North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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August 22, 1977

Subject:

Mental Health; Courts; Involuntary Commitment to Private Hospitals

Requested By:

Mr. Ben Sauber Director of Advocate Program Dorothea Dix Hospital

Question:

May a district court judge acting under Article 5A, Chapter 122, involuntary commit an individual to a private hospital for the mentally ill?

Conclusion:

Yes, if that hospital has been designated or licensed by the Department of Human Resources.

On February 15, 1974, this Office responded to a similar question and arrived at a contrary conclusion. See 43 N.C.A.G. 342 (1974). However, Chapter 1408, 1973 Session Laws (Second Session), ratified on April 13, 1974, effective sixty days thereafter, was a complete rewriting of the involuntary commitment statutes (Article 5A, Chapter 122). Additionally, contains further clarifying language on this subject.

As a result, the present G.s. 122-58.8(b), effective July 1, 1977, provides as follows:

"(b) If the court finds by clear, cogent, and convincing evidence that the respondent is mentally ill or inebriate, and is imminently dangerous to himself or others, it 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. Treatment at a private facility shall be at the expense of the respondent to the extent that such charges are not disposed of by contract between the county and the private facility."

This statute in its present form makes it very clear that direct commitment to a property licensed or designated private hospital is permissible and the prior conclusion in the 1974 opinion should be disregarded.

It is noted that Article 10, Chapter 122 still contains sections dealing with the placemtnt of persons in private hospitals for the mentally disordered. In view of the specific language in the present Article 5A, it would appear that this later enacted statute would be controlling of the area of involuntary commitment. Since there is a direct conflict between Article 5A and G.S. 122-75,

G.S. 122-77, G.S. 122-78, and G.S. 122-79 (all last amended in 1963), it may safely be said that Article 5A supersedes these statutes.

Further, involuntary placement of individuals in these private hospitals in accordance with the proceedings described in these four statutes contained in Article 10 does not comport with constitutional requirements. See French v. Blackburn (DC MDNC), decided March 31, 1977. Therein, a three judge federal court analyzed the basic requirements for due process in involuntary commitment proceedings and characterized Article 5 as follows:

"The Court is of the general opinion that the North Carolina General Assembly has enacted an excellent legislative scheme which adequately protects the interests of all who may be involved in an involuntary commitment proceeding. We perceive no reason to hold the statutory provisions unconstitutional. There is no doubt that the liberty interest of a person subjected to such proceedings is great and is an interest which has long been protected and to which the state and this Court are obligated to give great deference. However, we are presented with the concept of "fundamental fairness." It is the opinion of this Court that the concept is fully realized by the statutory procedure involved. There are two humanitarian purposes of the involuntary commitment proceedings. Fundamentally, the state is attempting to temporarily withdraw from society those persons whose mental state is such that their presence may pose a danger to society or to themselves. Secondly, the state is providing treatment to those individuals who may not otherwise have the wisdom or the wherewithal to seek it themselves. We are, therefore, examining a hybrid proceeding which although (sic) involves a deprivation of liberty, the very purpose of that deprivation is not solely to protect society but also has as a purpose the protection, treatment, and aid of an individual who cannot or will not protect himself. We find that in balancing these interests, the North Carolina statutes for involuntary commitment strike a fair and equitable balance and do not offend the constitutional standards of due process of the law."

These comments certainly could not be made regarding the involuntary commitment proceedures prescribed in Article 10 of Chapter 122.

Rufus L. Edmisten Attorney General

William F. O'Connell Special Deputy Attorney General