Forensic Services

Table of Contents

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Capacity to Proceed Evaluations

Legal Standard

Sections 15A-1001 through 15A-1008 of the North Carolina General Statutes contain the basic standards and procedures for adult criminal defendants whose mental capacity to proceed is questioned. § 15A-1001 indicates:

No person may be tried, convicted, sentenced, or punished for a crime when by reason of     mental illness or defect he is unable to understand the nature and object of the proceedings against him, to comprehend his own situation in reference to the proceedings, or to assist in his defense in a rational or reasonable manner.

These provisions deal with the three main phases of a capacity case: the mental examination; the hearing to determine capacity; and proceedings after a determination of incapacity. 

Proceedings

The process of determining a defendant's capacity to proceed begins when the question of capacity is raised by the defendant (defense), court, or prosecutor. The question can be raised at any time and applies to all phases of a criminal case. The existence of a mental illness or defect alone is not sufficient to determine that a defendant is incapable. The condition must impair the individual’s ability to perform at least one of the functions described in the standard. The defendant has the burden of proof when the question of capacity has been raised.

Obtaining an evaluation of capacity to proceed can be accomplished in one of three ways: 1) defense may file an ex parte motion to fund their own expert to conduct an evaluation; 2) a motion can be filed to request the court to request a specific expert; or 3) a motion can be filed to request an evaluation by a Local Examiner or state facility (Central Regional Hospital in Butner). Misdemeanor and some felony cases are evaluated by Local Examiners while felony cases are evaluated by the Pre-Trial Evaluation Services staff at Central Regional Hospital.

After completion of the forensic evaluation and the submission of a forensic report, a capacity hearing is held for the court to determine capacity to proceed. In the event incapacity is contested an additional forensic evaluation may be ordered. When it is determined that the defendant is incapable of proceeding, 15A-1002 allows for involuntary commitment to an inpatient psychiatric hospital for treatment and capacity restoration. In counties where capacity restoration is available in the county detention center or by an outpatient community provider, when indicated these programs may provide an alternative to inpatient involuntary commitment.

At the completion of capacity restoration, a forensic report is published to the court, defense, and prosecution, offering an expert opinion of the outcome of the service.  The finding that the defendant has regained capacity to proceed or is non-restorable is provided, supported by the progress, or lack thereof, in the program.  A hearing is then scheduled to determine the defendant’s current capacity or non-restorable finding. When the individual has gained capacity to proceed the criminal case moves forward.

When capacity restoration is completed and the defendant is opined to be non-restorable, the court may dismiss the charges under 15A-1008 if:

1. It appears to the court’s satisfaction that the defendant will not gain the capacity to proceed;
2. The defendant has been deprived of his or her liberty for a period of time equal to or greater than the maximum permissible period of confinement for the alleged offense; or
3. Five years have expired in the case of a misdemeanor, or ten years have expired in the case of a felony, calculated from the date of the determination of incapacity to proceed.

For further information and details of the incapacity to proceed procedures see the North Carolina Defenders Manual, Chapter 2 and North Carolina General Statutes 15A-1001 through 15A-1008.

Examinations

Local Certified Forensic Evaluations

Training requirements and certification.

When the capacity of the defendant is questioned, the court must hold a hearing to determine the defendant's capacity to proceed. Courts almost always order a capacity to proceed examination when the question is raised, but they are not required to do so. If an examination is ordered, the hearing is held after the examination. The court 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. The court may call any appointed expert to testify at the hearing.

Title 10A of the North Carolina Administrative Code (NCAC), Sections 27G .6702 and 27H .0201 through .0207, includes the qualifications and training required for professionals to conduct capacity to proceed evaluations. To be qualified as a Local Certified Forensic Evaluator (LCFE), a licensed mental health clinician must be employed by (or contracting with) a Local Management Entity-Managed Care Organization (LME-MCO) and complete initial and annual training. The initial six-hour training and four hours of required annual training is provided by staff on the Pretrial Unit at Central Regional Hospital (CRH). The training focuses on a number of legal and clinical topics, such as current laws and practices, procedures for conducting interviews, and report writing. These local forensic evaluations can be conducted when the defendant is in custody or while out on bond in the community. The evaluations are designed to be “screenings” that identify those defendants who are clearly capable to proceed.

If the LCFE is unable to determine whether the defendant is capable to proceed, a recommendation is made that further evaluation be conducted by a forensic evaluator at CRH. The court may also order a “second opinion” at CRH, regardless of the finding by the LCFE. Defendants charged with misdemeanors and felonies can be evaluated by LCFE’s. However, the court may order the defendant be evaluated at CRH when charged with a felony, if it determines examination at CRH would be “more appropriate to determine the defendant’s capacity.”

Quality Improvement Program.

