NORTH CAROLINA GENERAL ASSEMBLY
1979 SESSION
CHAPTER 915
SENATE BILL 324
AN ACT TO AMEND ARTICLE 5A OF CHAPTER 122 TO CHANGE AND CLARIFY THE "DANGEROUSNESS" STANDARD FOR INVOLUNTARILY COMMITTING A PERSON TO A MENTAL HEALTH FACILITY AND TO MAKE OTHER CHANGES TO THE INVOLUNTARY COMMITMENT LAW.
The General Assembly of North Carolina enacts:
Section 1. G.S. 122-58.2(1) is hereby amended by rewriting that subsection to read as follows:
"(1) The phrase 'dangerous to himself or others' when used in this Article is defined as follows:
a. 'Dangerous to himself shall mean that within the recent past:
1. The person has acted in such manner as to evidence:
I. that he would be unable without care, supervision, and the continued assistance of others not otherwise available, to exercise self-control, judgment, and discretion in the conduct of his daily responsibilities and social relations, or to satisfy his need for nourishment, personal or medical care, shelter, or self-protection and safety; and
II. that there is a reasonable probability of serious physical debilitation to him within the near future unless adequate treatment is afforded pursuant to this Article. A showing of behavior that is grossly irrational or of actions which the person is unable to control or of behavior that is grossly inappropriate to the situation or other evidence of severely impaired insight and judgment shall create a prima facie inference that the person is unable to care for himself; or
2. The person has attempted suicide or threatened suicide and that there is a reasonable probability of suicide unless adequate treatment is afforded under this Article; or
3. The person has mutilated himself or attempted to mutilate himself and that there is a reasonable probability of serious self-mutilation unless adequate treatment is afforded under this Article.
b. 'Dangerous to others' shall mean that within the recent past, the person has inflicted or attempted to inflict or threatened to inflict serious bodily harm on another or has acted in such a manner as to create a substantial risk of serious bodily harm to another and that there is a reasonable probability that such conduct will be repeated."
Sec. 2. G.S. 122-58.1 is hereby amended by striking the word "imminently" immediately following the word "and" and immediately preceding the word "dangerous" on line 3 of that section.
Sec. 3. G.S. 122-58.3 is hereby amended by striking the word "imminently" immediately following the word "is" and immediately preceding the word "dangerous" on lines 2 and 3 of that section. G.S. 122-58.3 is further amended by striking the word "imminently" immediately following the word "and" and immediately preceding the word "dangerous" on line 12 of that section. G.S. 122-58.3 is further amended by striking the word "imminently" immediately following the word "is" on line 13 of that section.
Sec. 4. G.S. 122-58.4 is hereby amended by striking the word "imminently" immediately following the word "not" and immediately preceding the word "dangerous" on line 21 of that section. G.S. 122-58.4 is further amended by striking the word "imminently" immediately preceding the word "dangerous" on line 23 of that section. G.S. 122-58.4 is further amended by striking the word "imminently" immediately following the word "is" and immediately preceding the word "dangerous" on lines 25 and 27 of that section.
Sec. 5. G.S. 122-58.5 is hereby amended by striking the word "imminently" immediately preceding the word "dangerous" on line 3 of that section. G.S. 122-58.5 is further amended by striking the word "imminently" immediately following the word "is" and immediately preceding the word "dangerous" on line 4 of that section.
Sec. 6. G.S. 122-58.6 is hereby amended by striking the word "imminently" immediately following the word "is" and immediately preceding the word "dangerous" on lines 5 and 6 of that section. G.S. 122-58.6 is further amended by striking the word "imminently" immediately following the word "not" and immediately preceding the word "dangerous" on line 9 of that section.
Sec. 7. G.S. 122-58.7 is hereby amended by striking the word "imminently" immediately following the word "and" and immediately preceding the word "dangerous" on line 43 of that section. G.S. 122-58.7 is further amended by striking the word "imminently" immediately following the word "is" and immediately preceding the word "dangerous" on line 44 of that section.
Sec. 8. G.S. 122-58.8 is hereby amended by striking the word "imminently" immediately following the word "not" and immediately preceding the word "dangerous" on line 2 of that section. G.S. 122-58.8 is further amended by striking the word "imminently" immediately following the word "be" and immediately preceding the word "dangerous" on line 4 of that section. G.S. 122-58.8 is further amended by striking the word "imminently" immediately following the word "is" and immediately preceding the word "dangerous" on lines 7 and 9.
Sec. 9. G.S. 122-58.11 is hereby amended by striking the word "imminently" immediately following the word "and" and immediately preceding the word "dangerous" on line 21 of that section. G.S. 122-58.11 is further amended by striking the word "imminently" immediately following the word "is" and immediately preceding the word "dangerous" on line 23 of that section.
Sec. 10. G.S. 122-58.19 is hereby amended by striking the word "imminently" immediately following the word "is" and immediately preceding the word "dangerous" on line 2 of that section.
