State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_122C > GS_122C-261

Part 7. Involuntary Commitment ofthe Mentally Ill; Facilities for the Mentally Ill.

§ 122C‑261.  Affidavitand petition before clerk or magistrate when immediate hospitalization is notnecessary; custody order.

(a)        Anyone who hasknowledge of an individual who is mentally ill and either (i) dangerous toself, as defined in G.S. 122C‑3(11)a., or dangerous to others, as definedin G.S. 122C‑3(11)b., or (ii) in need of treatment in order to preventfurther disability or deterioration that would predictably result indangerousness, may appear before a clerk or assistant or deputy clerk ofsuperior court or a magistrate and execute an affidavit to this effect, andpetition the clerk or magistrate for issuance of an order to take therespondent into custody for examination by a physician or eligiblepsychologist. The affidavit shall include the facts on which the affiant'sopinion is based. If the affiant has knowledge or reasonably believes that therespondent, in addition to being mentally ill, is also mentally retarded, thisfact shall be stated in the affidavit. Jurisdiction under this subsection is inthe clerk or magistrate in the county where the respondent resides or is found.

(b)        If the clerk ormagistrate finds reasonable grounds to believe that the facts alleged in theaffidavit are true and that the respondent is probably mentally ill and either(i) dangerous to self, as defined in G.S. 122C‑3(11)a., or dangerous toothers, as defined in G.S. 122C‑3(11)b., or (ii) in need of treatment inorder to prevent further disability or deterioration that would predictablyresult in dangerousness, the clerk or magistrate shall issue an order to a lawenforcement officer or any other person authorized under G.S. 122C‑251 totake the respondent into custody for examination by a physician or eligiblepsychologist. If the clerk or magistrate finds that, in addition to probablybeing mentally ill, the respondent is also probably mentally retarded, theclerk or magistrate shall contact the area authority before issuing a custodyorder and the area authority shall designate the facility to which therespondent is to be taken for examination by a physician or eligiblepsychologist. The clerk or magistrate shall provide the petitioner and therespondent, if present, with specific information regarding the next steps thatwill occur for the respondent.

(c)        If the clerk ormagistrate issues a custody order, the clerk or magistrate shall also makeinquiry in any reliable way as to whether the respondent is indigent within themeaning of G.S. 7A‑450. A magistrate shall report the result of thisinquiry to the clerk.

(d)        If the affiant is aphysician or eligible psychologist, the affiant may execute the affidavitbefore any official authorized to administer oaths. This affiant is notrequired to appear before the clerk or magistrate for this purpose. Thisaffiant shall file the affidavit with the clerk or magistrate by delivering tothe clerk or magistrate the original affidavit or a copy in paper form that isprinted through the facsimile transmission of the affidavit. If the affidavitis filed through facsimile transmission, the affiant shall mail the originalaffidavit no later than five days after the facsimile transmission of theaffidavit to the clerk or magistrate to be filed by the clerk or magistratewith the facsimile copy of the affidavit. This affiant's examination shallcomply with the requirements of the initial examination as provided in G.S.122C‑263(c). If the physician or eligible psychologist recommendsoutpatient commitment and the clerk or magistrate finds probable cause tobelieve that the respondent meets the criteria for outpatient commitment, theclerk or magistrate shall issue an order that a hearing before a district courtjudge be held to determine whether the respondent will be involuntarilycommitted. The physician or eligible psychologist shall provide the respondentwith written notice of any scheduled appointment and the name, address, andtelephone number of the proposed outpatient treatment physician or center. Thephysician or eligible psychologist shall contact the local management entitythat serves the county where the respondent resides or the local managemententity that coordinated services for the respondent to inform the localmanagement entity that the respondent has been scheduled for an appointmentwith an outpatient treatment physician or center. If the physician or eligiblepsychologist recommends inpatient commitment and the clerk or magistrate findsprobable cause to believe that the respondent meets the criteria for inpatientcommitment, the clerk or magistrate shall issue an order for transportation toor custody at a 24‑hour facility described in G.S. 122C‑252,provided that if a 24‑hour facility is not immediately available orappropriate to the respondent's medical condition, the respondent may betemporarily detained under appropriate supervision and, upon furtherexamination, released in accordance with G.S. 122C‑263(d)(2). If theclerk or magistrate finds probable cause to believe that the respondent, inaddition to being mentally ill, is also mentally retarded, the clerk ormagistrate shall contact the area authority before issuing the order and thearea authority shall designate the facility to which the respondent is to betransported. If a physician or eligible psychologist executes an affidavit forinpatient commitment of a respondent, a second physician shall be required toperform the examination required by G.S. 122C‑266.