Beginning January 1, 2024, the North Carolina Department of Health and Human Services (DHHS) implemented a Quality Improvement Program. This program is designed to assist LCFE’s improve their clinical and forensic practice through report reviews and consultation.  Forensic reports are periodically reviewed by DHHS staff and affiliates, and constructive critiques and feedback are provided to evaluators. LCFE’s who need extra assistance are also offered free consultation by forensic experts affiliated with DHHS.

List of Local Certified Forensic Evaluators.

Download a list of the Local Certified Forensic Evaluators (Excel) throughout the state of North Carolina.

Central Regional Hospital (CRH) Evaluations

The Forensic Services Unit (FSU) at Central Regional Hospital is the only facility that conducts capacity to proceed and other pretrial evaluations (e.g., Not Guilty by Reason of Insanity). CRH conducts approximately 900 forensic evaluations per year (note: an additional 1300 are completed by local certified forensic evaluators), and more than 90% of these evaluations are to assess defendants’ capacity to proceed to trial. All evaluations are conducted by licensed doctoral level psychologists and psychiatrists with considerable forensic experience. Most of these evaluations are done on an “outpatient” basis, meaning that the person is evaluated without being admitted to CRH. The defendant may be transported to CRH for the outpatient evaluation by sheriff’s deputies if in custody, or by self/family if on bond. Outpatient evaluations may also take place in county jails via telehealth (see section below titled, “Use of Telehealth”). Sometimes, a defendant may require more intensive observation and evaluation services and will therefore undergo an inpatient evaluation, following a court’s order, where they will spend several days or weeks inpatient at CRH. Adult defendants undergoing inpatient evaluations will be admitted to the Pre-Trial Unit of the FSU of CRH and defendants under 18 years old will be admitted to the Child and Adolescent Unit of CRH.

Use of Telehealth.

In the wake of the unprecedented challenges posed by the COVID-19 pandemic, in 2020, Central Regional Hospital (CRH) started conducting court-ordered forensic evaluations via videoconferencing platforms, consistent with national trends on telehealth assessments. This has proven to be effective because these video conferenced assessments typically allow sufficient information to be gained to answer the court’s questions while at the same time helping prevent the spread of COVID-19 into or out of CRH or local jails. Moreover, the use of telehealth evaluations has been beneficial to the counties because it allows the counties to avoid the security risks that arise whenever a defendant is transported out of the jail, and the use of telehealth imposes fewer manpower and resource demands upon the local sheriff’s departments. In light of these secondary benefits, even as the pandemic has been waning, CRH has continued to make extensive use of telehealth when conducting evaluations, with it currently comprising approximately 85% of the assessments performed. The decision whether to conduct an evaluation via telehealth or face-to-face is typically left to the discretion of the evaluator, based on that clinician’s review of the circumstances of the case and the relevant collateral information available. For defendants who are in custody, if an evaluator decides to use telehealth for the interview, arrangements to schedule it are made with the county jail; for those who are not in custody, the hospital will try to make arrangements with the defense attorney. To help protect the defendant’s rights, unless the court orders otherwise (very rare), the interviews are not recorded. If an evaluator determines after a video conferenced interview that he or she was not able to gain sufficient information via telehealth to answer the court’s questions, the evaluator may schedule a follow-up interview, either via telehealth or in-person.

Administrative Forms

The Administrative Office of the Courts (AOC) manages the forms used by courts to order capacity evaluations and restoration services. Forms frequently cited in the chapter include:

1. AOC-CR-207b “Motion and Order Appointing Local Certified Forensic Evaluator” (For offenses committed on or after Dec. 1, 2013);
2. AOC-CR-208a “Motion and Order Committing Defendant to Central Regional Hospital-Butner Campus for Examination on Capacity to Proceed” (For offenses committed on or before Nov. 30, 2013);
3. AOC-CR -208b “Motion and Order Committing Defendant to Central Regional Hospital-Butner Campus for Examination on Capacity to Proceed” (For offenses committed on or after Dec. 1, 2013); and
4. AOC-CR-304b “Involuntary Commitment Custody Order Defendant Found Incapable to Proceed” (For offenses committed on or after Dec. 1, 2013)
5. AOC-G309Application and Order for Defense Expert Witness Funding in Non-Capital Criminal and Non-Criminal Cases at the trial level.

Incapable to Proceed (ITP) and Capacity Restoration (CR)

What is Capacity Restoration?

