Preliminary Evaluation of Defendant Incapable of Proceeding With Trial

Subject:

Requested By: Dr. William Thomas Chief of Adult Services Division of Mental Health and Mental Retardation Services

Question: When a defendant is found incapable of proceeding with a criminal trial and the trial court takes the action directed by G.S. 15A-1003 (a), is the examination by a qualified physician as described in G.S. 122-58.4 required?

Conclusion: Yes.

In a situation involving a defendant in a criminal action who is found to lack the mental capacity to proceed with trial, G.S. 15A-1003(a) provides as follows:

"If a defendant is found to be incapable of proceeding, the Court must enter an order directing the initiation of proceedings for involuntary civil commitment, and the Court’s order is authority for a magistrate or clerk to order a law-enforcement officer to take the defendant into custody for examination by a qualified physician under G.S. 122-58.3(b), or for processing as an emergency case under G.S. 122-58.18."

In turn, G.S. 122-58.3(b) requires the magistrate or clerk to ". . . issue an order to a law-enforcement officer to take the respondent into custody for examination by a qualified physician."

Apparently some disagreement has developed as to whether the law-enforcement officer, when confronted with this type of respondent, is required to take him to one of the facilities described in G.S. 122-58.4. Reportedly, in some instances, arguments have been advanced that the respondent is to be taken directly to a regional hospital.

The language of the governing statutes makes it clear that it was the intent of the General Assembly to afford this type of respondent the same due process as that available to others. One step of that due process is the preliminary evaluation by a local qualified physician as required by

G.S. 122-58.4. Only upon a determination by that physician that the defendant/respondent meets the standards for involuntary commitment is he to be disposed of in accordance with G.S. 122-58.4(c) and G.S. 122-58.6(a).

Of course, as permitted by G.S. 15A-1003(a), situations falling within the purview of G.S.

122-58.18 should be handled in accordance with that statute. Further, all personnel responsible for the processing of defendants/respondents should be aware that G.S. 15A-1004 quite logically makes specific provisions regarding the monitoring, reporting, etc. of individuals of this type.

Rufus L. Edmisten Attorney General

William F. O’Connell Special Deputy Attorney General