Can a teenager confined to a North Carolina psychiatric hospital pick their own lawyer without their parents' approval?

Plain-English summary

Attorneys had been meeting with minor patients at Dorothea Dix Hospital without the consent of the minor's parent or guardian. DHR Secretary C. Robin Britt asked the AG whether that should stop, except where the parent had engaged the attorney or where counsel had been court-appointed for a civil commitment hearing or other proceeding.

Attorney General Michael F. Easley, with Senior Deputy AG Ann Reed and Assistant AG Kathleen U. Baldwin, answered that the practice should stop. The 1985 General Assembly had rewritten the minor patient rights statute (G.S. § 122C-62(c)(2)) to give the minor the right to counsel "at his own expense or that of his legally responsible person... of his or his legally responsible person's choice." In the same year, the General Assembly added § 122C-4, which provides that any duty or right phrased as "client or his legally responsible person" is exercised by the legally responsible person when the client is a minor. The AG inferred that the legislature deliberately bundled the minor's attorney-consultation rights into the legally-responsible-person framework.

The 1995 General Assembly reinforced the same distinction in G.S. § 122C-53(i), which rewrote the rules for facility disclosure of confidential client information to require either (i) a request from a competent adult client or (ii) a request from the legally responsible person of any other client. Combined with the long-standing parental control statute (§ 110-44.1) and the common-law and constitutional recognition of parental rights (citing Tucker v. Tucker and Santosky v. Kramer), the statutory scheme pointed in one direction.

The AG also pointed out the various channels that protected minor patients despite the rule: civil commitment hearings carry their own appointed counsel under §§ 122C-224.1 and 122C-270; DSS can investigate a neglectful parent under § 7A-542 et seq.; the Governor's Advocacy Council for Persons with Disabilities can address complaints about treatment conditions under § 143B-403.1; the minor patient can independently contact a client advocate under § 122C-62(c)(2); and a minor over 16 who meets the statutory criteria can be emancipated under § 7A-717 et seq. and then act as a competent adult.

Currency note

This opinion was issued in 1995. 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. Chapter 122C has been amended several times since 1995, the Governor's Advocacy Council has been restructured, the juvenile code provisions cited (§§ 7A-542 et seq., § 7A-717 et seq.) have been recodified into Chapter 7B, and federal law on minors' due process in psychiatric commitment continues to evolve. A current question about a minor's attorney access in a NC 24-hour facility should be analyzed against the current Chapter 122C, Chapter 7B, and the latest administrative rules.

Background and statutory framework

NC's mental health treatment system distinguishes between voluntary and involuntary admission, and gives separate protections to minor clients of "24-hour facilities" (defined at § 122C-3(14)). For voluntary admission of a minor to a 24-hour psychiatric facility, the legally responsible person (defined at § 122C-3(20) as a parent, guardian, person standing in loco parentis, or court-appointed legal custodian with authority to consent to medical care) admits the minor; the minor cannot voluntarily check themselves in or out the way an adult can.

The 1973 General Assembly first carved out specific protections for minor clients. The 1985 amendments restructured the framework by adding § 122C-4's "client or his legally responsible person" substitution rule. The AG's opinion turns on the inference that when the legislature in 1985 changed the minor patient counsel-consultation statute from "his own expense" to "his own expense or that of his legally responsible person," it intended § 122C-4 to govern the choice of counsel.

The 1995 amendments to § 122C-53(i) sharpened the same line. The earlier version of that subsection let any client request disclosure of confidential information to an attorney; the 1995 rewrite divided clients into competent adults (who could request directly) and everyone else (whose legally responsible person had to request). The AG read this as confirmation that the legislature understood and intended the distinction.

The AG flagged a tension with 10 N.C.A.C. 14H.0203, the administrative rule then in force, which stated that "all clients" have the right to contact and consult with legal counsel of their choice in accordance with § 122C-62(a)(2) and (c)(2). The AG said the statute controlled and the rule should be amended for clarity.

Common questions

What if the parent neglects the minor's legal needs?

The AG identified the DSS abuse, neglect, or dependency investigation under § 7A-542 et seq. (now Chapter 7B) and the guardian ad litem program as the backstops. If a parent's failure to act amounted to neglect of the minor's wellbeing (which could include refusing necessary legal representation), DSS could intervene and the GAL could provide advocacy.

What about counsel for the commitment hearing itself?

Civil commitment counsel is appointed by statute under §§ 122C-224.1 and 122C-270. The minor patient does not need parental consent for that representation, and the AG explicitly carved it out. The opinion concerns the minor's separate right to pick a private attorney to consult about other matters.

What was the practical effect at Dorothea Dix and other state hospitals?

The opinion's direct effect was to instruct state psychiatric facilities to require parental consent before allowing attorneys to meet privately with minor patients, outside of court-appointed counsel scenarios. Attorneys engaged directly by parents or guardians could continue to meet with their minor clients.

Could the minor at least talk to a "client advocate"?

Yes. § 122C-62(c)(2) gave the minor an independent right to contact and consult with "a client advocate, if there is a client advocate," without the legally-responsible-person filter. The AG read the omission of "legally responsible person" from the client-advocate clause as deliberate. The Governor's Advocacy Council for Persons with Disabilities under § 143B-403.1 was a separate avenue for complaints about treatment conditions.

When can a 16- or 17-year-old act on their own?

Under § 7A-717 et seq. (now in Chapter 7B), a minor 16 or older who meets statutory criteria can be emancipated by court order. Once emancipated, the minor is treated as a competent adult for purposes of these statutes and can choose counsel directly.

Source

• Landing page: https://ncdoj.gov/opinions/attorney-access-to-minors-in-state-hospitals-and-attonrey-general-opinion/

Citations

• G.S. § 122C-3(14)(g)
• G.S. § 122C-3(20)
• G.S. § 122C-4
• G.S. § 122C-53(i)
• G.S. § 122C-62(c)(2)
• G.S. § 122C-224.1
• G.S. § 122C-270
• G.S. § 110-44.1
• G.S. § 143B-403.1
• G.S. § 7A-542 et seq.
• G.S. § 7A-717 et seq.
• 10 N.C.A.C. 14H.0203
• State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970)
• Tucker v. Tucker, 288 N.C. 81, 216 S.E.2d 1 (1975)
• Santosky v. Kramer, 455 U.S. 745, 71 L.Ed.2d 599, 102 S.Ct. 1388 (1982)

Original opinion text

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. § 122C-62(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. § 7A-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. § 7A-717 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