When a criminal defendant is declared by the court to be Incapable to Proceed (ITP), the court must determine whether the defendant meets the criteria for involuntary commitment (IVC) to a State Psychiatric Hospital (SPH). If the individual meets the criteria for commitment and is placed in the custody of the hospital, the defendant must be examined to determine whether they are capable to proceed prior to being released from the facility. If the defendant is not involuntarily committed, the court may order any of the procedures or conditions provided in statute for bail, including placing the defendant “in the custody of a designated person or organization agreeing to supervise him.” (G.S. 15A-1004(b))

The statutes relevant to capacity to proceed (G.S. 15A 1001-1008) do not address what capacity restoration should entail or where it should take place, outside of an SPH. Broad guidance is provided by the Department of Health and Human Services in a 2013 Communications Bulletin, titled “Forensic Evaluator Guidelines”. This document indicates that “interventions shall address mental health difficulties as well as educational and/or cognitive deficits that are barriers to attaining capacity to proceed.” It goes on to mention that best practices include multi-modal interventions that are individually tailored, and may include psychotropic medications, psychoeducation that focuses on the charges and legal system, group and individual treatment, and peer support.

Capacity Restoration at State Psychiatric Hospitals

Capacity Restoration services are provided in each of North Carolina’s three State Psychiatric Hospitals (SPHs). In each facility, Incapable to Proceed (ITP) patients are either housed on a dedicated unit for forensic patients where most services are provided, or they reside on different units and meet in various locations throughout the day for treatment activities. This later model, referred to as the “treatment mall,” allows patients to participate in programming most relevant to their needs. For example, an ITP patient may participate in several different psychoeducational groups during each day, such as How the Legal System Works, Understanding Mental Illness, and Cognitive Rehabilitation.

While each ITP patient has an individualized treatment plan, typical interventions include group psychoeducation, psychiatric medication, individual psychotherapy, and social/recreational/rehabilitation activities. All three SPH’s use a common capacity restoration curriculum during group and one-on-one instruction. Called the revised “Florida CapKit,” this curriculum is based off of training resources published by Florida State Hospital. This material and workbook assist patients in learning about their legal rights, how the court process operates, how to make rational decisions, and how to work effectively with an attorney. Additional or alternate educational materials may be used depending on the needs of the patient.

Considerable effort is made to ensure each SPH has a positive treatment milieu, that fosters treatment engagement, collaborative learning, and peer support. While capacity restoration is a primary goal for ITP patients, emphasis is also placed on providing whole health care and preparing patients for reentry into their communities.

A capacity restoration program focuses on helping an individual achieve the three elements of capacity in order to be found Capable to Proceed. These three elements are: a factual understanding of the nature and object of the proceedings, comprehension of the patient’s situation in reference to the proceedings, and the ability to assist in their defense in a rational and reasonable manner. These programs stabilize a patient’s psychiatric symptoms so that they do not interfere with their capacity, as well as educate the patient about the North Carolina legal system and their rights so that they can advocate for themselves and make educated, rational decisions.

Capacity restoration programs consist of both psychoeducational groups and individual sessions geared toward helping patients have a better understanding of the North Carolina legal system and their own legal situation. A typical program consists of 30-45-minute group sessions Monday through Friday. Additionally, patients may receive one to two individual sessions per week to discuss their legal charges and to simulate being able to work with their attorney. Whenever possible, phone calls or visits between patients and their attorneys are facilitated.  Good communication with each attorney to gather accurate information regarding each patient’s charges, possible sentences, and evidence for the case is vital in helping the individual understand their own situation and to help them be able to assist in their own defense. This information is kept in a private and secure location. The information is only used in individual sessions to ensure the patient has an accurate and rational understanding of their legal situation.

In psychoeducational groups, patients learn the basic information about the legal system, including the roles of courtroom personnel, plea options, possible outcomes of court proceedings, and various court processes such as plea bargaining and the trial process. This covers the factual understanding of the legal system. Groups also use this factual information and apply it to hypothetical scenarios to help patients understand how the processes of the legal system work. Typically, two levels of psychoeducational groups are offered: an introductory group and one or more advanced groups. The introductory group covers the information more slowly and in simpler terms for those who do not learn as quickly, or who require more repetition to learn. The advanced groups move more quickly and focus more on abstract understanding of the legal system and understanding the more complex processes of the legal system.

In individual sessions, the patient and their therapist discuss the pending legal charges and information about how much time those charges can carry (in wide ranges, taken from the Felony and Misdemeanor Sentencing Charts for NC) and possible outcomes for those charges (e.g. active time vs probation). Individual sessions are also used to help the patient with the ability to weigh evidence and demonstrate rational and logical understanding. Hypothetical cases are used in these sessions, as well as discovery from the patient’s case when available.

When an ITP defendant has made sufficient progress toward capacity restoration and the treatment team believes they may have obtained capacity, the individual is referred to the forensic evaluation team. If the evaluator opines the defendant is current capable to proceed (or is non-restorable), a report detailing these findings is submitted to the court and a hearing is scheduled for the matter to be adjudicated. Alternatively, the defendant will be referred back for continued treatment if he or she is not yet capable to proceed, but there is reason to believe additional interventions will lead to capacity restoration.

