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 in the 26th Judicial District asked the AG a focused administrative question: after a judge has involuntarily committed a respondent to a state hospital under Article 5A of Chapter 122 (the involuntary commitment article in force in 1978), does the Department of Human Resources need to come back to court for a new order before it can transfer the patient to a licensed private hospital?

The AG said no. G.S. 122-80 authorized the Department to order the transfer on its own.

The opinion walks through three steps.

Step one: the original commitment order can already direct private-hospital treatment if appropriate. G.S. 122-58.8 said that upon a determination that involuntary commitment is warranted, the district court may order inpatient or outpatient treatment for up to 90 days at a mental health facility, public or private, designated or licensed by the Department of Human Resources. So if the respondent, the family, or representatives are willing to bear the cost of private hospitalization, the initial order itself can direct commitment to a private hospital. The judge has discretion on that.

Step two: once commitment has gone to a state hospital, G.S. 122-80 lets the Department transfer to a private hospital without a new court order. The statute reads: "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 original hospitalization order, together with the Department's transfer order, is sufficient warrant for the private hospital to hold the patient. A certified copy of the transfer order goes to the clerk of superior court of the originating county. After transfer, the state hospital is relieved of all future responsibility for the patient.

Step three: the Department's authority to act may be delegated to a subordinate agency. Like other DHR functions, the transfer authority does not have to be exercised personally by the Secretary. It can be delegated to subordinate agency officials.

The AG also noted the practical limits: the transfer can only happen if the patient, family, or representatives are willing to pay private-hospital costs and if the private hospital is capable and willing to accept the patient. The statute gives DHR the authority, but does not compel the private hospital to take the patient or compel the family to fund the alternative placement.

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.

The North Carolina involuntary commitment statutes were substantially restructured after 1978. The Department of Human Resources itself was reorganized in subsequent decades into the Department of Health and Human Services. Chapter 122 was repealed and replaced by Chapter 122C (the current Mental Health, Developmental Disabilities, and Substance Abuse Act). The provisions cited in this opinion (G.S. 122-58.8 and G.S. 122-80) are no longer the operative authorities. The current statutory framework for state-to-private hospital transfers, the procedural protections around such transfers, and the role of the originating court are all governed by current Chapter 122C and its implementing regulations. Anyone working a current commitment-transfer question should consult Chapter 122C and the current DHHS administrative rules rather than this 1978 opinion.

Historical context: what the AG concluded

The opinion sits in the early years of North Carolina's modern involuntary commitment regime. The 1973 General Assembly had restructured the commitment process in response to procedural due process concerns, and Article 5A of Chapter 122 (as in force in 1978) was the result. The article placed the commitment decision in the district court, with the procedural protections of notice, counsel, and an evidentiary hearing. Once the court found that involuntary commitment was warranted, the court ordered up to 90 days of treatment at a mental health facility designated or licensed by DHR.

The transfer question the judge asked was about what happens after the court's role ends. The court's order placed the patient in a hospital. If clinical or administrative reasons later called for moving the patient to a different facility, was that a judicial decision or an administrative decision?

The AG read G.S. 122-80 as making it an administrative decision, with the Department of Human Resources as the decision-maker. The text was direct: "the Department of Human Resources may so order." The statute spelled out the implementation mechanics: a certified copy of the hospitalization order goes to the private hospital; the transfer order itself is the legal warrant for the private hospital's custody; a certified copy of the transfer order is filed with the clerk of superior court of the originating county; the state hospital's responsibility ends at transfer. None of that requires going back to the judge for a new order.

The AG's reading of the statute as "literal" was deliberate. The judge had asked whether an additional court order was "necessary." A literal reading of the text says no. The court order is the hospitalization order; the transfer order is an administrative act. Both are valid in combination as the legal basis for the private hospital's custody of the patient.

The opinion also reached a small delegation point. DHR's transfer authority, like other DHR functions, could be delegated to a subordinate agency. The Secretary did not have to personally sign each transfer order. Whatever subordinate agency DHR designated to handle commitment matters could exercise the authority.

