Chapter 15A - Article 56

Subchapter X. General Trial Procedure.

Article 56.

Incapacity to Proceed.

§ 15A-1001. (Effective until December 1, 2026) No proceedings when defendant mentally incapacitated; exception.

(a) No person may be tried, convicted, sentenced, or punished for a crime when by reason of mental illness or defect he is unable to understand the nature and object of the proceedings against him, to comprehend his own situation in reference to the proceedings, or to assist in his defense in a rational or reasonable manner. This condition is hereinafter referred to as "incapacity to proceed."

(b) This section does not prevent the court from going forward with any motions which can be handled by counsel without the assistance of the defendant. (1973, c. 1286, s. 1.)

§ 15A-1001. (Effective December 1, 2026) No proceedings when defendant mentally incapacitated; exception; State policy; capacity restoration services; immunity from liability.

(a) No person may be tried, convicted, sentenced, or punished for a crime when by reason of mental illness or defect he or she is unable to understand the nature and object of the proceedings against him or her, to comprehend his or her own situation in reference to the proceedings, or to assist in his or her defense in a rational or reasonable manner. This condition is hereinafter referred to as "incapacity to proceed."

(b) This section does not prevent the court from going forward with any motions which can be handled by counsel without the assistance of the defendant.

(c) It is State policy that persons found incapable to proceed should be provided with capacity restoration services whenever feasible and appropriate and that such services should be carried out in as efficient and timely a manner as possible in order to meet the ends of justice for victims, for the public, and for those persons who stand accused of crimes.

(d) Unless otherwise specified in this Article, capacity restoration services are directed toward a defendant gaining capacity to stand trial and may include any or all of the following, as applicable and based upon available resources:

(1) Educational instruction regarding the criminal justice system, to include assisting the defendant in understanding his or her role in the proceedings.

(2) Psychoeducational instruction regarding the nature of a defendant's diagnosed condition and the resources and coping skills necessary to mitigate capacity deficits caused by the condition.

(3) Except as prohibited by G.S. 15A-1010, other mental health treatment or counseling which is medically reasonable and appropriate.

(e) No individual, facility, agency, or entity, or officials, staff, and employees of these individuals and entities, responsible for the custody, transportation, examination, admission, management, supervision, instruction, treatment, or release of a defendant under this Article and who is not grossly negligent, is civilly liable, personally or otherwise, for actions or omissions arising from these responsibilities or for the actions or omissions of a defendant. This immunity is in addition to any other legal immunity from liability to which these individuals, facilities, agencies, or entities may be entitled and applies to actions performed in connection with, or arising out of, the custody, transportation, examination, commitment, admission, management, supervision, instruction, treatment, or release of any defendant pursuant to or under the authority of this Article or otherwise. (1973, c. 1286, s. 1; 2026-38, s. 13(b).)

§ 15A-1002. (Effective until December 1, 2026) Determination of incapacity to proceed; evidence; temporary commitment; temporary orders.

(a) The question of the capacity of the defendant to proceed may be raised at any time on motion by the prosecutor, the defendant, the defense counsel, or the court. The motion shall detail the specific conduct that leads the moving party to question the defendant's capacity to proceed.

(b)(1) When the capacity of the defendant to proceed is questioned, the court shall hold a hearing to determine the defendant's capacity to proceed. If an examination is ordered pursuant to subdivision (1a) or (2) of this subsection, the hearing shall be held after the examination. Reasonable notice shall be given to the defendant and prosecutor, and the State and the defendant may introduce evidence.

(1a) In the case of a defendant charged with a misdemeanor or felony, the court may appoint one or more impartial medical experts, including forensic evaluators approved under rules of the Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services, to examine the defendant and return a written report describing the present state of the defendant's mental health. Reports so prepared are admissible at the hearing. The court may call any expert so appointed to testify at the hearing with or without the request of either party.

(2) At any time in the case of a defendant charged with a felony, the court may order the defendant to a State facility for the mentally ill for observation and treatment for the period, not to exceed 60 days, necessary to determine the defendant's capacity to proceed. If a defendant is ordered to a State facility without first having an examination pursuant to subsection (b)(1a) of this section, the judge shall make a finding that an examination pursuant to this subsection would be more appropriate to determine the defendant's capacity. The sheriff shall return the defendant to the county when notified that the evaluation has been completed. The director of the facility shall direct his report on defendant's condition to the defense attorney and to the clerk of superior court, who shall bring it to the attention of the court. The report is admissible at the hearing.

(3) Repealed by Session Laws 1989, c. 486, s. 1.