Capacity Restoration Pilot Programs

The North Carolina Department of Health and Human Services (DHHS) is piloting new mental health programs to address the expanding needs of individuals adjudicated to Incapable to Proceed to Trial (ITP). Historically, Capacity Restoration (CR) services have only been provided in the three State Psychiatric Hospitals (SPH). There is a need in North Carolina to develop a system that provides forensic evaluations and CR in alternate settings, such as in detention centers and the community. The first CR program based in a detention center was established on December 7, 2022 at the Mecklenburg County Detention Center, and is operated by Wellpath Recovery Solutions, LLC. Called NC RISE (Restoring Individuals Safely and Effectively), the program aims to provide needed mental health and restoration services to ITP defendants awaiting trial. Two additional Detention Center Capacity Restoration Programs (DCCRP) are in development in Wake and Cumberland counties. Additionally, three Community Based Capacity Restoration Programs (CBCRP) were launched in July of 2023 in Mecklenburg, Wake, and Cumberland Counties. These pilot programs will allow for CR to be provided across all levels of care and settings.

Detention Center Capacity Restoration Programs (DCCRP)

NC RISE operates a 10-bed unit at the Mecklenburg County Detention Center for defendants deemed ITP by the courts. The program provides an array of services, including psychiatric care, individual and group counseling, substance abuse treatment, psychoeducation and targeted case management. It will allow clinical care to be provided in the most responsive setting, reduce unnecessary admissions to state psychiatric hospitals and provide greater access to treatment. It will also result in quicker resolution of criminal charges.

Admission Criteria:

Defendants housed at the Mecklenburg County Detention Center awaiting CR are considered for admission to NC RISE. Courts may also order defendants be evaluated for eligibility into the program. Those eligible participants will be able to obtain needed treatment and restoration services in a timely manner. Appropriate candidates include those who do not have an acute psychiatric illness, are behaviorally stable, and voluntarily accept treatment.

Benefits:

• Provide greater access to care for ITP defendants in detention.
• Reduce SPH wait times by providing care and restoration in the detention center.
• Begin CR more sooner so detention times are shorter, and cases are resolved more quickly.
• Conserve resources by limiting SPH care to those who need it.

Community-based Capacity Restoration Programs (CBCRP)

CBCRP’s make it possible for individuals to receive restoration in their home communities. There they can engage in needed programming without losing services, employment, housing, income and freedom. The focus is on providing a broader array of community-based resources that will include mental health assessment, psychiatric services, psychoeducation, case management, substance abuse treatment, and peer support geared at assisting individuals to regain capacity. The programs will allow for up to 15 participants at any one time and will include psychiatric care, individual and group counseling, substance abuse treatment, psychoeducation, and case management. Additionally, peer support specialists will be an integral part of the team and help keep participants engaged in treatment and restoration efforts.

Admission Criteria:

Defendants appropriate for CBCRP will be recommended by evaluators conducting the initial capacity to proceed assessments. Those with non-violent charges who are agreeable to treatment and capable of attending daily programming will be enrolled. As a condition of pretrial release, courts will order those individuals eligible for bond to participate in the program.

Benefits:

• Reduce the number ITP defendants in detention.
• Allow defendants to maintain their connections to the community.
• Reduce SPH wait times.
• Cost savings by limiting inpatient hospitalizations to those who need it.

The Role of Safekeeping in the Department of Adult Corrections

At times ITP defendants housed in local detention centers are unable to be safely managed in those facilities. Certain conditions may be present that require they receive mental health or medical care at an inpatient facility within the Department of Adult Corrections. Such conditions may include posing a serious escape risk, becoming violently aggressive or a danger to staff, or needing to be protected from other inmates. In these cases a Safekeeping order is sought, pursuant to General Statute 162-39. When admitted to “Safekeeping,” these ITP defendants are kept separate from the general inmate population. Once stabilized, they are transported back to their sending county of origin where they remain until provided capacity restoration services at the State Psychiatric Hospital or a community or detention-based pilot program.

Juvenile Capacity Evaluations and Restoration

Legal Standard and Proceedings

Per Session Law 2023-114 of the General Assembly of North Carolina, no juvenile may be transferred to superior court for trial as an adult when by “reason of mental disorder, intellectual disability, neurological disorder, traumatic or acquired brain injury, or developmental immaturity, the juvenile is unable to understand the nature and object of the proceedings against the juvenile, to comprehend the juvenile's own situation in reference to the proceedings, or to assist in the juvenile's own defense in a rational or reasonable manner.”

