February 18, 2010
By William R. Forstner*
As part of the ongoing re-evaluation of mental health services provided to residents of North Carolina, the legislature has been working to improve the involuntary commitment (IVC) process. North Carolina statutes allow IVC of individuals with serious and potentially dangerous mental health and substance abuse issues. Since the IVC process requires examination by a physician or qualified psychologist, these patients are often evaluated in a hospital emergency department (ED). New session laws are aimed at addressing the recurring problems arising from substantial delays in the availability of inpatient psychiatric beds for patients in need of treatment. These waiting periods, which are often several days, tax limited hospital resources and delay necessary treatment. Recent changes have attempted to clarify procedures governing the substantial delays in psychiatric placement and to expand the methods by which the examination can occur.
Session Law 2009-340 addresses the delay in finding a bed in a twenty-four-hour psychiatric facility. It explicitly allows a patient to be "temporarily detained under appropriate supervision" when a psychiatric facility is not immediately available. This legislation explicitly permits detention at the first examination's site. Because many of the first examinations occur at a private hospital ED, which is bound by the Emergency Medical Treatment and Labor Act or EMTALA to examine, stabilize, or to appropriately transfer a patient with emergent psychiatric issues, this detention frequently must occur in the ED. "Appropriate supervision" is not defined but imposes some obligation on local law enforcement and potentially on hospitals to monitor and protect the patient from harming him/herself or others. The session law also clarifies the termination of the IVC process, specifically noting that if a physician or qualified psychologist determines the patient no longer meets IVC criteria, he or she should promptly terminate the proceedings. Finally, this law mandates expiration of the IVC process if an individual is not placed in a twenty-four-hour psychiatric facility within seven days. However, a new IVC process may be initiated immediately if the individual continues to satisfy criteria for IVC.
Session Law 2009-315 allows examination of IVC patients to be conducted by telemedicine. Telemedicine under the new law requires "two-way real-time interactive audio and video . . . when distance separates participants who are in different geographical locations." In order to use telemedicine, the examiner must conclude that his or her determinations would have been the same had he or she evaluated the individual in person. The explicit allowance of a telemedicine examination for an individual in the IVC process may broaden the permissible locations for examination--and thus for temporary detention--while awaiting placement in a psychiatric facility. Even with these reforms, hospitals continue to experience prolonged stays for many psychiatric patients and additional reforms will be necessary going forward.
*We would like to thank William R. Forstner, Esquire (Smith Moore Leatherwood, LLP, Raleigh, NC) for providing this email alert.