(4) A presiding district or superior court judge of this State who orders an examination pursuant to subdivision (1a) or (2) of this subsection shall order the release of relevant confidential information to the examiner, including, but not limited to, the warrant or indictment, arrest records, the law enforcement incident report, the defendant's criminal record, jail records, any prior medical and mental health records of the defendant, and any school records of the defendant after providing the defendant with reasonable notice and an opportunity to be heard and then determining that the information is relevant and necessary to the hearing of the matter before the court and unavailable from any other source. This subdivision shall not be construed to relieve any court of its duty to conduct hearings and make findings required under relevant federal law before ordering the release of any private medical or mental health information or records related to substance abuse or HIV status or treatment. The records may be surrendered to the court for in camera review if surrender is necessary to make the required determinations. The records shall be withheld from public inspection and, except as provided in this subdivision, may be examined only by order of the court.

(b1) The order of the court shall contain findings of fact to support its determination of the defendant's capacity to proceed. The parties may stipulate that the defendant is capable of proceeding but shall not be allowed to stipulate that the defendant lacks capacity to proceed. If the court concludes that the defendant lacks capacity to proceed, proceedings for involuntary civil commitment under Chapter 122C of the General Statutes may be instituted on the basis of the report in either the county where the criminal proceedings are pending or, if the defendant is hospitalized, in the county in which the defendant is hospitalized.

(b2) Reports made to the court pursuant to this section shall be completed and provided to the court as follows:

(1) The report in a case of a defendant charged with a misdemeanor shall be completed and provided to the court no later than 10 days following the completion of the examination for a defendant who was in custody at the time the examination order was entered and no later than 20 days following the completion of the examination for a defendant who was not in custody at the time the examination order was entered.

(2) The report in the case of a defendant charged with a felony shall be completed and provided to the court no later than 30 days following the completion of the examination.

(3) In cases where the defendant challenges the determination made by the court-ordered examiner or the State facility and the court orders an independent psychiatric examination, that examination and report to the court must be completed within 60 days of the entry of the order by the court.

The court may, for good cause shown, extend the time for the provision of the report to the court for up to 30 additional days. The court may renew an extension of time for an additional 30 days upon request of the State or the defendant prior to the expiration of the previous extension. In no case shall the court grant extensions totaling more than 120 days beyond the time periods otherwise provided in this subsection.

(c) The court may make appropriate temporary orders for the confinement or security of the defendant pending the hearing or ruling of the court on the question of the capacity of the defendant to proceed.

(d) Any report made to the court pursuant to this section shall be forwarded to the clerk of superior court in a sealed envelope addressed to the attention of a presiding judge, with a covering statement to the clerk of the fact of the examination of the defendant and any conclusion as to whether the defendant has or lacks capacity to proceed. If the defendant is being held in the custody of the sheriff, the clerk shall send a copy of the covering statement to the sheriff. The sheriff and any persons employed by the sheriff shall maintain the copy of the covering statement as a confidential record. A copy of the full report shall be forwarded to defense counsel or to the defendant if he is not represented by counsel. If the question of the defendant's capacity to proceed is raised at any time, a copy of the full report must be forwarded to the district attorney, as provided in G.S. 122C-54(b). Until such report becomes a public record, the full report to the court shall be kept under such conditions as are directed by the court, and its contents shall not be revealed except the report and the relevant confidential information previously ordered released under subdivision (b)(4) of this section shall be released as follows: (i) to clinicians at the program where the defendant is receiving capacity restoration; (ii) to clinicians designated by the Secretary of Health and Human Services, and (iii) as directed by the court. Any report made to the court pursuant to this section shall not be a public record unless introduced into evidence. (1973, c. 1286, s. 1; 1975, c. 166, ss. 20, 27; 1977, cc. 25, 860; 1979, 2nd Sess., c. 1313; 1985, c. 588; c. 589, s. 9; 1989, c. 486, s. 1; 1991, c. 636, s. 19(b); 1995, c. 299, s. 1; 1995 (Reg. Sess., 1996), c. 742, ss. 13, 14; 2013-18, s. 1; 2017-147, s. 1.)

§ 15A-1002. (Effective December 1, 2026) Determination of incapacity to proceed; evidence; temporary commitment; temporary orders.

(3) Repealed by Session Laws 1989, c. 486, s. 1.

(b1) The order of the court shall contain findings of fact to support its determination of the defendant's capacity to proceed. The parties may stipulate that the defendant is capable to proceed but shall not be allowed to stipulate that the defendant lacks capacity to proceed. If the court concludes that the defendant lacks capacity to proceed, the court shall ensure a record of the determination is transmitted to the National Instant Criminal Background Check System, pursuant to G.S. 14-409.43(a)(5), and further proceed pursuant to G.S. 15A-1003.

