House Bill 243-Second Edition

GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2009

H 2

HOUSE BILL 243

Committee Substitute Favorable 5/11/09

Short Title: Mental Health/Law Enforcement Custody.		(Public)
Sponsors:
Referred to:

February 23, 2009

A BILL TO BE ENTITLED

AN ACT TO CLARIFY THE AUTHORITY OF NONLAW ENFORCEMENT PERSONNEL DESIGNATED BY A CITY OR COUNTY TO PROVIDE TRANSPORTATION OR CUSTODY UNDER INVOLUNTARY COMMITMENT PROCEEDINGS; TO AUTHORIZE THE FACILITY OF FIRST COMMITMENT EXAMINATION TO TERMINATE THE INPATIENT COMMITMENT PROCEEDINGS IN APPROPRIATE CIRCUMSTANCES WHEN A twenty‑four‑HOUR FACILITY IS NOT AVAILABLE.

The General Assembly of North Carolina enacts:

SECTION 1. G.S. 122C‑251 reads as rewritten:

"§ 122C‑251. ~~Transportation.~~Transportation and custody.

…

(e) In providing the transportation and custody required by this section, the law‑enforcement officer may use reasonable force to restrain the respondent if it appears necessary to protect himself, the respondent, or others. No law‑enforcement officer may be held criminally or civilly liable for assault, false imprisonment, or other torts or crimes on account of reasonable measures taken under the authority of this Article.

…

(g) The governing body of a city or county may adopt a plan for the transportation and custody of respondents in involuntary commitment proceedings in this Article. Law‑enforcement personnel, volunteers, or other public or private agency personnel may be designated to provide all or parts of the transportation and custody required by involuntary commitment proceedings. Persons so designated shall be trained and the plan shall assure adequate safety and protections for both the public and the respondent. Law enforcement, other affected agencies, and the area authority shall participate in the planning. If any person other than a law‑enforcement agency is designated by a city or county, the person so designated shall provide the transportation and custody and follow the procedures in this Article. References in this Article to a law‑enforcement officer apply to this person.

(h) The cost and expenses of transporting a respondent to or from a 24‑hour facility is the responsibility of the county of residence of the respondent. The State (when providing transportation under G.S. 122C‑408(b)), a city, or a county is entitled to recover the reasonable cost of transportation from the county of residence of the respondent. The county of residence of the respondent shall reimburse the State, another county, or a city the reasonable transportation costs incurred as authorized by this subsection. The county of residence of the respondent is entitled to recover the reasonable cost of transportation it has paid to the State, a city, or a county. Provided that the county of residence provides the respondent or other individual liable for the respondent's support a reasonable notice and opportunity to object to the reimbursement, the county of residence of the respondent may recover that cost from:

(1) The respondent, if the respondent is not indigent;

(2) Any person or entity that is legally liable for the resident's support and maintenance provided there is sufficient property to pay the cost;

(3) Any person or entity that is contractually responsible for the cost; or

(4) Any person or entity that otherwise is liable under federal, State, or local law for the cost.

(i) Responsibility for transportation and custody under this section shall not be construed to mean that law enforcement or other designated personnel providing all or parts of the transportation and custody under this section are responsible or liable for the cost of examination or treatment provided to a respondent. Nothing in this subsection shall be construed to change the existing liability for the cost of examination and treatment."

SECTION 2. G.S. 122C‑261(d) reads as rewritten:

"(d) If the affiant is a physician or eligible psychologist, 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 or a copy in paper form that is printed through the facsimile transmission of the affidavit. If the affidavit is filed through 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). If the physician or eligible psychologist recommends outpatient commitment 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 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. If the physician or eligible psychologist recommends inpatient commitment 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 for transportation to or custody at a 24‑hour facility described in G.S. ~~122C‑252.~~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). ~~However, if~~ If the clerk or magistrate finds probable cause to believe that the respondent, in addition to being mentally ill, is also mentally retarded, 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 physician or eligible psychologist executes an affidavit for inpatient commitment of a respondent, a second physician shall be required to perform the examination required by G.S. 122C‑266."

SECTION 3. G.S. 122C‑263(d) reads as rewritten:

"§ 122C‑263. Duties of law‑enforcement officer; first examination by physician or eligible psychologist.

…

(d) After the conclusion of the examination the physician or eligible psychologist shall make the following determinations:

(1) If the physician or eligible psychologist finds that:

a. The respondent is mentally ill;

b. The respondent is capable of surviving safely in the community with available supervision from family, friends, or others;

c. 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); and

d. 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.

The physician or eligible psychologist shall so show on the examination report and shall recommend outpatient commitment. In addition the examining physician or eligible psychologist shall show the name, address, and telephone number of the proposed outpatient treatment physician or center. 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.

(2) If the physician or eligible psychologist finds that the respondent is mentally ill 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 physician or eligible psychologist shall recommend inpatient commitment, and shall so show on the examination report. If, in addition to mental illness and dangerousness, the physician or eligible psychologist also finds that the respondent is known or reasonably believed to be mentally retarded, this finding shall be shown on the report. 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. 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 the mentally ill 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, and the custody order remains in effect, provided that at anytime that a physician or eligible psychologist 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 physician or eligible psychologist determines that the respondent meets the criteria for outpatient commitment, as defined in subdivision (1) of this subsection, the physician or eligible psychologist 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 continues to meet the criteria for inpatient commitment but a 24‑hour facility is not available or medically appropriate seven days after the issuance of the custody order, a physician or psychologist shall report this fact to the clerk of superior court, and the proceedings shall be terminated.

In the event an individual known or reasonably believed to be mentally retarded is transported to a State facility for the mentally ill, in no event shall that individual be admitted to that facility except as follows:

a. Persons described in G.S. 122C‑266(b);

b. Persons admitted pursuant to G.S. 15A‑1321;

c. 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 his designee; and

d. 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 his designee.

Individuals transported to a State facility for the mentally ill 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.

(3) If the physician or eligible psychologist 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."

SECTION 4. Section 1(5) of S.L. 2003‑178, as amended by Section 10.27 of S.L. 2006‑66, and as further amended by Section 1.1(a)(5) of S.L. 2007‑504, reads as rewritten:

"(5) The Secretary may grant a waiver under this section to up to 10 15 LMEs."

SECTION 5. Section 4 of this act becomes effective July 1, 2009. The remainder of this act becomes effective October 1, 2009.