GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

H	1 

HOUSE BILL 386

Short Title:  M.H. Pretrial Procedures/AB.	(Public)

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Sponsors: Representative Lemmond.

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Referred to:  Judiciary II.

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March 8, 1995

A BILL TO BE ENTITLED
AN ACT TO REQUIRE THAT A LOCAL FORENSIC EXAMINATION BE MADE OF A DEFENDANT WHOSE CAPACITY TO PROCEED TO TRIAL IS QUESTIONED BEFORE A STATE EVALUATION MAY BE ORDERED AND TO MODIFY THE AUTHORITY OF THE DIVISION OF MENTAL HEALTH, DEVELOPMENTAL DISABILITIES, AND SUBSTANCE ABUSE SERVICES TO RESTRICT THE RIGHTS OF CLIENTS AT THE PRETRIAL EVALUATION CENTER AT DOROTHEA DIX.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 15A-1002(b) reads as rewritten:
"(b)	When the capacity of the defendant to proceed is questioned, the court shall hold a hearing to determine the defendant's capacity to proceed. If an examination is ordered pursuant to subdivisions (1) or (2) below, the hearing shall be held after the examination. Reasonable notice shall be given to the defendant and prosecutor, and the State and the defendant may introduce evidence. The court:
(1)	May appoint one or more impartial medical experts, including forensic evaluators approved under rules of the Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services, to examine the defendant and return a written report describing the present state of the defendant's mental health; reports so prepared are admissible at the hearing and the court may call any expert so appointed to testify at the hearing; any expert so appointed may be called to testify at the hearing by the court at the request of either party; and
(2)	If an examination pursuant to subsection (b)(1) of this section has been completed, may order the defendant to a State facility for the mentally ill for observation and treatment for the period, not to exceed 60 days, necessary to determine the defendant's capacity to proceed; the sheriff shall return the defendant to the county when notified that the evaluation has been completed; the director of the facility shall direct his report on defendant's condition to the defense attorney and to the clerk of superior court, who shall bring it to the attention of the court; the report is admissible at the hearing.."
Sec. 2.  G.S. 122C-62 reads as rewritten:
"§ 122C-62.  Additional rights in 24-hour facilities.
(a)	In addition to the rights enumerated in G.S. 122C-51 through G.S. 122C-61, each adult client who is receiving treatment or habilitation in a 24-hour facility keeps the right to:
(1)	Send and receive sealed mail and have access to writing material, postage, and staff assistance when necessary;
(2)	Contact and consult with, at his own expense and at no cost to the facility, legal counsel, private physicians, and private mental health, developmental disabilities, or substance abuse professionals of his choice; and
(3)	Contact and consult with a client advocate if there is a client advocate.
The rights specified in this subsection may not be restricted by the facility and each adult client may exercise these rights at all reasonable times.
(b)	Except as provided in subsections (e) and (h) of this section, each adult client who is receiving treatment or habilitation in a 24-hour facility at all times keeps the right to:
(1)	Make and receive confidential telephone calls. All long distance calls shall be paid for by the client at the time of making the call or made collect to the receiving party;
(2)	Receive visitors between the hours of 8:00 a.m. and 9:00 p.m. for a period of at least six hours daily, two hours of which shall be after 6:00 p.m.; however visiting shall not take precedence over therapies;
(3)	Communicate and meet under appropriate supervision with individuals of his own choice upon the consent of the individuals;
(4)	Make visits outside the custody of the facility unless:
a.	Commitment proceedings were initiated as the result of the client's being charged with a violent crime, including a crime involving an assault with a deadly weapon, and the respondent was found not guilty by reason of insanity or incapable of proceeding;
b.	The client was voluntarily admitted or committed to the facility while under order of commitment to a correctional facility of the Department of Correction; or
c.	The client is being held to determine capacity to proceed pursuant to G.S. 15A-1002;
	A court order may expressly authorize visits otherwise prohibited by the existence of the conditions prescribed by this subdivision;
(5)	Be out of doors daily and have access to facilities and equipment for physical exercise several times a week;
(6)	Except as prohibited by law, keep and use personal clothing and possessions, unless the client is being held to determine capacity to proceed pursuant to G.S. 15A-1002;
(7)	Participate in religious worship;
(8)	Keep and spend a reasonable sum of his own money;
(9)	Retain a driver's license, unless otherwise prohibited by Chapter 20 of the General Statutes; and
(10)	Have access to individual storage space for his private use.