(b2) Reports made to the court pursuant to this section shall be completed and provided to the court as follows:

(2) The report in the case of a defendant charged with a felony shall be completed and provided to the court no later than 30 days following the completion of the examination.

(b3) Any report prepared pursuant to this Article shall include the examiner's opinion whether the defendant is capable or incapable to proceed, to include all relevant observations and findings. If the examiner believes the defendant is not capable to proceed, the report shall further include the following, along with supporting observations and findings:

(1) An opinion concerning the causes of the defendant's mental illness or defect.

(2) An opinion whether the defendant is able to gain capacity in the foreseeable future and whether capacity restoration services would likely aid in the defendant gaining capacity. Local evaluators may not make a recommendation of non-restorability.

(3) Any recommended treatment or education necessary for the defendant to gain capacity, and the availability of such services, if known.

(4) A recommendation of the appropriate clinical setting in which the capacity restoration services may be safely provided to the defendant and any specific treatment needs of the defendant or other factors supporting this recommendation.

(5) Any other opinions or recommendations specifically ordered by the court or which the examiner believes necessary for the court's consideration of the defendant's capacity or potential to gain capacity.

If the examiner is unable to provide any of the required opinions, recommendations, or findings, the reasons therefore shall be clearly stated in the report. The forensic evaluation may be conducted remotely using video-teleconference which permits two-way audio and video transmission between the defendant and the evaluator, unless the evaluator determines there is a clinical need for an in-person evaluation.

§ 15A-1003. (Effective until December 1, 2026) Referral of incapable defendant for civil commitment proceedings.

(a) When a defendant is found to be incapable of proceeding, the presiding judge, upon such additional hearing, if any, as he determines to be necessary, shall determine whether there are reasonable grounds to believe the defendant meets the criteria for involuntary commitment under Part 7 of Article 5 of Chapter 122C of the General Statutes. If the presiding judge finds reasonable grounds to believe that the defendant meets the criteria, he shall make findings of fact and issue a custody order in the same manner, upon the same grounds and with the same effect as an order issued by a clerk or magistrate pursuant to G.S. 122C-261. Proceedings thereafter are in accordance with Part 7 of Article 5 of Chapter 122C of the General Statutes. If the defendant was charged with a violent crime, including a crime involving assault with a deadly weapon, the judge's custody order shall require a law-enforcement officer to take the defendant directly to a 24-hour facility as described in G.S. 122C-252; and the order must indicate that the defendant was charged with a violent crime and that he was found incapable of proceeding.

(a1) Prior to the dismissal of any charges pursuant to G.S. 15A-1008, if the defendant is not subject to an involuntary commitment order issued pursuant to Part 7 of Article 5 of Chapter 122C of the General Statutes, the court shall make the determinations and findings required by subsection (a) of this section upon motion of the district attorney.

(b) The court may make appropriate orders for the temporary detention of the defendant pending that proceeding.

(c) Evidence used at the hearing with regard to capacity to proceed is admissible in the involuntary civil commitment proceedings. (1973, c. 1286, s. 1; 1975, c. 166, s. 20; 1983, c. 380, s. 1; 1985, c. 589, s. 10; 1987, c. 596, s. 5; 2025-93, s. 7(a).)

§ 15A-1003. (Effective December 1, 2026) Procedure upon finding a defendant incapable to proceed.

(a) When a defendant is found to be incapable of proceeding, the presiding judge, upon such additional hearing, if any, as he determines to be necessary, shall determine whether there are reasonable grounds to believe the defendant meets the criteria for involuntary commitment under Part 7 of Article 5 of Chapter 122C of the General Statutes. If the presiding judge finds reasonable grounds to believe that the defendant meets the criteria, he shall make findings of fact and issue a custody order in the same manner, upon the same grounds and with the same effect as an order issued by a clerk or magistrate pursuant to G.S. 122C-261. Proceedings thereafter are in accordance with Part 7 of Article 5 of Chapter 122C of the General Statutes. If the defendant was charged with a violent crime, including a crime involving assault with a deadly weapon, the judge's custody order shall require a law-enforcement officer to take the defendant directly to a 24-hour facility as described in G.S. 122C-252, as space is available; and the order must indicate that the defendant was charged with a violent crime and that he was found incapable of proceeding.

(a1) Repealed by Session Laws 2026-38, s. 13(d), effective December 1, 2026, and applicable to any initial or supplemental capacity hearing conducted on or after that date.

(b) Repealed by Session Laws 2026-38, s. 13(d), effective December 1, 2026, and applicable to any initial or supplemental capacity hearing conducted on or after that date.

(c) Repealed by Session Laws 2026-38, s. 13(d), effective December 1, 2026, and applicable to any initial or supplemental capacity hearing conducted on or after that date.