For any juvenile who is alleged to be delinquent and is less than 12 years of age, the court shall inquire of the prosecutor and the juvenile's attorney regarding the juvenile's capacity to proceed the first time the juvenile appears in court.

When the capacity of a juvenile to proceed is questioned, the court may appoint forensic evaluators qualified by the Department of Health and Human Services to conduct an evaluation. The report from that evaluation must be completed within 10 days from the completion of the evaluation if the juvenile is charged with a misdemeanor, and 30 days from completion of the evaluation if charged with a felony. For good cause the court may extend the time for the report to be submitted by 30 days, but extensions shall not total more than 120 days. If the juvenile is charged with an offense that would be a felony if committed by an adult, the court may order the juvenile to a State facility for observation and treatment for up to 60 days to determine if the juvenile is capable to proceed. If an evaluation is ordered, the court must hold a hearing to determine the juvenile’s capacity following receipt of the report. The defense and the State still maintain the right to retain their own expert.

The presiding district court judge  who orders a capacity evaluation must also order the release of relevant confidential information to the forensic evaluator, including the juvenile petition, orders for secure or nonsecure custody, the law enforcement incident report, the juvenile's delinquency history, detention records, any prior medical and mental health records of the juvenile, and any school records of the juvenile after providing the juvenile with reasonable notice and an opportunity to be heard and then determining that the information is relevant and necessary and unavailable from any other source.

No statement or disclosure made by the juvenile during the forensic evaluation regarding the juvenile's responsibility for a criminal act that can result either in an adjudication of delinquency or transfer of a matter to superior court for trial as an adult is admissible in any juvenile or criminal proceeding against the juvenile.

Juvenile Capacity Evaluations

Credentialed and court-appointed evaluators, as well as those privately retained, must consider the following as part of the forensic evaluation:

1. Whether the juvenile is capable to proceed, incapable to proceed, or incapable to proceed with an ability to attain capacity in the foreseeable future with remediation services.
2. The basis of the juvenile's incapacity, to include mental disorder, intellectual disability, neurological disorder, traumatic or acquired brain injury, or developmental immaturity.
3. The capacity of the juvenile to do any of the following:
   • Appreciate the allegations against the juvenile.
   • Appreciate the range and nature of allowable dispositions that may be imposed in the proceedings against the juvenile.
   • Understand the roles of the participants and the adversary nature of the legal process.
   • Disclose to counsel facts pertinent to the proceedings at issue.
   • Display appropriate courtroom behavior.
   • Testify regarding the relevant issues.
   • Make reasonable and rational decisions.
   • Assist in the juvenile's defense in a rational manner.
   • Any other factors that the forensic evaluator deems to be relevant.

The written forensic report must contain all of the following:

1. Identify the specific matters referred to the forensic evaluator by the juvenile court for evaluation.
2. Include notification to the juvenile of the nature, purpose, and anticipated use or uses of the examination and applicable limits of confidentiality.
3. Describe the procedures, techniques, and tests used in the forensic evaluation of the juvenile and the purposes of each.
4. Describe the considerations considered by the forensic evaluator.
5. State any clinical observations, findings, and opinions of the forensic evaluator on each issue referred to the forensic evaluator for evaluation by the court and specifically indicate any issues on which the forensic evaluator was unable to give an opinion.
6. Identify the sources of information used by the forensic evaluator and present the factual basis for any clinical observations, findings, and opinions of the forensic evaluator.
7. Address any other issues ordered by the court.

If the evaluator opines the juvenile is incapable to proceed, the forensic report must contain the following:

1. Any recommended treatment or education needed for the juvenile to attain capacity, if any.
2. The likelihood that the juvenile will attain capacity in the foreseeable future because of the recommended treatment or education.
3. An assessment of the probable duration of the treatment or education required to attain capacity.
4. If the forensic evaluator recommends treatment for the juvenile to attain capacity, a recommendation as to the least restrictive environment in which services can be provided to the juvenile.

Per Section 5.(b) Article 24 of Chapter 7B, a forensic evaluation is a “full examination by a forensic evaluator using evidence-based psychological tools to determine if a juvenile has the capacity to proceed. This evaluation shall consist of a review of all available prior mental health and educational records of the juvenile and IQ testing and may include other developmentally appropriate testing for juveniles deemed relevant by the forensic evaluator.”

Evaluator Credentialing Process

Introduction

Per Session Law 2023-114 of the General Assembly of North Carolina, the Department of Health and Human Services (DHHS) is tasked with designating and overseeing a credentialing body which will set and maintain the minimum standards to qualify professionals who are court-appointed to conduct forensic evaluations pursuant to G.S. 7B-2401.2. The credentialing body is made up of three mental health and legal experts appointed by the Statewide Director of Forensic Services at DHHS. The credentialing body reviews applications and determines whether a qualified professional has demonstrated and maintained knowledge and experience with age-appropriate and developmentally appropriate methods for evaluating juvenile functional capacities to proceed.

