Temp. Custody of Respondant by Out-Patient Facility Pending Commitment

Subject:

Requested By: R. J. Bickel Assistant Administrator for Administration Division of Mental Health and Mental Retardation Services

Question: Can a mental health facility without an in-patient capability legally accept a patient for temporary custody, observation and treatment prior to his involuntary commitment hearing in District Court as required by G.S. 122-58.7?

Conclusion: Yes, if that facility can meet the needs for control, safety, care and treatment of the individual patient involved.

G.S. 122-58.7 provides for a hearing to determine if a respondent should be involuntarily commited within ten days of the date that he is taken into custody. Initially, when an individual has been taken into custody, the respondent is taken before an evaluating physician who determines if he meets the standards for involuntary commitment. If the evaluating physician determines that the respondent does meet the standards for involuntary commitment, then the law enforcement officer is required to take the respondent to ". . . a community mental health facility or public or private facility designed or licensed by the Department of Human Resources for temporary custody, observation, and treatment of mentally ill or inebriate persons pending a District Court hearing." (G.S. 122-58.4(c))

Upon arrival at that facility, the respondent must then be examined by a second qualified physician for a determination of whether he meets the standards for involuntary commitment. If this physician finds that the respondent does meet the standards, ". . . he shall hold the respondent at the facility pending the District Court hearing." (G.S. 122-58.6(a))

The situation described in the question posed is quite different from that wherein either of the two physicians decides that the respondent does not meet the standards for involuntary commitment – i.e., in those situations the first physician may release the individual and the proceedings will terminate (G.S. 122-58.4(c)), and the second physician may release the respondent without any further treatment but with the proviso that he appear for his hearing (G.S. 122-58.6(a)).

From the description of the facility under discussion, it is obvious that it is not capable of accepting a patient in a twenty-four hour a day in-patient status. Thus, the answer to the question really turns on the interpretation of the words "custody, observation and treatment" (G.S.

122-58.4) and "hold" (G.S.122-58.6). In so interpreting this language, the following expressed intention of the General Assembly must be considered:

". . . It is further the policy of the State that each treatment facility shall insure to each patient the right to live as normally as possible while receiving care and treatment." (G.S. 122-55.1)

Further, the General Assembly has specifically empowered the trial judge at the time of the commitment hearing to commit the respondent to either in-patient or out-patient treatment. (G.S. 122-58.8(b)). Additionally, in interpreting the statutory provisions, it is very important to recognize that it is presently generally accepted that an individual who is involuntarily detained or committed as a mental patient has a constitutional entitlement to treatment in the least restrictive setting available, consistent with legitimate control, safety, care and treatment objectives.

The term "custody" would seem to have different meanings as applicable to different settings e.g., a quite different situation is contemplated when referring to the imprisonment of a convicted prisoner from that involved in the custody of children. As affecting the detention involved of a mental patient prior to his hearing, the fulfillment of the requirement for custody would seem to be met if conditions are imposed which significantly confine or restrain the freedom or liberty of the individual if those measures are appropriate in that particular situation. Compare Jones v. Cunningham, 371 U.S. 236 (1963); Calley v. Callaway, C.A.Ga., 519 Fed. 2d 184 (1975).

G.S. 122-58.6 (c) authorizes the qualified physician attending the respondent to administer reasonable and appropriate medication and treatment that is consistent with accepted medical standards. It would seem that, in a situation where out-patient treatment, probably including medications, would suffice to meet the needs for control, safety, care and treatment under accepted medical standards, then the receipt of a respondent at a facility capable of rendering these services would be permissible.

As with the situations wherein the District Court judge at the commitment hearing directs out-patient treatment rather than in-patient treatment, it is perhaps conjectural exactly what percentage of respondents who meet the standard of "being imminently dangerous" can be satisfactorily handled as out-patients at such early stages of treatment. However, the determination of appropriateness of this mode of custody must be made on an ad hoc basis. It might also be noted that the delineation of facilities capable of being utilized as pre-hearing treatment facilities and the degree of services they are capable of rendering is properly a matter included in the local plans required by G.S. 122-58.16.

Rufus L. Edmisten Attorney General

William F. O’Connell Special Deputy Attorney General