examiner finds all of the following, the commitment examiner shall so show on the examination report and shall recommend outpatient commitment: The respondent has a mental illness. The respondent is capable of surviving safely in the community with available supervision from family, friends, or others. Based on the respondent's psychiatric history, the respondent is in need of treatment in order to prevent further disability or deterioration that would predictably result in dangerousness as defined by G.S. 122C-3(11). The respondent's current mental status or the nature of the respondent's illness limits or negates the respondent's ability to make an informed decision to seek voluntarily or comply with recommended treatment. If the commitment examiner finds that the respondent has a mental illness and is dangerous to self, as defined in G.S. 122C-3(11)a., or others, as defined in G.S. 122C-3(11)b., the commitment examiner shall recommend inpatient commitment, and shall so show on the examination report. If, in addition to mental illness and dangerousness, the commitment examiner also finds that the respondent is known or reasonably believed to have an intellectual disability, this finding shall be shown on the report. Upon notification, the law enforcement officer or other designated person shall take the respondent to a 24-hour facility described in G.S. 122C-252 pending a district court hearing. To the extent feasible, in providing the transportation of the respondent, the law enforcement officer shall act within six hours of notification. The other designated person shall take the respondent to a 24-hour facility described in G.S. 122C-252 pending a district court hearing within six hours of notification. If there is no area 24-hour facility and if the respondent is indigent and unable to pay for care at a private 24-hour facility, the law enforcement officer or other designated person shall take the respondent to a State facility for individuals with mental illnesses designated by the Commission in accordance with G.S. 143B-147(a)(1)a. for custody, observation, and treatment and immediately notify the clerk of superior court of this action. 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 at the site of the first examination. Upon the commitment examiner's determination that a 24-hour facility is available and medically appropriate, the law enforcement officer or other designated person shall transport the respondent after receiving a request for transportation by the facility of the commitment examiner. To the extent feasible, in providing the transportation of the respondent, the law enforcement officer shall act within six hours of notification. The other designated person shall transport the respondent without unnecessary delay and within six hours after receiving a request for transportation by the facility of the commitment examiner. At any time during the respondent's temporary detention under appropriate supervision, if a commitment examiner determines that the respondent is no longer in need of inpatient commitment, the proceedings shall be terminated and the respondent transported and released in accordance with subdivision (3) of this subsection. However, if the commitment examiner determines that the respondent meets the criteria for outpatient commitment, as defined in subdivision (1) of this subsection, the commitment examiner may recommend outpatient commitment, and the respondent shall be transported and released in accordance with subdivision (1) of this subsection. Any decision to terminate the proceedings or to recommend outpatient commitment after an initial recommendation of inpatient commitment shall be documented and reported to the clerk of superior court in accordance with subsection (e) of this section. If the respondent is temporarily detained and a 24-hour facility is not available or medically appropriate seven days after the issuance of the custody order, a commitment examiner shall report this fact to the clerk of superior court and the proceedings shall be terminated. Termination of proceedings pursuant to this subdivision shall not prohibit or prevent the initiation of new involuntary commitment proceedings when appropriate. A commitment examiner may initiate a new involuntary commitment proceeding prior to the expiration of this seven-day period, as long as the respondent continues to meet applicable criteria. Affidavits filed in support of proceedings terminated pursuant to this subdivision shall not be submitted in support of any subsequent petitions for involuntary commitment. If the affiant initiating new commitment proceedings is a commitment examiner, the affiant shall conduct a new examination and shall not rely upon examinations conducted as part of proceedings terminated pursuant to this subdivision. 