Per the statute, a forensic evaluation is defined as a full examination by a forensic evaluator using evidence-based psychological tools to determine if a juvenile has the capacity to proceed. The evaluation shall consist of a review of all available prior mental health and educational records of the juvenile and IQ testing and may include other developmentally appropriate testing for juveniles deemed relevant by the forensic evaluator.

Standards

The following standards are required in order to be credentialed by DHHS to conduct court-appointed forensic evaluations pursuant to G.S. 7B-2401.2:

1. The individual will be a mental health professional who holds an active and valid license in North Carolina to practice within their field; and
2. Has demonstrated experience conducting capacity to proceed evaluations (or “competency to stand trial” in other jurisdictions); and
3. Has demonstrated experience using psychological tools and tests that are developmentally appropriate for juveniles; and
4. Has demonstrated knowledge in child and adolescent development, behavioral health needs, and appropriate methods for evaluating juveniles.

Demonstration of Knowledge and Experience:

Those seeking to be credentialed by DHHS to conduct court-appointed forensic evaluations pursuant to G.S. 7B-2401.2 must submit all the following documents to DHHS:

1. Cover letter describing their experience using age-appropriate and developmentally appropriate methods and tests for evaluating juvenile functional capacities to proceed, and how they have maintained their knowledge of these methods;
2. Copy of North Carolina license verification;
3. Resume or curriculum vita;
4. A sample report of an evaluation of a child or adolescent the applicant has completed in the past 3 years. The report will preferably address a legal or forensic matter. However, the report can be related to any clinical matter and does not have to pertain to capacity to proceed. This report should be redacted and include no personally identifiable information about the individual.

Submit all documents via the Juvenile Evaluator Credentialing application.

The credentialing body meets monthly to review all submitted applications. The applicant will be notified of the credentialing body’s decision within 45 days of receipt of all application materials.

The credentialing body may request additional data from the applicant in order to reach its determination.

If approved, the applicant will be notified and provided a certificate which authorizes them to conduct court-appointed capacity to proceed evaluations for juveniles. The credentialing body will notify the applicant if the application materials are incomplete and may request the applicant submit additional information. A list of all credentialed evaluators will be published on the DHHS website.

If not approved, the applicant will be informed of the reason for the denial of certification. They may resubmit an application after 30 days from that decision. Subsequent applications must demonstrate how the applicant now meets the standards described above (e.g., additional supervision was received, Continuing Education was completed).

Revocation:

If the license of a credentialed professional has been suspended, revoked, or relinquished, their credential to conduct court-appointed capacity evaluations of juveniles shall be revoked. If and when their professional license is in good standing with their respective licensing board, they can re-apply for credentialing to conduct court-ordered juvenile capacity to proceed evaluations.

Juvenile Capacity Remediation and Juvenile Justice

When the court finds the juvenile incapable to proceed but substantially likely to attain capacity in the foreseeable future, the court may order remediation services. The remediation services shall be based on the recommendations from the forensic evaluation. Remediation services shall be provided in the least restrictive environment considering the best interests of the juvenile and the safety of the public. In addition, the court shall consider the following when determining where services may be rendered:

1. Whether there is probable cause to believe the allegations in the petition are true.
2. The nature of the incapacity.
3. The juvenile's age or developmental maturity.
4. The nature of the act alleged to have been committed and the seriousness of the offense.
5. The availability and appropriateness of programming in the juvenile's community.
6. Supervision needs and level of available community supervision or alternatives such as family members, custodians, guardians, and community-based programs.
7. Any prior treatment or interventions provided to the juvenile.
8. Any other relevant factors not previously specified.

If the court finds that all available less restrictive alternatives are inappropriate, it may enter an order in accordance with G.S. 7B-2401.5 for the juvenile to be assessed for an involuntary commitment pursuant to Chapter 122C of the General Statutes.

The court shall enforce time limitations on remediation services, which is based on the most serious underlying offense. This can range anywhere from 12 to 36 months from the time of the original finding of incapacity to proceed, or the maximum jurisdiction of the court as provided in G.S. 7B-1601, whichever occurs sooner (See 7B-2401.4).

The Division of Juvenile Justice is responsible for the provision of psychoeducation remediation programming and working with community partners to secure any additional services recommended in the forensic evaluation report. The remediation service provider shall provide reports to the court at least every 90 days and the court shall hold a hearing within 30 days of receipt of the remediation progress report. The court may consider any evidence, including hearsay evidence as defined in G.S. 8C-1, Rule 801, that the court finds to be relevant, reliable, and necessary to determine if remediation services should continue or reassessment of capacity is warranted. The juvenile and the juvenile's parent, guardian, or custodian has opportunity to present evidence, and they may advise the court concerning the remediation services. If the court determines that reassessment of capacity is warranted, the court shall order a new forensic evaluation. This forensic evaluation shall be performed by the original forensic evaluator when possible.