Sec. 11. Wherever the phrase "imminently dangerous to himself or others" or the phrase "imminently dangerous to others" or phrases of like import appear in the General Statutes in connection with the involuntary commitment standard, then those phrases are hereby amended by striking the modifier "imminently".
Sec. 12. Article 5A of Chapter 122 of the General Statutes is hereby amended by adding a new section to be numbered G.S. 122-58.24 and to read as follows:
"§ 122-58.24. Representation of State's interest by Attorney General. — The Attorney General is hereby authorized to employ four attorneys, one to be assigned by him full time to each of the State's four regional psychiatric facilities to represent the State's interest at commitment hearings, rehearings, and supplemental hearings held at the hospitals under Articles 4 and 5A of Chapter 122 of the General Statutes of North Carolina, and to provide liaison and consultation services concerning these matters. Such attorney shall be subject to all the provisions of Chapter 126 of the General Statutes relating to the State Personnel System. Such attorney shall also perform additional duties as may be assigned to him by the Attorney General."
Sec. 13. G.S. 122-58.7(b), as the same appears in the 1977 Cumulative Supplement to Volume 3B of the North Carolina General Statutes, is hereby rewritten to read as follows:
"(b) The attorney who is a member of the staff of the Attorney General assigned to one of the State's four regional psychiatric facilities shall represent the State's interest at commitment hearings, rehearings, and supplemental hearings held at the hospital to which he is assigned under Articles 4 and 5A of Chapter 122 of the General Statutes of North Carolina. Each of these attorneys shall also provide the liaison and consultation services necessary for these matters."
Sec. 14. Wherever the phrases "special advocate," "special advocate for the petitioner," or words of similar import appear in the General Statutes, then those phrases are hereby amended by deleting them and substituting the phrase "Attorney General representing the State's interest" in their place.
Sec. 15. G.S. 122-58.8(b) is hereby rewritten to read as follows:
"(b) If the court finds by clear, cogent, and convincing evidence that the respondent is mentally ill or inebriate, and is dangerous to himself or others, or is mentally retarded, and because of an accompanying behavior disorder, is dangerous to others, it may order treatment, inpatient or outpatient, or a combination of both for a period not in excess of 90 days, at a mental health facility, public or private, designated or licensed by the Department of Human Resources. The court shall make findings of facts as to the availability and appropriateness of available outpatient treatment before ordering outpatient treatment. If the court has sufficient evidence to order commitment, but lacks sufficient evidence to determine if the commitment should be to an inpatient or outpatient facility, or a combination of both, the court may continue the case for disposition for not more than seven days for the production of evidence to help in determining such disposition. Such continuance may be granted on motion of special counsel, Attorney General representing the State's interest, or on the court's own motion. Treatment at a private facility shall be at the expense of the respondent to the extent that such charges are not disposed of by contract between the area mental health authority and the private facility. If the court orders outpatient treatment a copy of the court order will be sent to the outpatient treatment facility to which the respondent was committed."
Sec. 16. G.S. 122-58.8(c) is hereby rewritten to read as follows:
"(c) If the court orders outpatient treatment, and the respondent fails to adhere to the prescribed outpatient treatment program, the director of the mental health center or his designee shall promptly notify the Attorney General representing the State's interest. The Attorney General representing the State's interest then shall notify the clerk of superior court of the county in which the respondent was committed for outpatient treatment and the clerk of superior court in the county where the inpatient mental health facility is located. Upon receipt of written or oral notice from the Attorney General representing the State's interest, the clerk of the county in which the respondent was committed for outpatient treatment shall issue a custody order, authorizing a law enforcement officer to take the respondent into custody and transport him to the appropriate mental health facility. Before the respondent is transported to a private mental health facility, the director of the facility must agree to the admission.
When the respondent is returned to the appropriate mental health facility, the clerk of superior court in that county shall calendar a supplemental hearing to be held within 10 days of the time the respondent was taken into custody.
At the supplemental hearing the court must find by clear, cogent, and convincing evidence: (1) that the respondent had been given a copy of his prescribed outpatient treatment plan and the plan had been explained to the respondent; (2) that the respondent had not adhered to the prescribed outpatient treatment program; and (3) that the respondent meets the criteria for commitment as set out above in subsection (b). Upon such findings, the court may order inpatient treatment in a designated or licensed facility for a period of not more than 90 days running from the date of the order."
Sec. 17. G.S. 122-58.11(d) and G.S. 122-58.11(e) are hereby rewritten to read as follows:
"(d) If the court finds that the respondent is not in need of continued hospitalization or outpatient care, it shall unconditionally discharge him. A copy of the discharge order shall be furnished by the clerk of superior court of the county of original commitment to the facility from which the respondent is being discharged. If the court finds by clear, cogent, and convincing evidence that the respondent is mentally ill or inebriate, and dangerous to himself or others, or is mentally retarded, and because of an accompanying behavior disorder, is dangerous to others, and in need of continued hospitalization, or, in the alternative, in need of outpatient care, or a combination of both, it may order hospitalization (or outpatient care, as the case may be) for an additional period not in excess of 180 days. If outpatient commitment is ordered and the respondent fails to adhere to the prescribed treatment program, a supplemental hearing may be held as in G.S. 122-58.8(c) above.