(d) When the court finds, pursuant to G.S. 15A-1002, that a defendant is incapable to proceed to trial and that the defendant is reasonably likely to gain capacity to proceed within the foreseeable future, the court shall order the defendant to enroll and participate in a capacity restoration program, as defined in G.S. 122C-256, subject to the following conditions:

(1) If the defendant is eligible for pretrial release, enrollment and participation in a community-based capacity restoration program shall be imposed as an additional condition of release, so long as such program is reasonably available based on geographic location, program capacity, and any other relevant factor. Additional conditions may be imposed in the court's discretion pursuant to Article 26 of this Chapter, specifically including the power to place the defendant in the custody of a designated person or organization agreeing to supervise the defendant.

(2) If the defendant is held in pretrial custody, the defendant shall be required to enroll and participate in a detention center capacity restoration program, as defined in G.S. 122C-256, if such program is reasonably available.

(3) If the court determines that the most clinically appropriate setting for a defendant to receive capacity restoration services is an inpatient setting other than through civil involuntary commitment, then the court may instead order the defendant to enroll in an inpatient-based capacity restoration program, if such program is reasonably available.

(4) The court shall specify in its order the duration of the defendant's enrollment, up to a maximum initial term of four months, taking into account the defendant's mental condition, the prognosis for the defendant's ability to gain capacity, the nature of the criminal charges, the nature of the capacity restoration program, and any other relevant factor. The term of a defendant's enrollment period does not include wait times for program entry. The initial term of four months may be extended per G.S. 15A-1007(e).

(5) The court shall issue any other orders deemed appropriate to safeguard the defendant and to protect the public, including orders to ensure and provide for the defendant's return for trial in the event the defendant subsequently gains capacity. The court may amend or supplement its orders from time to time as changed conditions require.

(e) If no capacity restoration program is reasonably available to the defendant, or if the court finds that the defendant is expected to gain capacity in the foreseeable future without the need for capacity restoration services, or for other good cause shown, the requirement for referral to such program may be waived, but the court shall issue any further orders as appropriate to safeguard the defendant and to protect the public, including orders to ensure and provide for the defendant's return for trial in the event the defendant subsequently gains capacity. The court may review and modify the defendant's conditions of release. The court may also determine when a supplemental hearing under G.S. 15A-1007 should be held.

(f) If the court finds that the defendant is not reasonably likely to gain capacity to proceed in the foreseeable future, the court shall not order the defendant to receive capacity restoration services but shall instead consider whether dismissal of the charges is required pursuant to G.S. 15A-1008. The court may further determine when a supplemental hearing under G.S. 15A-1007 should be held to review the defendant's condition. The court may review and modify the defendant's conditions of release as appropriate pending further determination pursuant to G.S. 15A-1008 or supplemental hearing.

(g) In addition to the requirement provided in subsection (b) of this section, the court at any time after the defendant is found incapable to proceed may determine whether there are reasonable grounds to believe the defendant probably has a mental illness and is either (i) dangerous to self or others as defined under G.S. 122C-3 or (ii) in need of treatment in order to prevent further disability or deterioration that would predictably result in dangerousness and therefore meets the criteria for involuntary civil commitment. Based upon such findings, the court may issue a custody order in the same manner and with the same effect as an order issued by a clerk or magistrate pursuant to G.S. 122C-261. Proceedings thereafter are in accordance with Part 7 of Article 5 of Chapter 122C of the General Statutes and subject to the following requirements:

(1) Proceedings for involuntary commitment may be initiated on the basis of the report in either the county where the criminal proceedings are pending or, if the defendant is hospitalized, in the county in which the defendant is hospitalized.

(2) If the defendant was charged with a violent crime, including a crime involving assault with a deadly weapon, the custody order shall require a law enforcement officer to take the defendant directly to a 24-hour facility as described in G.S. 122C-252 as soon as space is available, and the order must indicate that the defendant was charged with a violent crime and that he or she was found incapable to proceed.

(3) The court may make appropriate orders for the temporary detention of the defendant pending the commitment proceedings.

(4) The court may set or modify conditions of pretrial release in the event that the defendant is not involuntarily committed, is discharged or released from involuntary commitment, or is involuntarily committed on an outpatient basis.

(5) Evidence used at the hearing with regard to capacity to proceed is admissible in the involuntary civil commitment proceedings.

(6) Pursuant to G.S. 143B-147, the treatment plan for any defendant involuntarily committed after a finding of incapacity to proceed under this Article shall incorporate methods designed in accordance with best practices to restore the defendant's capacity to proceed for so long as the defendant remains committed pursuant to Chapter 122C of the General Statutes, whether on an inpatient or outpatient basis. However, a defendant's lack of capacity to proceed, standing alone, does not constitute an independent basis for continued civil involuntary commitment. (1973, c. 1286, s. 1; 1975, c. 166, s. 20; 1983, c. 380, s. 1; 1985, c. 589, s. 10; 1987, c. 596, s. 5; 2025-93, s. 7(a); 2026-38, s. 13(d).)