When the court finds that a juvenile is incapable to proceed and not likely to attain capacity in the foreseeable future, the court may conduct an additional hearing to determine whether there are reasonable grounds to believe the juvenile meets the criteria for involuntary commitment under Part 7 of Article 5 of Chapter 122C of the General Statutes. When the court finds that a juvenile is incapable to proceed and not likely to attain capacity in the foreseeable future, the court shall dismiss the petition. The prosecutor may voluntarily dismiss with leave any allegations stated in the petition prior to the termination of the jurisdiction of the court.

Not Guilty By Reason of Insanity (NGRI)

Adjudication and Legal Process

“Not guilty by reason of insanity (NGRI),” also known as the “insanity defense,” refers to a defense that a defendant can plead in a criminal trial. When a defendant pleads NGRI, they are admitting that they carried out the acts that they are accused of doing but asserting that, due to being mentally ill at the time of the offense, they cannot be held legally accountable for the crime(s). More specifically, defendants pleading NGRI are asserting that, due to their mental health disorder, at the time of the offense, they “did not understand the nature or quality or the wrongfulness of their acts.”

If a defendant is found NGRI, they cannot go to jail or prison or otherwise be punished because they are “not guilty” of the offenses. Instead, when a defendant is found NGRI, the judge will enter an order committing him/her to a state mental health facility for treatment. With rare exceptions, individuals found NGRI are committed to the Forensic Services Unit (FSU) of Central Regional Hospital (CRH) in Butner, North Carolina as per G.S. 15A-1321. From court, the NGRI patient will be transported to the FSU by law enforcement officers.

Patients who have been committed as NGRI will remain in the hospital until they can demonstrate they that 1) no longer have a mental illness; or 2) are no longer dangerous to others. All patients receive a hearing within 50 days of their commitment and are entitled to attorney representation at this hearing (G.S. 122C-268.1). If, at this hearing, the patient proves they are no longer mentally ill or are no longer dangerous to others, the court will order that the patient be released. However, if the patient has not proven that they have met these criteria, they will be recommitted for up to 90 days. If at this second hearing the patient has still not met these criteria, they may be recommitted for up to 180 days. At the end of this 180 days, another hearing is held. Commitment hearings are held annually thereafter until the patient is determined to no longer be mentally ill or dangerous to others.

North Carolina does not have statutory limits for the maximum length of commitment for NGRI acquittees. In other words, as long as a NGRI acquittee is found to be both mentally ill and dangerous, they can be hospitalized indefinitely.

Hospitalization and Treatment

The Forensic Services Unit (FSU) of CRH provides long-term stabilization preparation for community living for the majority of patients found NGRI in North Carolina (G.S. 15A-1321). The FSU has three patient care units: Forensic Maximum Security (FMAX), Forensic Medium Security (FMED), and Forensic Minimum Security (FMIN). These patient care units serve as the patients’ living environments. Only male patients are housed on FMAX, while FMED and FMIN are co-ed units. All male NGRI patients are initially housed on FMAX, and all female NGRI patients are initially housed of FMED. Patients will progress to lower-security units over time based on factors including but not limited to their participation and progress in programmed therapeutic activities, demonstration of safe and appropriate behavior, medication adherence, and bed availability.

All FSU patients are assigned a primary treatment team that includes a psychiatrist, psychologist, social worker, nurse, and psychosocial advisor. This treatment team will work together with the patient to determine the best course of treatment—including but not limited to psychiatric medications, individual therapy, and group psychotherapy—to help treat the patient’s psychiatric symptoms, reduce their risk factors for dangerousness, and prepare them for community living. Psychosocial rehabilitation programming is provided for all FSU patients at least five days a week.

Patients adjudicated NGRI are assigned one of five different levels of privileges based upon North Carolina G.S. C-62 and the level of individual responsibility of which the patient is clinically determined to be capable:

• Level 1 – Patients on this level are not allowed off the unit. Note that all forensic units include an on-unit courtyard for patients to access.
  • Level 2 – Patients on this level may have supervised privileges in most hospital treatment areas including the psychosocial treatment mall, employment (when appropriate), the gymnasium, etc.
  • Level 3 – Patients on this level may have on-campus supervised activities in all hospital treatment areas. They also have additional privileges that Level 2 patients do not. For example, they can order food from the hospital “Grill” and have additional opportunities for on-campus walks and time outdoors with staff.
  • Level 4 – Patients on this level may have independent on-campus passes/visits (e.g., may go for a walk on hospital grounds by themselves).
  • Level 5 – Patients on this level may have independent off campus passes/visits (e.g., may hold a job in the community without supervision). This privilege level is intended for patients who are attempting to make the transition back to the community. Patients who have earned Level 5 privileges are eligible to transfer to and reside on FMIN.