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. If the commitment examiner finds that neither condition described in subdivisions (1) or (2) of this subsection exists, the proceedings shall be terminated. The person designated in the order to provide transportation shall return the respondent to the respondent's regular residence or, with the respondent's consent, to the home of a consenting individual located in the originating county and the respondent shall be released from custody. The findings of the commitment examiner and the facts on which they are based shall be in writing in all cases. The commitment examiner shall send a copy of the findings to the clerk of superior court by the most reliable and expeditious means. If it cannot be reasonably anticipated that the clerk will receive the copy within 48 hours of the time that it was signed, the physician or eligible psychologist shall also communicate his findings to the clerk by telephone. When outpatient commitment is recommended, the commitment examiner, if different from the proposed outpatient treatment physician or center, 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 is being recommended for outpatient commitment. The commitment examiner shall give the respondent a written notice listing the name, address, and telephone number of the proposed outpatient treatment physician or center. The commitment examiner, at the completion of the examination, shall provide the respondent with specific information regarding the next steps that will occur. In any of these cases, the law enforcement officer or person designated under G.S. 122C-251(g) shall take the respondent directly to a 24-hour facility described in G.S. 122C-252 . The examination shall include an assessment of at least all of the following with respect to the respondent: In addition, the commitment examiner shall show the name, address, and telephone number of the proposed outpatient treatment physician or center in accordance with subsection (f) of this section. The person designated in the order to provide transportation shall return the respondent to the respondent's regular residence or, with the respondent's consent, to the home of a consenting individual located in the originating county, and the respondent shall be released from custody. In the event an individual known or reasonably believed to have an intellectual disability is transported to a State facility for individuals with mental illnesses, in no event shall that individual be admitted to that facility unless the individual is in one or more of the following categories: Individuals transported to a State facility for individuals with mental illnesses who are not admitted by the facility may be transported by 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. 4; c. 679, s. 8; c. 739, s. 1; 1979, c. 358, s. 27; c. 915, s. 4; 1983, c. 380, ss. 4, 10; c. 638, ss. 6, 7, 25.1; c. 864, s. 4; 1985, c. 589, s. 2; c. 695, ss. 2, 5, 6; 1985 (Reg. Sess., 1986), c. 863, s. 18; 1987, c. 596, s. 3; 1989, c. 225, s. 2; c. 770, s. 74; 1989 (Reg. Sess., 1990), c. 823, ss. 3, 4; 1991, c. 37, s. 8; c. 636, s. 2(1); c. 761, s. 49; 1995 (Reg. Sess., 1996), c. 739, s. 8(a)-(d); 2009-315, s. 2; 2009-340, s. 2; 2018-33, s. 24; 2018-76, s. 3.2(a); 2019-76, s. 9; 2019-177, s. 7(a); 2021-77, s. 6(a).) 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." A period was deleted at the end of the second paragraph of subsection (c) at the direction of the Reviser of Statutes. This section was amended by Session Laws 2018-33, s. 24 and 2018-76, s. 3.2(a), effective October 1, 2019, in the coded bill drafting format provided by G.S. 120-20.1 . However, in subsection (a), amendments in each of the acts did not account for the changes made by the other. The first two sentences in subsection (a) have been set out in the form above at the direction of the Revisor of Statutes. Session Laws 2018-33, s. 46, made the amendment of this section by Session Laws 2018-33, s. 24, effective October 1, 2019, and applicable to proceedings initiated on or after that date. Session Laws 2018-76, s. 3.2(c), made the rewriting of subsection (a) of this section by Session Laws 2018-76, s. 3.2(a), effective October 1, 2019, and applicable to proceedings initiated on or after that date. Session Laws 2019-177, s. 7(c), made the amendment of subsection (a) of this section by Session Laws 2019-177, s. 7(a), 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. 9 effective October 1, 2019, and applicable to proceedings commenced or services rendered on or after that date. Effect of Amendments. - Session Laws 2009-315, s. 2, effective July 17, 2009, added the second through last sentences of subsection (c). Session Laws 2009-340, s. 2, effective October 1, 2009, added the last seven sentences in the first paragraph of subdivision (d)(2). Session Laws 2018-33, s. 24, rewrote the section. For effective date and applicability, see editor's note. Session Laws 2018-76, s. 3.2(a), rewrote subsection (a). For effective date and applicability, see editor's note. Session Laws 2019-76, s. 9, rewrote the section. For effective date and applicability, see editor's note. Session Laws 2019-177, s. 7(a), rewrote subsection (a). For effective date and applicability, see editor's note. Session Laws 2021-77, s. 6(a), effective July 2, 2021, substituted "telehealth” for "telemedicine” throughout subsections (a), (a1) and (c); and substituted "‘telehealth' means the use of two way, real time interactive audio and video where the respondent and commitment examiner can hear and see each other” for "‘telemedicine' is the use of two way real time interactive audio and video between places of lesser and greater medical capability or expertise to provide and support health care when distance separates participants who are in different geographical locations” in subsection (c). Legal Periodicals. - For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980). For comment, "Criminal Defendants Deemed Incapable to Proceed to Trial: An Evaluation of North Carolina's Statutory Scheme," see 26 Campbell L. Rev. 41 (2004).