§ 15A-1004. (Effective until December 1, 2026) Orders for safeguarding of defendant and return for trial.

(a) When a defendant is found to be incapable of proceeding, the trial court must make appropriate orders to safeguard the defendant and to ensure his return for trial in the event that he subsequently becomes capable of proceeding.

(b) If the defendant is not placed in the custody of a hospital or other institution in a proceeding for involuntary civil commitment, appropriate orders may include any of the procedures, orders, and conditions provided in Article 26 of this Chapter, Bail, specifically including the power to place the defendant in the custody of a designated person or organization agreeing to supervise him.

(c) If the defendant is placed in the custody of a hospital or other institution in a proceeding for involuntary civil commitment, the orders must provide for reporting to the clerk if the defendant is to be released from the custody of the hospital or institution. The original or supplemental orders may make provisions as in subsection (b) in the event that the defendant is released. The court shall also order that the defendant shall be examined to determine whether the defendant has the capacity to proceed prior to release from custody. A report of the examination shall be provided pursuant to G.S. 15A-1002. If the defendant was charged with a violent crime, including a crime involving assault with a deadly weapon, and that charge has not been dismissed, the order must require that if the defendant is to be released from the custody of the hospital or other institution, he is to be released only to the custody of a specified law enforcement agency. If the original or supplemental orders do not specify to whom the respondent shall be released, the hospital or other institution may release the defendant to whomever it thinks appropriate.

(d) If the defendant is placed in the custody of a hospital or institution pursuant to proceedings for involuntary civil commitment, or if the defendant is placed in the custody of another person pursuant to subsection (b), the orders of the trial court must require that the hospital, institution, or individual report the condition of the defendant to the clerk at the same times that reports on the condition of the defendant-respondent are required under Part 7 of Article 5 of Chapter 122C of the General Statutes, or more frequently if the court requires, and immediately if the defendant gains capacity to proceed. The order must also require the report to state the likelihood of the defendant's gaining capacity to proceed, to the extent that the hospital, institution, or individual is capable of making such a judgment.

(e) The orders must require and provide for the return of the defendant to stand trial in the event that he gains capacity to proceed, unless the charges have been dismissed pursuant to G.S. 15A-1008, and may also provide for the confinement or pretrial release of the defendant in that event.

(f) The orders of the court may be amended or supplemented from time to time as changed conditions require. (1973, c. 1286, s. 1; 1975, c. 166, s. 20; 1983, c. 380, s. 2; c. 460, s. 2; 1985, c. 589, s. 11; 2013-18, s. 2.)

§ 15A-1004. (Effective December 1, 2026) Examinations and reports required for defendants lacking capacity.

(a) When a defendant is enrolled in a capacity restoration program pursuant to G.S. 15A-1003(d), the court shall order the program to do all of the following:

(1) To report to the clerk on the condition of the defendant every 60 days following program entry, and immediately if the defendant gains capacity to proceed, and to include in its report a statement of the likelihood of the defendant's gaining capacity to proceed within the remaining time period of the defendant's enrollment or within a subsequent period of enrollment, if ordered.

(2) To report to the clerk immediately if at any time it appears the defendant is not a suitable candidate for capacity restoration services, requires capacity restoration in a different setting, or poses an unnecessary risk of danger to program personnel.

(b) When a defendant is found incapable to proceed and is placed in the custody or care of a hospital, institution, or provider through a proceeding for involuntary civil commitment, whether on an inpatient or outpatient basis, the trial court's orders shall include all of the following requirements of the hospital, institution, or provider:

(1) A requirement to report to the clerk whenever the defendant will not be involuntarily committed, is to be discharged or released from involuntary commitment, or upon a change in status from involuntary commitment on an inpatient basis to involuntary commitment on an outpatient basis.

(2) A requirement to determine, prior to the defendant's discharge or release from involuntary commitment, whether the defendant has the capacity to proceed to trial and to provide a report of examination in compliance with the reporting requirements under G.S. 15A-1002 to the extent that the hospital, institution, or individual is capable of making such a judgment.

(3) A requirement to report the condition of the defendant to the clerk at the same times that reports on the condition of the defendant-respondent are required under Part 7 of Article 5 of Chapter 122C of the General Statutes, or more frequently if the court requires, and immediately if the defendant gains capacity to proceed, and to include in the report a statement of the likelihood of the defendant's gaining capacity to proceed.