A court order is required for forensic patients to move to higher levels that involve going outside the secure area of the hospital without supervision, or leaving hospital grounds (i.e., Level 4 or 5). In other words, no NGRI patient may visit outside the custody of the facility for any reason unless expressly authorized by the court. Qualified professionals (e.g., psychiatrists) may grant or restrict privileges and/or passes allowed by court order based on the patient’s legal status, taking into consideration the patient’s risk of harm to his/herself or others, the length of time the patient has been hospitalized, any history of unauthorized absences/elopements, assaultive behavior, non-adherence with medication, and progress and participation in treatment.

All FSU units (FMAX, FMED, FMIN) have visiting hours to facilitate patients’ contact with family members and significant others that will enhance the patients’ treatment and care. All FSU (ITP and NGRI) patients are also able to send and receive mail, make and receive telephone calls, be out-of-doors daily, and have access to facilities and equipment for physical exercise at least several times a week. Additional information regarding the rights that all patients have can be found on the DHHS website: NC DHHS: Patient's/Resident's Rights.

Other Psycholegal Evaluations

Central Regional Hospital’s Forensic Services Unit (FSU) conducts over 900 forensic evaluations per year. More than 90% of these evaluations are to assess a defendant’s capacity to proceed to trial, and an additional 1300 capacity to proceed to trial evaluations are completed by local certified forensic evaluators each year. The FSU also conducts mental state at the time of the alleged offense evaluations, as well as, less commonly, violence risk assessments or evaluations regarding a defendant’s capacity to waive their Miranda rights or represent themselves. Other types of criminal forensic evaluations, such as evaluations to determine whether a defendant facing capital charges has an intellectual disability, evaluations for the purpose of mitigation, or sex offender risk assessments, may be done by forensic practitioners in private practice.

State Psychiatric Hospitals

Central Regional Hospital

Broughton Hospital

Cherry Hospital 

DHHS Criminal Justice Behavioral Health Initiatives

View the DHHS Criminal Justice Behavioral Health Initiatives to learn about DHHS’s involvement in supporting those criminal justice involved supports, programs, and initiatives.
 

Resources

News

Panel discusses 'the capacity crisis' facing many in NC jails (ncnewsline.com)

Part 9: How North Carolina hopes to cut the waits for state psychiatric hospital beds | WFAE 90.7 - Charlotte's NPR News Source

North Carolina State Leaders Hold Behavioral Health Roundtable | North Carolina Judicial Branch (nccourts.gov)

Recent Publications

Assessing Two Decades of Insanity Acquittee Release from the North Carolina Forensic Program | Journal of the American Academy of Psychiatry and the Law (jaapl.org)\

Training and Recruitment

Program Philosophy | UNC Forensic Psychiatry Program and Clinic

North Carolina Division of State (weebly.com)

Job Opportunities | Careers with the State of NC (governmentjobs.com)

Job Opportunities | Careers with the State of NC (governmentjobs.com)

Continuing Education

2023-Forensic-Psychiatry-ABCC-Article-List.pdf (abpn.org)

Other Resources

Behavioral Health and the State Courts | NCSC

MHTF_State_Courts_Leading_Change.pdf (ncsc.org)

Trend In Psychiatric Inpatient Capacity, United States and Each State, 1970 to 2018 (nasmhpd.org)

Forensic Directory

Department of Health and Human Services

Dr. Robert Cochrane, Statewide Director of Forensic Services, robert.cochrane@dhhs.nc.gov

Central Regional Hospital

Dr. Charles Vance, Clinical Director, Forensic Services Unit, charles.vance@dhhs.nc.gov

Broughton Hospital

Dr. David Bartholomew, Chief Psychiatrist-Forensics, david.bartholomew@dhhs.nc.gov

Cherry Hospital

Dr. Paul Kartheiser, Chief Medical Officer, paul.kartheiser@dhhs.nc.gov

Detention Center Capacity Restoration Programs

Mecklenburg County Detention Center (NC RISE): Dr. Anna Abate, Program Director, at aabate@recoverysolutions.us

Community Based Capacity Restoration Programs

Cumberland County (CommuniCare): Sarah Hallock, shallock@cccommunicare.org

Wake County (Elwyn Adult Behavioral Health Services): Dr. Ashley Nash, ashley.nash@elwyn.org

Mecklenburg County (Atrium Behavioral Health): Yolonda Tindal, caprestorationprogramreferral@atriumhealth.org

Frequently Asked Questions