After a district court judge has involuntarily committed someone to a state mental hospital under Article 5A of Chapter 122, does the Department of Human Resources need a new court order to move the patient to a private hospital later, or can the Department transfer the patient on its own?

Plain-English summary

A district court judge asked whether a new court order was needed to transfer a person already committed to a North Carolina state hospital to a licensed private hospital. The 1978 AG answered no. G.S. 122-80 allowed the Department of Human Resources (DHR) to order the transfer.

The statute required a certified copy of the original hospitalization order to be sent to the private hospital. That copy, together with DHR's transfer order, was sufficient authority for the private hospital to hold the patient. A certified copy of the transfer order had to be filed with the clerk of superior court in the county from which the patient had been hospitalized. After transfer, the state hospital was relieved of further responsibility for care and treatment.

The AG stated a condition on taking this action: the patient, family, or representatives had to be willing to pay the private-hospital costs, and the private hospital had to be capable and willing to accept the patient. The AG also said DHR could delegate the transfer authority to a subordinate agency.

Currency note

This opinion was issued in 1978. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical context

G.S. 122-58.8 allowed the district court, on finding involuntary commitment warranted, to order up to 90 days of inpatient or outpatient treatment at a public or private mental health facility designated or licensed by DHR. The AG said the original order could place a patient in a private hospital if the judge found that appropriate and the respondent, family, or representatives were willing to bear the cost.

For a later state-to-private transfer, G.S. 122-80 provided an administrative route. The AG read its text to mean that DHR, without a second court order, could decide whether the transfer was appropriate. The AG expressly limited that action to a case where private-hospital costs would be paid by the patient or others named in the opinion and a capable private hospital was willing to accept the patient.

Common questions

Did the 1978 opinion require another court order for a state-to-private hospital transfer?

No. The AG said DHR could order the transfer under G.S. 122-80 without a new judicial order.

Could DHR transfer a patient even if no one was willing to pay the private hospital?

No. The opinion says the action "can only be taken" if the patient, family, or representatives are willing to pay and a capable private hospital is willing to accept the patient.

What documents authorized the private hospital to hold the patient?

The opinion says a certified copy of the original hospitalization order, together with DHR's transfer order, was sufficient warrant. A certified copy of the transfer order also had to be filed with the originating county's clerk of superior court.

Could DHR delegate the transfer decision?

Yes. The AG said the Department could delegate this authority to a subordinate agency, without identifying a particular delegate.

Background and statutory framework

The opinion applies two provisions of Chapter 122 as it stood in 1978. G.S. 122-58.8 governed the initial commitment order. G.S. 122-80 permitted DHR to order a later transfer from a state hospital to a licensed private hospital within North Carolina. The AG treated the payment and hospital-acceptance requirements as conditions on taking that later action.

Citations

• Article 5A of Chapter 122 (Involuntary Commitment, as in force in 1978)
• G.S. 122-58.8 (court may order treatment for up to 90 days at public or private facility designated or licensed by DHR)
• G.S. 122-80 (Department of Human Resources may transfer patient from state hospital to licensed private hospital; certified copies of orders to private hospital and clerk of superior court; state hospital relieved of further responsibility)

Source

• Landing page: https://ncdoj.gov/opinions/mental-health-involuntary-commitment-transfer-of-a-respondent-to-a-private-hospital/

Original opinion text

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