(4) If the defendant was charged with a violent crime, including a crime involving assault with a deadly weapon, a requirement that if the defendant is to be released from the custody or care of the hospital, institution, or provider, the defendant is to be released only to the custody of a specified law enforcement agency. If the original or supplemental orders do not specify to whom the respondent shall be released, the hospital, institution, or provider may release the defendant to whomever is determined appropriate.

(c) When a defendant found incapable to proceed is placed in the secure custody of a designated person or organization as a condition of release, the court shall require the supervising person or organization to report to the clerk immediately if it appears that the defendant has gained capacity to proceed. The court may also require a periodic report to the clerk from the supervising person or organization as to the condition of the defendant and the defendant's likelihood of gaining capacity to proceed, to the extent the person or organization is qualified to do so. (1973, c. 1286, s. 1; 1975, c. 166, s. 20; 1983, c. 380, s. 2; c. 460, s. 2; 1985, c. 589, s. 11; 2013-18, s. 2; 2026-38, s. 13(e).)

§ 15A-1005. Reporting to court with regard to defendants incapable of proceeding.

The clerk of the court in which the criminal proceeding is pending must keep a docket of defendants who have been determined to be incapable of proceeding. The clerk must submit the docket to the senior resident superior court judge in his district at least semiannually. (1973, c. 1286, s. 1.)

§ 15A-1006. (Effective until December 1, 2026) Return of defendant for trial upon gaining capacity.

If a defendant who has been determined to be incapable of proceeding, and who is in the custody of an institution or an individual, has been determined by the institution or individual having custody to have gained capacity to proceed, the individual or institution shall provide written notification to the clerk in the county in which the criminal proceeding is pending. The clerk shall provide written notification to the district attorney, the defendant's attorney, and the sheriff. The sheriff shall return the defendant to the county for a supplemental hearing pursuant to G.S. 15A-1007, if conducted, and trial and hold the defendant for a supplemental hearing and trial, subject to the orders of the court entered pursuant to G.S. 15A-1004. (1973, c. 1286, s. 1; 2013-18, s. 3.)

§ 15A-1006. (Effective December 1, 2026) Return of defendant for supplemental hearing and trial upon gaining capacity; discharge and return of defendant from involuntary commitment.

(a) When the clerk is notified that a defendant has likely gained capacity to proceed to trial, the clerk shall provide written notification to the district attorney and the defendant's attorney within 72 hours, and the matter shall proceed to a supplemental hearing pursuant to G.S. 15A-1007, if conducted, and trial upon the court's determination that the defendant has gained capacity to proceed. If the defendant is currently enrolled in any court-ordered capacity restoration program pursuant to G.S. 15A-1003(d), this requirement shall remain in effect pending the supplemental hearing.

(b) When a defendant who is charged with a violent crime, including a crime involving assault with a deadly weapon, has likely gained capacity to proceed while involuntarily committed, the clerk shall provide further written notification to the sheriff, who shall return the defendant to the county for a supplemental hearing pursuant to G.S. 15A-1007, if conducted, and trial and hold the defendant for a supplemental hearing and trial, subject to orders of the court entered pursuant to G.S. 15A-1003. Any defendant held in custody under this subsection may be required to participate in capacity restoration services pending the supplemental hearing, if reasonably available. (1973, c. 1286, s. 1; 2013-18, s. 3; 2026-38, s. 13(f).)

§ 15A-1007. (Effective until December 1, 2026) Supplemental hearings.

(a) When it has been reported to the court that a defendant has gained capacity to proceed, or when the defendant has been determined by the individual or institution having custody of him to have gained capacity and has been returned for trial, in accordance with G.S. 15A-1004(e) and G.S. 15A-1006, the clerk shall notify the district attorney. Upon receiving the notification, the district attorney shall calendar the matter for hearing at the next available term of court but no later than 30 days after receiving the notification. The court may hold a supplemental hearing to determine whether the defendant has capacity to proceed. The court may take any action at the supplemental hearing that it could have taken at an original hearing to determine the capacity of the defendant to proceed.

(b) The court may hold a supplemental hearing any time upon its own determination that a hearing is appropriate or necessary to inquire into the condition of the defendant.

(c) The court must hold a supplemental hearing if it appears that any of the conditions for dismissal of the charges have been met.

(d) If the court determines in a supplemental hearing that a defendant has gained the capacity to proceed, the case shall be calendared for trial at the earliest practicable time. Continuances that extend beyond 60 days after initial calendaring of the trial shall be granted only in extraordinary circumstances when necessary for the proper administration of justice, and the court shall issue a written order stating the grounds for granting the continuance. (1973, c. 1286, s. 1; 2013-18, s. 4.)

§ 15A-1007. (Effective December 1, 2026) Supplemental capacity hearings.

