Notification Required or Authorized as to Escaped Mentally Ill Patient

Subject:

Requested By: R. J. Bickel Deputy Director for Administration Division of Mental Health Services

Question: (1)

Should the notification required by G.S. 122-27 be given to the sheriff and clerk of court in situations involving a patient who has been voluntarily admitted to a North Carolina treatment facility when:

(a)

the patient is an adult?

(b)

the patient is a minor?

(2)

Is it a breach of confidentiality to notify the nearest of kin of the escape of a voluntary patient when:

(a)

the patient has previously given consent to furnish information to his family?

(b)

the patient has not previously given consent to furnish information to his family?

Conclusions: (1)

The notification described:

(a)

is not statutorily required in the case of an adult although it may and should be given in an appropriate situation.

(b)

should be given in situations involving minors if inpatient treatment has been ordered by a district court judge.

(2)

It is not a breach of confidentiality to notify the next of kin of the escape of a voluntary patient regardless of whether the patient has previously given consent to furnish information to his family.

G.S. 122-27 requires the administrator of a treatment facility operated by the State of North Carolina to immediately notify the sheriff and clerk of court of the county from which a patient was "committed" when such patient escapes. There is no statutory provision specifically requiring this type of notification in the case of individuals who have been voluntarily admitted to these treatment facilities. This Office has previously examined the situation involving involuntary return of an escapee from a North Carolina treatment facility when such person was originally voluntarily admitted to the facility. Our conclusion was that there is no absolute requirement that his return be requested. Inasmuch as a voluntary patient could be held for up to seventy-two hours despite his request for release, however, we concluded that his return could be requested if such is practical and desirable under the circumstances such as a need for instituting involuntary commitment proceedings on an individual who is dangerous to himself or others. See 44 N.C.A.G. 52 (1974), implicitly overruling 41 N.C.A.G. 900 (1972).

In the last paragraph of the 1974 opinion, though, there is language indicating that, in the case of a minor, the parent, etc., should be the determiner as to whether an escapee should be returned. Subsequent to that opinion the North Carolina General Assembly enacted G.S. 122-56.7. This statute permits a parent, etc., to cause a child to be voluntarily admitted into a North Carolina treatment facility. This new statute provides for a subsequent hearing within ten days in order to determine whether the minor should be retained in the facility, with the proceedings being held in accordance with the involuntary commitment statutes. Thus, once the district court judge has issued an order for inpatient treatment, that order is controlling on the subject and the wishes of the parent, guardian or person standing in loco parentis are no longer controlling. See 45

N.C.A.G. 25 (1975). As a result, in this situation, the reporting requirements of G.S. 122-27 should be met.

The North Carolina "Patients’ Bill of Rights" recognizes the entitlement of residents in treatment facilities to privacy (G.S. 122-55.1) and protects them against unauthorized disclosure of information acquired during treatment (G.S. 122-8.1). With respect to the confidentiality aspect, though, no prohibition is found on reporting the unauthorized escape of a patient to his next of kin. Significant as to legislative thinking the "Bill of Rights" requires written notice be given to a patient’s next of kin or guardian in case of an ordinary transfer of the patient to another facility. See G.S. 122-55.6.

Realistically, it is not at all uncommon for an individual to meet the requirements for involuntary commitment — i.e., be mentally ill and dangerous to himself or others — but yet be voluntarily admitted for various reasons seemingly beneficial to the patient. In many of these situations, failure to advise the next of kin who might be in the best position to locate the escapee or to shed light upon his whereabouts could very well lead to unfortunate and perhaps tragic delays in locating him. Such delays could well result in endangering the escapee’s life or the life or safety of other members of the general public. Recent decisions in both the State and Federal courts have tended to recognize the possibility of the liability of responsible mental health professionals for failure to take precautionary measures — including warnings — relative to dangerous mentally ill patients who are at large. All of these factors should be carefully considered in each case of an escapee in determining the appropriateness of notification to the next of kin of the facts that he is no longer in the facility and that he is at large. It would seem that failure to so notify the next of kin would be the exception rather than the rule.

Rufus L. Edmisten Attorney General

William F. O’Connell Special Deputy Attorney General