Custody of Respondent During Preliminary Psychiatric Evaluation

Subject:

Requested By: J. Daniel Searcy, Ph.D. Area Director Johnston County Area Mental Health, Mental Retardation and Substance Abuse Services

Question: Who has custody of a client that is involved in an involuntary commitment proceeding and has been taken into custody by a law enforcement officer after they have arrived at the psychiatric inpatient facility but prior to acceptance by the admitting physician?

Conclusion: For the first evaluation required by G.S. 122-58.4, the law enforcement officer retains custody; for the second evaluation required by G.S. 122-58.6, the responsible individual at the inpatient facility where the evaluation is being conducted has custody.

When a law enforcement officer has taken a respondent (client) into custody for involuntary commitment proceedings pursuant to an order of a clerk/magistrate, G.S. 122-58.4 requires that officer to take the respondent to a qualified physician for evaluation. The evaluation must be conducted within 24 hours after the officer has assumed custody. G.S. 122-58.4 provides that, if a physician is not immediately available, the officer may temporarily detain the respondent as described in subsection (a) thereof. G.S. 122-58.4(c) further directs that the law enforcement officer shall release the respondent if this first qualified physician finds that the respondent does not meet the standards for involuntary commitment. However, that same statute prescribes that, if the first physician finds that the standards are met, the law enforcement officer shall take the respondent to a proper facility "for temporary custody, observation and treatment" pending his hearing.

At this stage, the statutory provisions dealing with the second evaluation — quite probably the one to which the present question is addressed — come into play. G.S. 122-58.6 sets forth the procedures involved in the second evaluation by a qualified physician. That statute mandates that a qualified physician at an appropriate facility must evaluate the respondent within 24 hours of arrival. Significantly, though, the statute directs that, if the qualified physician at this facility finds that the respondent meets the involuntary commitment standards, he (the physician) shall hold the respondent at the facility pending his hearing. Conversely, according to the statute, if this physician finds that the respondent does not meet the commitment standards, he (the physician) shall release the respondent pending his hearing.

The precise language in the two statutes under consideration clearly demonstrates a legislative intent to distinguish between responsibilities in the first and second evaluations. Thus, as to the second evaluation, the statute makes it clear that the custodial responsibilities for the respondent devolve upon personnel at the treatment facility at the time the law enforcement officer delivers him to such facility — i.e., the appropriate personnel at the facility have this custodial responsibility before the respondent’s admission as a patient as well as after his admission.

It seems relatively safe to assume that, in normal practice the evaluations are promptly conducted, that there exists no basis for holding a respondent for a long period of time before evaluation, and that it would be an extremely unusual situation for any delay even approximating 24 hours to occur. Further, it should be noted that G.S. 122-58.6 contains the following language regarding transportation of a respondent who is released by the second qualified physician:

"Unless the respondent provides his own transportation, the law enforcement oficer shall return the respondent to the originating county."

the logical intent behind this provision is that the law enforcement officer is responsible for transporting a respondent released under these circumstances back to the point where he took him into custody, if provision of such transportation is necessary. Therefore, the formulation of appropriate procedures for the prompt release and transportation of respondents released under these circumstances would appear to be beneficial to all parties concerned and to serve to prevent any potentiality for liability stemming from undue or unwarranted delay in that release. G.S. 122

58.16 requires the formulation of plans for the delivery of local mental health services; these plans are formulated after consultation with local agencies involved and would seem to afford an appropriate vehicle for prescribing procedures involved in these evaluations.

Rufus L. Edmisten Attorney General

William F. O’Connell Special Deputy Attorney General