10A NCAC 26D .1206. INVOLUNTARY REFERRALS AND TRANSFERS

(a)  Referrals and transfers to residential or inpatient units on an involuntary basis shall occur only when the attending clinician determines that:

(1)           a client requires treatment services not available at his current service delivery site; and

(2)           a transfer over his objections is required.

(b)  Non‑emergency involuntary referrals:

(1)           If, in the judgment of a qualified professional, the following conditions exist:

(A)          a diagnosable mental disorder; and

(B)          determination is made that outpatient services are not effective treatment for the client.

(2)           Then, the professional shall give the client a written notice of referral for transfer, and explain to the client his rights in accordance with Rule .1207 of this Section.

(3)           If the client does not voluntary consent to the referral and transfer, the following steps shall be taken:

(A)          the client shall be provided with the time, date and place of a hearing;

(B)          the Mental Health Program Director, or his designee, shall contact the hearing officer to arrange a hearing; and

(C)          a client advisor shall be appointed and a hearing conducted in accordance with the procedures specified in this Rule.

(c)  Emergency involuntary referrals:

(1)           Such referrals shall be implemented only:

(A)          when a client has a diagnosable mental disorder; and

(B)          either:

(i)            presents a substantial risk of harm to himself or others, as manifested by recent overt acts or expressed threats of violence; or

(ii)           is so unable to care for his own personal health and safety as to create a substantial risk of harm to himself; and

(C)          determination is made that outpatient services are not effective treatment for the client's condition.

(2)           Such referrals shall be made by the mental health staff, the unit physician, nurse, or officer in charge after consultation with the designated mental health staff of the receiving unit.

(3)           The officer in charge shall authorize a transfer only under the following conditions, and when, in his opinion:

(A)          the emergency referral criteria has been met; and

(B)          reasonable efforts have been made to contact the referring mental health professional and have failed.

(d)  A client who is transferred because he meets the criteria of an emergency will be afforded a hearing at the receiving unit within 10 days of admission.  This hearing will follow the same procedures as those outlined in this Rule.

(e)  Inmate advisors:

(1)           Each client referred for a hearing shall have an advisor appointed to assist him in preparing for the hearing.

(2)           Each area administrator or institution head shall be responsible for appointing advisors for all units within his jurisdiction.

(3)           Inmate advisors shall be free to advise the inmate, independently, and to act solely in his behalf; and shall not be subject to any harassment, discipline, or pressure in connection with such advice for the inmate.

(4)           Ex parte attempts to influence the decision of the hearing officer shall be prohibited.

(f)  Hearing officers:  The Chief of Mental Health Services shall recommend, and the Director of the Division of Prisons shall appoint sufficient numbers of persons to serve as hearing officers who shall:

(1)           be qualified professionals, neutral and independent;

(2)           have the authority to refuse to transfer an inmate when, in their judgment, such a transfer is not justified.

(3)           ensure and document that an inmate advisor has been assigned;

(4)           conduct a hearing that follows the procedures as specified in this Rule in a fair and impartial manner; and

(5)           determine from evidence presented whether the criteria for emergency or non‑emergency referrals has been met.

(g)  Hearing procedures:

(1)           The hearing shall be conducted no sooner than 48 hours from the time the inmate is given written notice that he is being considered for a referral to a residential or inpatient unit; however, the inmate has the right to waive the 48‑hour notice.

(2)           The hearing officer shall determine the time, place and site of the hearing, after considering the relevant factors.

(3)           The hearing officer shall consider all relevant and non‑repetitive evidence, justifying or disputing the involuntary transfer and that:

(A)          the inmate has a diagnosable mental disorder;

(B)          the inmate requires services that are not currently available on an outpatient basis; and

(C)          the unit to which the inmate is to be transferred is better able to provide the needed treatment/ habilitation services than is the currently assigned housing unit.

(4)           A copy of the referral form, as well as other relevant written documents, shall be entered as evidence.

(5)           All written documents or verbal information are to be considered confidential, in accordance with Department policy.

(6)           The inmate shall not have direct access to his client record; however, the inmate advisor may:

(A)          review the client's record presented at the hearing; and

(B)          consult with the inmate about its use at the hearing and any other matters which could be relevant at the hearing, including the questioning of all witnesses.

(7)           The inmate who is being considered for transfer, or his advisor, may question any witnesses for the State, including mental health or mental retardation professionals.

(8)           The inmate may also present witnesses in his own behalf with limitations which include that:

(A)          a reasonable number of witnesses will be allowed at the discretion of the Hearing Officer;

(B)          testimony may be received by conference telephone call if the hearing is conducted away from the inmate's assigned unit;

(C)          written statements may be entered in lieu of direct testimony; and

(D)          specific inmate witnesses may be excluded from direct testimony if a justifiable security risk, as determined by a unit superintendent, or designee, would occur were they brought to the hearing site.

(9)           The hearing officer shall:

(A)          document the results of the hearing, summarizing the evidence presented and the rationale for his decision;

(B)          communicate the results of the hearing to the inmate and staff; and

(C)          ensure that a copy of relevant documents are placed in the client record.

(10)         The decision to transfer involuntarily is valid throughout the duration of the stay at any residential or inpatient unit, with required 30‑day reviews of the need for continued treatment or habilitation.

(11)         An inmate may be transferred to another like unit without a rehearing; however, if he is discharged from residential or inpatient services, a rehearing is required prior to readmission to that level of service.

(12)         At the request of the inmate, his case shall be reviewed by a Hearing Officer within 90 days after the initial hearing, to determine whether the assignment to the residential or inpatient unit shall be extended or terminated.  Subsequent reviews thereafter shall take place each 180 days if requested by the inmate.

 

History Note:        Authority G.S. 148‑19(d);

Eff. January 4, 1994.