(a) Upon receiving notification from the clerk under G.S. 15A-1006 that a defendant has likely gained capacity to proceed, the district attorney shall calendar the matter for hearing within 30 days of receiving the notification or at the next available term of court. The court may hold a supplemental hearing to determine whether the defendant has capacity to proceed. The parties may stipulate to the defendant's capacity but not to the defendant's lack of capacity. If the parties stipulate to a finding of capacity, the judge may review new evidence, including new evaluations, and make a determination of capacity without holding a hearing.

(b) If the court determines that a defendant has gained the capacity to proceed, the case shall be calendared for trial at the earliest practicable time. Continuances that extend beyond 60 days after initial calendaring of the trial shall be granted only in extraordinary circumstances when necessary for the proper administration of justice, and the court shall issue a written order stating the grounds for granting the continuance. The court may order the defendant to receive capacity restoration services pending further criminal proceedings if the court finds that such services are reasonably available and reasonably necessary to ensure the defendant's capacity does not deteriorate.

(1) When the defendant has been ordered to participate in a capacity restoration program pursuant to G.S. 15A-1003(d) and the program has not reported to the clerk that the defendant has gained capacity to proceed prior to the end of the defendant's enrollment period.

(2) Every four months if, pursuant to G.S. 15A-1003(d), the court has previously waived the requirement for capacity restoration services.

(3) Every four months if, pursuant to G.S. 15A-1003(e), the defendant has been found not likely to gain capacity within the foreseeable future and the charges have not already been disposed.

(4) When it appears to the court that any of the conditions for disposition under G.S. 15A-1008 have been met.

(d) Upon motion of the district attorney, the defendant's attorney, or the court's own motion, the court may hold a supplemental hearing any time the court determines it appropriate or necessary to inquire into the condition of the defendant or to consider matters relevant to disposition under G.S. 15A-1008.

(e) The court may take any action upon supplemental hearing that the court could have taken at the initial hearing on a defendant's capacity to proceed. [The following provisions apply:]

(1) A defendant may be ordered to participate in a capacity restoration program pursuant to G.S. 15A-1003(d) whenever the court finds upon supplemental hearing that it is reasonably likely the defendant will gain capacity to proceed within the foreseeable future. The court may also extend the time for capacity restoration services in further increments of no more than four months per extension, not counting wait times for program entry, upon a finding that the defendant's continued participation in a capacity restoration program is reasonably likely to restore the defendant's capacity. A defendant who is not charged with a felony offense may not be required to participate in a capacity restoration program under G.S. 15A-1003(d) with respect to the same charges for a total period exceeding 12 months, not inclusive of wait times for program entry. Additionally, a defendant's enrollment in a capacity restoration program will not operate to preclude dismissal of the charges when any condition of G.S. 15A-1008 is found to be met.

(2) At any supplemental hearing when the court finds reasonable grounds that a defendant who lacks capacity to proceed probably has a mental illness and is either (i) dangerous to self or others as defined under G.S. 122C-3 or (ii) in need of treatment in order to prevent further disability or deterioration that would predictably result in dangerousness, the court may proceed with a referral for civil commitment pursuant to G.S. 15A-1003(a).

(3) A defendant released or discharged from involuntary civil commitment but who is found to still lack capacity to proceed is subject to appropriate supplemental court orders pursuant to G.S. 15A-1003 if the charges are not dismissed pursuant to G.S. 15A-1008, including orders to participate in a capacity restoration program pursuant to G.S. 15A-1003(d). (1973, c. 1286, s. 1; 2013-18, s. 4; 2026-38, s. 13(g).)

§ 15A-1008. (Effective until December 1, 2026) Dismissal of charges.

(a) When a defendant lacks capacity to proceed, the court shall dismiss the charges upon the earliest of the following occurrences:

(1) When it appears to the satisfaction of the court that the defendant will not gain capacity to proceed.

(2) When as a result of incarceration, involuntary commitment to an inpatient facility, or other court-ordered confinement, the defendant has been substantially deprived of his liberty for a period of time equal to or in excess of the maximum term of imprisonment permissible for prior record Level VI for felonies or prior conviction Level III for misdemeanors for the most serious offense charged.

(3) Upon the expiration of a period of five years from the date of determination of incapacity to proceed in the case of misdemeanor charges and a period of 10 years in the case of felony charges.

(b) A dismissal entered pursuant to subdivision (2) of subsection (a) of this section shall be without leave.

(c) A dismissal entered pursuant to subdivision (1) or (3) of subsection (a) of this section shall be issued without prejudice to the refiling of the charges.

(d) Dismissal of criminal charges pursuant to this section shall be upon motion of the prosecutor or the defendant or upon the court's own motion and shall not be expunged pursuant to G.S. 15A-146. (1973, c. 1286, s. 1; 2013-18, s. 5; 2025-93, s. 7(b).)