Two practical limits were flagged. First, payment: the transfer to a private hospital is contingent on the patient, family, or representatives bearing the cost. The state was not committed to underwriting the alternative placement. Second, willingness: the private hospital had to accept the patient. DHR could not compel a private hospital to take a transferee. These are not legal limits on DHR's authority; they are operational realities the AG noted in passing.

For a district court judge in 1978, the operational takeaway was: after entering an Article 5A commitment order to a state hospital, the judge's role on the location-of-treatment question was over. Subsequent location changes were DHR's decision, mediated by family willingness to pay and the private hospital's willingness to accept. The judge would receive a certified copy of any transfer order through the clerk's office, but did not need to authorize it.

Common questions

What was the difference between an Article 5A commitment and a private commitment?

Article 5A of Chapter 122 was the involuntary commitment article in force in 1978. It applied when the district court found, after a hearing, that a respondent met statutory criteria for involuntary commitment. The court could order treatment for up to 90 days at a public or private facility designated or licensed by DHR. A "private commitment" in this opinion's vocabulary is a commitment under Article 5A where the placement (whether initial or by transfer) is at a private hospital rather than a state hospital. The legal status of the commitment is the same; the location is different.

Could the original commitment order place the patient in a private hospital directly?

Yes, under G.S. 122-58.8, if the respondent, family, or representatives were willing to bear the cost. The judge had discretion. The opinion is clear that "in his discretion" the judge could make that initial placement.

Why didn't the AG require a new court order for a transfer?

Because G.S. 122-80 expressly authorized DHR to order the transfer. The statute said "the Department of Human Resources may so order." The AG read that as a literal grant of authority. Requiring an additional court order would have added a procedure the statute did not require.

What happens to the original commitment order after a transfer?

It remains in effect for its statutory duration (up to 90 days). The transfer order does not extend, shorten, or modify the underlying commitment. It only changes where the commitment is being served.

What protection did the patient have against an arbitrary transfer?

The 1978 opinion does not address that question directly. It does require that a certified copy of the transfer order be filed with the clerk of superior court of the originating county, which creates a public record. The patient and family also have practical leverage because they have to consent to bear the private hospital's costs, and the private hospital has to accept the patient. The opinion is silent on whether the patient could contest a transfer in court.

Could DHR transfer a patient back from a private hospital to a state hospital?

The 1978 opinion does not address that direction of transfer. G.S. 122-80 by its terms speaks to state-to-private transfers. Whether the reverse direction had its own authority would be a separate question outside the opinion's scope.

Who exactly within DHR could make a transfer decision?

The opinion does not specify a particular subordinate agency. It says only that "[l]ike other functions of [DHR], the authority to take this action may be delegated to a subordinate agency." Whatever subordinate agency DHR had designated for commitment matters could exercise the transfer authority.

Background and statutory framework

The opinion is grounded in two adjacent provisions of Chapter 122 (1978).

G.S. 122-58.8 was the operative provision of Article 5A for the initial commitment order. After determining that involuntary commitment was warranted, the district court could order treatment for up to 90 days at a public or private mental health facility designated or licensed by DHR. The choice between public and private placement was the judge's discretion at the initial commitment stage.

G.S. 122-80 was the transfer provision. It authorized DHR to order the transfer of any patient from a state hospital to a licensed private hospital within the state. The operational mechanics: a certified copy of the hospitalization order goes to the private hospital; the transfer order itself is the legal warrant for the private hospital's custody; a certified copy of the transfer order is filed with the clerk of superior court of the originating county; the state hospital is relieved of all future responsibility for the patient.

The two provisions worked together to place location-of-treatment authority in the judiciary at the front end (initial commitment) and in DHR for subsequent administrative changes. The judge made the threshold determination that involuntary commitment was warranted and made the initial location choice. Once placed at a state hospital, the patient was within DHR's administrative authority for subsequent location decisions during the commitment period.

The AG opinion adds two interpretive points to the text. First, DHR may delegate the transfer authority to a subordinate agency. Second, the practical limits (family willingness to pay, private hospital willingness to accept) are not statutory limits on DHR's authority but operational realities that constrain how often the transfer authority actually gets used.

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