DATE: 20 December 1995
Subject: Attorney Access to Minors in State Hospitals and Attorney General Opinion
Requested by: C. Robin Britt, Sr., Secretary, Department of Human Resources
Question: Does a minor client who is receiving treatment or habilitation from a 24-hour facility, as that term is defined in G.S. § 122C-3(14)(g), have the right to choose at his or her own expense or the expense of his or her legally responsible person, an attorney of the minor client’s choice?
Conclusion: No. Except as otherwise provided by law, the legally responsible person is the only one who can choose an attorney for the minor client unless the minor is over the age of sixteen and emancipated.
You state in your request for an opinion that attorneys have met with minor clients at Dorothea Dix Hospital without the consent of the legally responsible person. Your question is whether this practice should be discontinued except where the legally responsible person has engaged the attorney or where an attorney has been appointed to represent the minor client in civil commitment hearings or other counsel has been appointed.
The legislative history of the patient rights statutes relating to 24-hour facilities reveals that a new section was added to the General Statutes in 1973 to deal specifically with the rights of minor clients. One of the provisions of this 1973 statute provides that a minor client has the right to "communicate or consult with legal counsel and private mental health or mental retardation specialists of his or his legal custodian’s choice, at his own expense." G.S. § 122-55.14.
The language of this statute was changed in 1985 to read as follows: "Each minor client who is receiving treatment or habilitation from a 24-hour facility has the right to: . . . (2) Contact and consult with, at his own expense or that of his legally responsible person and at no cost to the facility, legal counsel . . . of his or his legally responsible person’s choice . . . ." G.S. § 122C62(c)(2). Legally responsible person, when applied to a minor, is defined as "a parent, guardian, a person standing in loco parentis, or a legal custodian other than a parent who has been granted specific authority by law or in a custody order to consent for medical care, including psychiatric treatment." G.S. § 122C-3(20).
The same year the General Assembly also added a new provision, codified at G.S. § 122C-4, which provides that "[e]xcept as otherwise provided by law, whenever in this Chapter the phrase `client or his legally responsible person’ is used, and the client is a minor or an incompetent adult, the duty or right involved shall be exercised not by the client, but by the legally responsible person." Thus, the language regarding minor clients’ access to attorneys was changed in the very same year that the new provision was added regarding the use of the phrase "legally responsible person."
It is always presumed that the General Assembly acted with care and deliberation and with full knowledge of prior and existing law. State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970). It is clear that by amending the language of the minor clients’ rights provision to include the words "or his legally responsible person" in the year that the new provision regarding the proper interpretation of that phrase was added to the law, the General Assembly intended that G.S. § 122C-4 would apply to the minor client rights section on attorney consultations.
This interpretation is further strengthened by the addition in 1995 of the provision entitled "Confidential client information sharing clarified," now codified at G.S. § 122C-53(i). That subsection formerly read "[u]pon the request of a client, a facility shall disclose to an attorney confidential information relating to that client." It now reads "[u]pon the request of (i) a client who is an adult and who has not been adjudicated incompetent under Chapter 35A or former Chapters 33 or 35 of the General Statutes, or (ii) the legally responsible person for any other client, a facility shall disclose to an attorney confidential information relating to that client." The General Assembly again reiterated the substantive distinction between a competent adult patient and a minor patient.
The General Assembly has long recognized the special status of minors and the need for parents to exercise control over minors. For example, G.S. § 110-44.1 proclaims that "[n]otwithstanding any other provision of law, any child under 18 years of age, except as provided in G.S. § 110
44.2 and 110-44.4, shall be subject to the supervision and control of his parents." Even in the Mental Health, Developmental Disabilities, and Substance Abuse Act itself, there is a statement emphasizing minors’ lack of judgment: "In view of the physical, emotional, and intellectual immaturity of the minor, the 24-hour facility shall provide appropriate structure, supervision and control consistent with the rights given to the minor pursuant to this Article." G.S. § 122C-62(c). The interpretation of minor clients’ right to attorney consultation only with the consent of the legally responsible person is consistent with these basic principles.
The right of parents to control their children is also found enunciated in the common law: "As a general rule in this State, parents have the natural and legal right to the custody, companionship, control, and bringing up of their infant children, and this right may not be lightly interfered with by action of the courts." Tucker v. Tucker, 288 N.C. 81, 87, 216 S.E.2d 1 (1975) (citations omitted). The parental right to control children may be interfered with only "for substantial and sufficient reasons, and is subject to judicial control when the interest and welfare of the children clearly require it." Id. The United States Supreme Court has also come to the same conclusion in holding that parents have a fundamental liberty interest "in the care, custody, and management of their child." Santosky v. Kramer, 455 U.S. 745, 753, 71 L.Ed.2d 599, 102 S.Ct. 1388 (1982).
While the North Carolina Administrative Code states that "all clients have the right to contact and consult with legal counsel of their choice according to the provisions of G.S. 122C-62(a)(2) and 122C-62(c)(2)", 10 NCAC 14H.0203, the terms of the statute referenced and as interpreted above controls. While this rule does indicate that the right to legal counsel must be in accordance with the statute, the rule should be changed for clarity.
Given that a minor cannot obtain legal representation without the consent of the legally responsible person, the question may be posed whether the rights of the child can be adequately protected. The answer to that question is yes. First, if the legally responsible person neglects the needs of the minor, including possible legal needs, the Department of Social Services can conduct an investigation of the legally responsible person pursuant to G.S. § 7A-542 et seq. The guardian ad litem program can provide additional support for abused, neglected, or dependent juveniles, including legal support. G.S. § 71-490 et seq. Additionally, a minor receives representation for the commitment proceedings by virtue of G.S. § 122C-224.1 and 122C-270. Therefore, a minor patient’s right to contest continued confinement in the 24-hour facility is fully protected, even if the legally responsible person wants the minor to remain in the facility.
For complaints about the conditions of treatment in a 24-hour facility, the General Assembly specifically designated the Governor’s Advocacy Council for Persons with Disabilities to perform such a function. G.S. § 143B-403.1. The portion of the minor patient’s rights statute which refers to the legally responsible person in the context of choice of legal counsel provides that the minor can "[c]ontact and consult with a client advocate, if there is a client advocate." There is no inclusion of the legally responsible person in this statute as is found in the statute dealing with minor patients and attorney consultations. The General Assembly was clear in making such a distinction between contact with an advocate and representation by an attorney. Finally, a minor over the age of sixteen can be emancipated if he or she meets statutory requirements. G.S. § 7A717 et seq. If emancipated, the minor patient would be entitled to seek legal representation as a competent adult patient would.
Michael F. Easley Attorney General
Ann Reed
Senior Deputy Attorney General
Kathleen U. Baldwin
Assistant Attorney General