§ 15A-1008. (Effective December 1, 2026) Dismissal of charges; referral of defendant for civil commitment proceedings upon dismissal.

(a) When a defendant lacks capacity to proceed, the court shall dismiss the charges upon the earliest of the following occurrences:

(1) When it appears to the satisfaction of the court that the defendant will not gain capacity to proceed.

(3) Upon the expiration of a period of five years from the date of determination of incapacity to proceed in the case of misdemeanor charges and a period of 10 years in the case of felony charges.

(b) A dismissal entered pursuant to subdivision (2) of subsection (a) of this section shall be without leave.

(c) A dismissal entered pursuant to subdivision (1) or (3) of subsection (a) of this section shall be issued without prejudice to the refiling of the charges.

(d) Dismissal of criminal charges pursuant to this section shall be upon motion of the prosecutor or the defendant or upon the court's own motion and shall not be expunged pursuant to G.S. 15A-146.

(e) Upon motion of the district attorney prior to dismissal of the charges under this section, the court shall determine whether there are reasonable grounds to believe the defendant meets the criteria for involuntary commitment under Part 7 of Article 5 of Chapter 122C of the General Statutes. If the court finds reasonable grounds to believe that the defendant meets the criteria, the court shall make findings of fact and issue a custody order in the same manner, upon the same grounds and with the same effect as an order issued by a clerk or magistrate pursuant to G.S. 122C-261. Proceedings thereafter, upon dismissal of the criminal charges, are in accordance with Part 7 of Article 5 of Chapter 122C of the General Statutes and with G.S. 15A-1003(g)(1), (2), (3), and (5). If the defendant was charged with a violent crime, including a crime involving assault with a deadly weapon, the judge's custody order shall require a law enforcement officer to take the defendant directly to a 24-hour facility as described in G.S. 122C-252, and the order must indicate that the defendant was charged with a violent crime and that he was found incapable of proceeding. The court may make appropriate orders for the temporary detention of the defendant pending that proceeding. Evidence used at the hearing with regard to capacity to proceed is admissible in the involuntary civil commitment proceedings. (1973, c. 1286, s. 1; 2013-18, s. 5; 2025-93, s. 7(b); 2026-38, s. 13(h).)

§ 15A-1009: Repealed by Session Laws 2013-18, s. 6, effective December 1, 2013.

§ 15A-1010. (Effective December 1, 2026) Compelled medication for capacity restoration generally prohibited; limited conditions when court may order compelled medication of certain defendants charged with serious felony offenses.

(a) Except as authorized under subsection (b) of this section, a defendant found incapable to proceed to trial may not be compelled to take any medication for the purpose of gaining or maintaining capacity.

(b) Upon the State's motion or upon the court's own motion, the court may order compelled medication of an uncooperative defendant for purposes of gaining or maintaining capacity to proceed if the court affirmatively finds by clear and convincing evidence all of the following, in writing, based on the particular circumstances presented and specific to the defendant in question:

(1) The defendant is charged with a serious offense against the person or property, and there are no apparent special circumstances which lessen the importance of the government's interest in bringing the defendant to trial.

(2) The proposed treatment is reasonable and appropriate for the mental health condition of the defendant and its proposed use is consistent with accepted medical standards.

(3) The proposed treatment will not cause an unnecessary risk to the defendant's physical or mental health.

(4) The proposed treatment is necessary insofar as it is substantially likely to render the defendant competent for trial and less intrusive means would not further this interest.

(5) The proposed treatment is substantially unlikely to have side effects that undermine the fairness of the defendant's trial.

(c) The administration of any treatment ordered pursuant to this section must be at the direction and under the supervision of a licensed medical professional. However, the proposed course of treatment shall be reviewed and authorized by the court prior to implementation, and the court may impose any other conditions necessary to protect the rights of the defendant and to ensure the safety of others, not inconsistent with accepted medical standards.

(d) The court's treatment order may provide for multiple alternative courses of treatment in the discretion of the licensed medical professional treating the defendant, so long as each such alternative course of treatment is reviewed by the court and found to meet the requirements of subsection (b) of this section.

(e) The court may review and amend previous compelled medication orders upon motion of the district attorney, the defendant's attorney, the court's own motion, or upon notice by the treatment provider to the clerk that a change in the approved course or alternative courses of treatment is warranted.

(f) This section does not preclude medical treatment of persons involuntarily committed as authorized under Chapter 122C of the General Statutes or medical treatment authorized under any other provision of law.

(g) Treatment ordered pursuant to this section is subject to G.S. 15A-1001(e). (2026-38, s. 13(i).)