(c)	In addition to the rights enumerated in G.S. 122C-51 through G.S. 122C-57 and G.S. 122C-59 through G.S. 122C-61, each minor client who is receiving treatment or habilitation in a 24-hour facility has the right to have access to proper adult supervision and guidance. In recognization of the minor's status as a developing individual, the minor shall be provided opportunities to enable him to mature physically, emotionally, intellectually, socially, and vocationally. In view of the physical, emotional, and intellectual immaturity of the minor, the 24-hour facility shall provide appropriate structure, supervision and control consistent with the rights given to the minor pursuant to this Article. The facility shall also, where practical, make reasonable efforts to ensure that each minor client receives treatment apart and separate from adult clients unless the treatment needs of the minor client dictate otherwise.
Each minor client who is receiving treatment or habilitation from a 24-hour facility has the right to:
(1)	Communicate and consult with his parents or guardian or the agency or individual having legal custody of him;
(2)	Contact and consult with, at his own expense or that of his legally responsible person and at no cost to the facility, legal counsel, private physicians, private mental health, developmental disabilities, or substance abuse professionals, of his or his legally responsible person's choice; and
(3)	Contact and consult with a client advocate, if there is a client advocate.
The rights specified in this subsection may not be restricted by the facility and each minor client may exercise these rights at all reasonable times.
(d)	Except as provided in subsections (e) and (h) of this section, each minor client who is receiving treatment or habilitation in a 24-hour facility has the right to:
(1)	Make and receive telephone calls. All long distance calls shall be paid for by the client at the time of making the call or made collect to the receiving party;
(2)	Send and receive mail and have access to writing materials, postage, and staff assistance when necessary;
(3)	Under appropriate supervision, receive visitors between the hours of 8:00 a.m. and 9:00 p.m. for a period of at least six hours daily, two hours of which shall be after 6:00 p.m.; however visiting shall not take precedence over school or therapies;
(4)	Receive special education and vocational training in accordance with federal and State law;
(5)	Be out of doors daily and participate in play, recreation, and physical exercise on a regular basis in accordance with his needs;
(6)	Except as prohibited by law, keep and use personal clothing and possessions under appropriate supervision, unless the client is being held to determine capacity to proceed pursuant to G.S. 15A-1002;
(7)	Participate in religious worship;
(8)	Have access to individual storage space for the safekeeping of personal belongings;
(9)	Have access to and spend a reasonable sum of his own money; and
(10)	Retain a driver's license, unless otherwise prohibited by Chapter 20 of the General Statutes.
(e)	No right enumerated in subsections (b) or (d) of this section may be limited or restricted except by the qualified professional responsible for the formulation of the client's treatment or habilitation plan. A written statement shall be placed in the client's record that indicates the detailed reason for the restriction. The restriction shall be reasonable and related to the client's treatment or habilitation needs. A restriction is effective for a period not to exceed 30 days. An evaluation of each restriction shall be conducted by the qualified professional at least every seven days, at which time the restriction may be removed. Each evaluation of a restriction shall be documented in the client's record. Restrictions on rights may be renewed only by a written statement entered by the qualified professional in the client's record that states the reason for the renewal of the restriction. In the case of an adult client who has not been adjudicated incompetent, in each instance of an initial restriction or renewal of a restriction of rights, an individual designated by the client shall, upon the consent of the client, be notified of the restriction and of the reason for it. In the case of a minor client or an incompetent adult client, the legally responsible person shall be notified of each instance of an initial restriction or renewal of a restriction of rights and of the reason for it. Notification of the designated individual or legally responsible person shall be documented in writing in the client's record.
(f)	The Commission may adopt rules to implement subsection (e) of this section.
(g)	With regard to clients being held to determine capacity to proceed pursuant to G.S. 15A-1002 or clients in a facility for substance abuse, and notwithstanding the prior provisions of this section, the Commission may adopt rules restricting the rights set forth under (b)(2), (b)(3), and (d)(3) of this section if restrictions are necessary and reasonable in order to protect the health, safety, and welfare of the client involved or other clients.
(h)	The rights stated in subdivisions (b)(2), (b)(4), (b)(5), (b)(10), (d)(3), (d)(5) and (d)(8) may be modified in a general hospital by that hospital to be the same as for other patients in that hospital; provided that any restriction of a specific client's rights shall be done in accordance with the provisions of subsection (e) of this section."
Sec. 3.  This act becomes effective July 1, 1995.  Section 1 applies to cases pending on or after that date, and Section 2 applies to client rights on or after that date.