October 20, 1978
Subject:
Mental Health; Involuntary Commitment; Transfer of a Respondent to a Private Hospital
Requested By:
Honorable James E. Lanning District Court Judge 26th Judicial District
Question:
In a situation wherein a District Court Judge has involuntarily committed a respondent to a State Hospital under the provisions of Article 5A, Chapter 122, is it necessary to obtain an additional order from the Court in order to permit later transfer of the respondent to a private hospital?
Conclusion:
No, the respondent may be transferred by order of the Department of Human Resources pursuant to G.S. 122-80.
G.S. 122-58.8 provides that, upon determination that involuntary commitment is warranted, the District Court may ". . . order treatment, inpatient or outpatient, for a period not in excess of 90 days, at a mental health facility, public or private, designated or licensed by the Department of Human Resources." Thus, in the initial order, commitment to a private hospital (if the respondent, his family, or representatives are amendable to bearing the cost of hospitalization) may be made if the Jude, in his discretion, feels such is appropriate.
After the original commitment, the provisions of G.S. 122-80, as follows, would appear to apply:
"Patients transferred from State hospital to private hospital — When it is deemed desirable that any patient of any State hospital be transferred to any licensed private hospital within the State, the Department of Human Resources may so order. A certified copy of the hospitalization order on file at the State hospital shall be sent to the private hospital which, together with the order of the Department of Human Resources, shall be sufficient warrant for holding the mentally ill or mentally retarded person, or inebriate by the officers of the private hospital. A certified copy of the order of transfer shall be filed with the clerk of superior court of the county from which such mentally ill or mentally retarded person, or inebriate was hospitalized. After such transfer the State hospital from which such patient was transferred shall be relieved of all future responsibility for the care and treatment of such patient."
Literal reading of this statute compels the conclusion that it was not the intent of the General Assembly to require that an additional court order be obtained in order to effect the transfer described in the question. To the contrary, the statute permits a determination of the appropriateness of the transfer to be made by the Department of Human Resources. Like other functions of that Department, the authority to take this action may be delegated to a subordinate agency of such Department. Of course, this action can only be taken if the patient, his family, or representatives are willing to pay the costs of the hospitalization and if the private hospital involved is capable and willing to accept the respondent.
Rufus L. Edmisten Attorney General
William F. O’Connell Special Deputy Attorney General