When Can They be Done and Are They Confidential? – North Carolina Criminal LawNorth Carolina Criminal Law

When Can They be Done and Are They Confidential? – North Carolina Criminal LawNorth Carolina Criminal Law

When Can They be Done and Are They Confidential? – North Carolina Criminal LawNorth Carolina Criminal Law

One of the unique features of the juvenile justice system is its statutory focus on identifying the needs of juveniles and resolving matters to provide “appropriate rehabilitative services to juveniles.” G.S. 7B-1500(2)b. In addition to protecting public safety, dispositions should include “an appropriate plan to meet the needs of the juvenile.” G.S. 7B-2500. The caselaw and statutes that govern one form of assessment in delinquency cases—the comprehensive clinical assessment (CCA)—have undergone rapid change in the last few years. Other assessments, such as assessment for problematic sexual behavior or trauma-focused assessments, may also be needed in certain cases. Questions abound regarding when assessments can occur and what confidentiality law applies to them. This new infographic provides a high-level overview of the law that addresses these questions.

When Can Assessments be Completed?

With Consent at Any Time

An assessment can be completed at any time a delinquency matter is pending if there is a valid consent to conduct that assessment. Generally, the parent, guardian, or custodian of the juvenile is the person who must consent. However, minors are permitted to give effective consent for a physician licensed in North Carolina to provide medical health services for the prevention, diagnosis, and treatment of

  • venereal disease and any other reportable communicable disease,
  • pregnancy,
  • abuse of controlled substances or alcohol, and
  • emotional disturbance. S. 90-21.5.

In addition, juvenile jurisdiction can extend beyond a juvenile’s 18th birthday in certain circumstances (including offenses committed at ages 16 and 17 as well as extended commitments for Class A – E felonies). Therefore, a person subject to juvenile jurisdiction might be age 18 or older. Once a juvenile turns 18, they become the person who provides consent for all of their medical care. They would then be the only person to consent to any assessment.

Pursuant to a Court Order after Adjudication

G.S. 7B-2502 provides both

  • the authority for the court to order an examination by a physician, psychiatrist, psychologist, or other qualified expert to determine the needs of the juvenile (G.S. 7B-2502(a)), and
  • a mandate for the court to order the Division of Juvenile Justice to make a referral for a CCA when 1) a juvenile has been adjudicated delinquent, 2) has a suspected mental illness, developmental disability, or intellectual disability, and 3) a CAA or its equivalent was not conducted within the 45 days before the adjudication hearing. G.S. 7B-2502(a2). You can find more detail about this mandate in a previous blog.

The CCA mandate provision clearly applies only following adjudication and prior to disposition. The broader discretionary authority to order examinations does not explicitly state that it applies only after adjudication. There is also no appellate case law that addresses this issue. However, the statutory authority is placed in Article 25 of Subchapter II of the Juvenile Code, titled “Dispositions.” The preceding Article 24 provides the procedure that applies to juvenile adjudication hearings. In addition, G.S. 7B-2502 is titled “Evaluation and treatment of undisciplined and delinquent juveniles.” This title suggests that the discretionary provision applies only after adjudication, when the juvenile is determined to be delinquent (or undisciplined). These factors lead me to believe that the discretionary authority of the court to order an evaluation contained in G.S. 7B-2502 applies only after adjudication. Others may disagree because the statutory language itself does not state that the court can only order an examination following an adjudication.

Are Assessments Confidential?

Generally, yes. Assessments usually include both mental health and substance use information, making them health records that are protected under the Health Insurance Portability and Accountability Act (HIPAA), 42 C.F.R. Part 2, and state laws.

Special Confidentiality Protections Before Adjudication

The Juvenile Code prohibits the use of information that a juvenile shares with the Juvenile Court Counselor (JCC) from being used against the juvenile as part of an adjudicatory hearing. G.S. 7B-2408 states that “no statement made by a juvenile to the juvenile court counselor during the preliminary inquiry and evaluation process shall be admissible prior to the dispositional hearing.” In addition, the JCC completes a statutorily required predisposition report on each juvenile whose case moves to adjudication. G.S. 7B-2413. That report must contain a risk and needs assessment, including, among other things, information on the psychiatric and psychological history of the juvenile. The report cannot be submitted to or considered by the court before the juvenile is adjudicated delinquent. G.S. 7B-2413.

Confidentiality that Attaches Throughout Pendency of the Case

Confidentiality of Mental Health Records

Because assessments include mental health information, state and federal confidentiality law that govern confidentiality of mental health records applies to them throughout the entire life of the juvenile case. This is true even when the court orders the assessment under the authority in G.S. 7B-2502. These provisions include that:

  • HIPAA prohibits disclosure of protected health records without a valid authorization or a court order. 45 CFR Parts 160, 164.
  • Mental health treatment records can only be released with a valid consent or court order. Consent for release of the record is required from the person who originally consented for the treatment. G.S. 122C-52.

Confidentiality of Substance Use Disorder Records

Assessments in delinquency cases often include information related to a juvenile’s current or previous substance use disorder. Any health records that identify the juvenile as having or having had a substance use disorder can only be released when there is a valid consent or court order. Consent is always required from the juvenile and is also required from the parent if the parent consented to the original treatment. 42 CFR Part 2.

Confidentiality of Division of Juvenile Justice Records (DJJ)

Records maintained by DJJ can only be released pursuant to a court order, except for release to the juvenile and the juvenile’s attorney, the juvenile’s parent, guardian custodian or their authorized representative, professionals at DJJ who are directly involved in the case, and JCCs. (G.S. 7B-3001).

Exception for Local Interagency Information Sharing

G.S. 7B-3100 requires the sharing of some information among certain local agencies when that information is related to a juvenile who is the respondent in a delinquency matter. The statute allows information to be shared only when a delinquency petition has been filed and as long as the juvenile is under the jurisdiction of the court. If one of the agencies designated by the statute or by a local administrative order requests the sharing of information, the statute mandates that the information is shared. However, the statute only allows information to be shared for the protection of the juvenile and others or to improve the educational opportunities of the juvenile.

Information shared pursuant to this statute remains confidential and does not become a public record. In addition, information sharing under this statute remains subject to federal law. The confidentiality provisions related to substance use disorder records contained in 42 C.F.R. Part 2 cannot be overcome by a state statute that authorizes information sharing. Therefore, any substance use disorder records related to the juvenile can still only be shared if there is a valid consent to or a court order allowing the sharing of that information. G.S. 7B-3100 does not provide legal authority for the sharing of substance use disorder information.

Why Does This Matter?

Legally, all of this matters because of the Juvenile Code’s focus on treatment in delinquency cases and the mandate in G.S. 7B-2502(a2) that requires the court to order DJJ to make a referral for a CCA in some cases. Beyond the legal requirements, the use of assessment may get to the root cause of behavior that leads some juveniles to become justice-involved in the first instance. The timing and use of assessments in these cases can become the key to targeting interventions in a manner most likely to support those juveniles in their recovery and in preventing their return to the legal system. It is my hope that this new infographic will help all stakeholders understand when and how assessments can occur and be shared throughout the life of a delinquency case.

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