The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5420

December 22, 1978

ADMINISTRATIVE LAW AND PROCEDURE:

Exercise of powers beyond those conferred by the Legislature

DEPARTMENT OF MENTAL HEALTH:

Requirement that applicant for admission to a state in-patient facility consent to release of information

RECORDS AND RECORDATION:

Requirement by Department of Mental Health that applicants for admission to a state in-patient facility consent to release of information

The Department of Mental Health may not require that a parent or guardian consent to release of information as a condition for admission to a state in-patient facility.

Honorable Joseph M. Snyder

State Senator

The Capitol

Lansing, Michigan

You have inquired regarding the validity of certain portions of a document issued by the Department of Mental Health entitled 'Standards and Criteria for Case Planning and Service Assurance to Children Exiting State Mental Health Facilities.' You have specifically referenced two paragraphs of these Standards which state:

'The local plan that specifies coordinated procedures for individual case planning may be approved by the Department of Mental Health Regional Director based on mental health agency compliance with the following standards:

'D. To assure protection of recipient rights the placement review process shall provide that:

'1. At the time of application for admission to a state inpatient facility, the applicant (parent or guardian) shall have the benefits of the Placement Review process explained, and shall be informed that this process is an integral component of the inpatient treatment program. The applicant will be asked to sign a consent form authorizing the release of information necessary for an exit plan of service.

3. Should the parent or guardian refuse to consent to release of information for development of an individual plan of service, he/she shall be referred to an alternate treatment service. Should a consent for interagency service plan development be withdrawn at a later date, information necessary for placement shall be released by the facility director consistent with the Code provision for release 'when necessary to comply with another provision of the law.' (PA 258, 330.1748(4)(d).)'

In effect, you have asked whether the Department of Mental Health may deny admission to a state mental health institution on the basis of the quoted standards.

An administrative agency, such as the Department of Mental Health, has only those powers conferred upon it by the Legislature and may not expand upon or act contrary to those powers. Coffman v State Board of Examiners in Optometry, 331 Mich 582; 331 NW2d 322 (1951). The Legislature has provided for the voluntary admission of children to state mental health facilities in 1974 PA 258, Sec. 415(2), MCLA 330.1415(2); MSA 14.800(415)(2), which states:

'An individual less than 15 years of age may be hospitalized as a formal voluntary patient if an application for his hospitalization as a formal voluntary patient is executed by his parent, guardian, or, in the absence of his parent or guardian, a person in loco parentis, and if the director of the hospital deems him clinically suitable for that form of hospitalization.'

This section provides only two conditions for the hospitalization of a child. First, an application for voluntary hospitalization must be executed by the child's parent, guardian or person in loco parentis. Second, the director of the hospital must find that the child is clinically suitable for the form of hospitalization offered by that institution.

The Department of Mental Health has added a third condition to the admission of a child to one of its institutions, i.e., that the parent, guardian or person in loco parentis consent to the release of information about the child to other providers of services. This information would normally be confidential and not subject to such release. 1974 PA 258, supra, Sec. 748, MCLA 330.1748; MSA 14.800(748). The Department of Mental Health has, therefore, added a condition which is beyond those conditions prescribed by the Legislature.

It is my opinion that the Department of Mental Health does not have the authority to place such an additional condition upon the admission of a child to one of its facilities.

In addition, it is my opinion that the requirement of a pre-admission consent to the release of information is contrary to 1974 PA 258, supra, Sec. 748(5), MCLA 330.1748(5); MSA 14,800(748)(5), which provides:

'Information may be disclosed if the holder of the record and the recipient, his parents if he is a minor, or his legally appointed guardian consent:

'(a) To providers of mental health services to the recipient.'

In this section, the Legislature has unequivocally stated that it is within the discretion of the parent or guardian to consent to the release of confidential information to other providers of mental health services. It is therefore my opinion that the Department of Mental Health may not require a parent or guardian to consent to the release of the information as a condition for admission to a state in-patient facility.

Frank J. Kelley

Attorney General