(e) Fifteen days before the end of the second commitment period, and annually thereafter, the chief of medical services of the facility shall review and evaluate the condition of each respondent, and if he determines that a respondent is in continued need of hospitalization or, in the alternative, in need of outpatient treatment, or a combination of both, he shall so notify the respondent, his counsel, and the clerk of superior court of the county in which the facility is located. Unless the respondent through his counsel files with the clerk a written waiver of his right to a rehearing, the clerk, on order of a district court judge of the district in which the facility is located, shall calendar a rehearing for not later than the end of the current commitment period. The procedures and standards for the rehearing are the same as for the first rehearing. Any recommitment ordered shall be for only such period of time as continued treatment is deemed necessary by the chief of medical services of the treatment facility, but in no event longer than one year."
Sec. 18. G.S. 122-58.3(d) is hereby rewritten to read as follows:
"(d) Any affiant who is a qualified physician may execute the oath to the affidavit before any official authorized to administer oaths. He is not required to appear before the clerk or magistrate for this purpose. If a physician executes an affidavit for commitment of a respondent already hospitalized or presented for hospitalization at a mental health facility described in G.S. 12258.4(c), a second qualified physician, not treating the patient, shall be required to perform the examination required by G.S. 122-58.6."
Sec. 19. G.S. 122-58.9 is hereby rewritten to read as follows:
"§ 122-58.9. Appeal. — Judgment of the district court is final. Appeal may be had to the Court of Appeals, on the record as in civil cases. Appeal does not stay the commitment, unless so ordered by the Court of Appeals. The Attorney General shall represent the State's interest on appeal. The district court retains limited jurisdiction for the purpose of hearing all reviews, rehearings, or supplemental hearings allowed or required under this Article."
Sec. 20. Article 5A of Chapter 122 of the General Statutes is hereby amended by adding two new sections at the end of said Article to be numbered as G.S. 122-58.25 and G.S. 122-58.26, and to read as follows:
"§ 122-58.25. Confidentiality of court record of minors committed involuntarily. — (a) The court records of a minor made in all proceedings pursuant to this Article are hereby declared to be confidential and shall not be open to the general public for inspection except when such disclosure is provided for in G.S. 122-58.26.
(b) It shall be a misdemeanor for any person to disclose the confidential court records of subsection (a) of this section to members of the general public.
(c) The court records described in subsection (a) of this section shall, upon the request of the parent, guardian, or person committed involuntarily, be expunged from the files of the court after the person committed involuntarily has reached adulthood and has been released.
"§ 122-58.26. Exception to confidentiality rule; procedure. — Any person seeking information contained in the court files or the court records of the proceedings involving minors made pursuant to an action under this Article may file a written motion in the cause setting out why the information is needed. A district court judge may issue an order to disclose the information sought if he finds such order is appropriate under the circumstances and if he finds that it is in the best interest of the minor or of the public to have such information disclosed."
Sec. 21. G.S. 122-58.14 is hereby amended by adding a new subsection to read as follows:
"(c) In providing the transportation required by this section, the law enforcement officer or other governmental employee may use reasonable force to restrain the respondent if it appears necessary to protect himself, the respondent, or others. No law enforcement officer or other governmental employee 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."
Sec. 22. G.S. 122-58.14 is hereby amended by adding a new subsection (d) to read as follows:
"(d) Notwithstanding the provisions of subsection (a) of this section, a clerk, a magistrate, or a district court judge where applicable may authorize the family or immediate friends of the respondent, if they so request, to transport the respondent in accordance with the procedures of this Article. Such authorization shall only be granted in cases where the danger to the public, the family or friends of the respondent, or the respondent himself is not substantial. The family or immediate friends of the respondent shall bear the costs of providing such transportation."
Sec. 23. There is appropriated to the Department of Justice from the General Fund the sum of one hundred one thousand one hundred dollars ($101,100) for fiscal year 1979‑1980 and the sum of one hundred thirty-five thousand one hundred dollars ($135,100) for fiscal year 1980-1981, which funds are to be used to employ such four attorneys and four secretaries, as full-time employees of the Department of Justice, to represent the State's interests in involuntary commitment proceedings at State hospitals under Chapter 122 and to administratively and logistically support them. It is contemplated that adequate, appropriate office space, utilities and telephones for such effective operation will be supplied by the respective regional psychiatric hospital where each attorney is located.
Sec. 24. This act shall become effective October 1, 1979.
In the General Assembly read three times and ratified, this the 8th day of June, 1979.