(e)        Upon receipt of thecustody order of the clerk or magistrate or a custody order issued by the courtpursuant to G.S. 15A‑1003, a law enforcement officer or other persondesignated in the order shall take the respondent into custody within 24 hoursafter the order is signed, and proceed according to G.S. 122C‑263. Thecustody order is valid throughout the State.

(f)         When a petition isfiled for an individual who is a resident of a single portal area, theprocedures for examination by a physician or eligible psychologist as set forthin G.S. 122C‑263 shall be carried out in accordance with the area plan.Prior to issuance of a custody order for a respondent who resides in an areaauthority with a single portal plan, the clerk or magistrate shall communicatewith the area authority to determine the appropriate 24‑hour facility towhich the respondent should be admitted according to the area plan or todetermine if there are more appropriate resources available through the areaauthority to assist the petitioner or the respondent. When an individual from asingle portal area is presented for commitment at a 24‑hour area or Statefacility directly, the individual may not be accepted for admission until thefacility notifies the area authority and the area authority agrees to theadmission. If the area authority does not agree to the admission, it shalldetermine the appropriate 24‑hour facility to which the individual shouldbe admitted according to the area plan or determine if there are moreappropriate resources available through the area authority to assist the individual.If the area authority agrees to the admission, further planning of treatmentfor the client is the joint responsibility of the area authority and thefacility as prescribed in the area plan.

Notwithstanding the provisionsof this section, in no event shall an individual known or reasonably believedto be mentally retarded be admitted to a State psychiatric hospital, except asfollows:

(1)        Persons described inG.S. 122C‑266(b);

(2)        Persons admittedpursuant to G.S. 15A‑1321;

(3)        Respondents who areso extremely dangerous as to pose a serious threat to the community and toother patients committed to non‑State hospital psychiatric inpatientunits, as determined by the Director of the Division of Mental Health,Developmental Disabilities, and Substance Abuse Services or his designee; and

(4)        Respondents who areso gravely disabled by both multiple disorders and medical fragility ormultiple disorders and deafness that alternative care is inappropriate, asdetermined by the Director of the Division of Mental Health, DevelopmentalDisabilities, and Substance Abuse Services or his designee.

Individuals transported to aState facility for the mentally ill who are not admitted by the facility may betransported by law enforcement officers or designated staff of the Statefacility in State‑owned vehicles to an appropriate 24‑hour facilitythat provides psychiatric inpatient care.

No later than 24 hours afterthe transfer, the responsible professional at the original facility shallnotify the petitioner, the clerk of court, and, if consent is granted by therespondent, the next of kin, that the transfer has been completed.  (1973, c. 726, s. 1; c.1408, s. 1; 1977, c. 400, s. 3; 1979, c. 164, s. 2; c. 915, ss. 3, 18; 1983, c.383, s. 5; c. 638, ss. 3‑5; c. 864, s. 4; 1985, c. 589, s. 2; c. 695, ss.2, 4; 1985 (Reg. Sess., 1986), c. 863, s. 17; 1989 (Reg. Sess., 1990), c. 823,ss. 1, 2; c. 1024, s. 27.1; 1991, c. 37, s. 7; 1995 (Reg. Sess., 1996), c. 739,s. 6; 1997‑456, s. 47; 2004‑23, s. 1(a); 2005‑135, s. 1; 2009‑315,s. 1; 2009‑340, s. 1.)