STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6384

September 11, 1986

MENTAL HEALTH:

Waiting lists for admission to state hospitals

Impact of probate court orders on waiting lists

The Department of Mental Health may establish waiting lists for admission to state hospitals and centers for developmental disabilities under its jurisdiction, but the existence of a waiting list may not serve as a basis to deny admission to persons who have been committed to the department by order of a probate court or whose hospitalization is ordered by a probate court.

C. Patrick Babcock

Director

Michigan Department of Mental Health

Lewis Cass Building

Lansing, MI 48926

You have requested my opinion on the following questions regarding the power of the Department of Mental Health:

The Mental Health Code, MCL 330.1124; MSA 14.800(124), provides:

A cardinal rule of statutory construction is to ascertain and give effect to the intention of the Legislature, and where the language employed in a statute is plain, certain and unambiguous, a bare reading suffices and no interpretation is necessary. City of Grand Rapids v. Crocker, 219 Mich 178, 182; 188 NW 221 (1922); In re Chamberlain's Estate, 298 Mich 278, 283; 299 NW 82 (1941); Owendale-Gagetown School Dist v. State Board of Education, 92 Mich App 719; 285 NW2d 435 (1979), aff'd, 413 Mich 1; 317 NW2d 529 (1982); Brandon Twp v. North-Oakland Residential Services, Inc, 110 Mich App 300; 312 NW2d 238 (1981), lv den, 412 Mich 900 (1982).

The language of MCL 330.1124; MSA 14.800(124), is plain and unambiguous. The Department of Mental Health has the authority to establish waiting lists on the basis of space or other resource availability. MCL 333.1124; MSA 14.800(124), however, does not exist in a vacuum. It is a part of a comprehensive, statutory enactment--the Mental Health Code, MCL 330.1001 et seq; MSA 14.800(1), et seq. Another cardinal rule of statutory construction is that a single legislative enactment must be construed in its entirety, and one provision may not be construed in such a manner as to render other provisions of no effect if such result may be avoided. Joslin v. Campbell, Wyant & Cannon Foundry Co, 359 Mich 420, 426; 102 NW2d 584 (1960). The statute should be interpreted so as to produce a harmonious, consistent enactment as a whole. Id. It is, therefore, necessary to examine the rest of the Mental Health Code to determine if a literal interpretation of MCL 330.1124; MSA 14.800(124), might conflict with any other provisions of the Mental Health Code and, if so, whether that conflict may be avoided by a harmonious construction of the statute.

Particularly pertinent in this regard are those sections of the Mental Health Code which permit or require the Department of Mental Health to accept mentally ill or developmentally disabled individuals into its institutions. There are a number of instances under the Mental Health Code where statutory provisions provide that the Department of Mental Health "may" admit. Examples would be the temporary or administrative admission of a developmentally disabled individual, MCL 330.1508-330.1509; MSA 14.800(508)-14.800(509), and the formal or informal voluntary admission of an adult mentally ill person, MCL 330.1411-330.1415; MSA 14.800(411)-14.800(415). The use of the word "may" in a statute generally means than an action is not mandatory but, rather, is permissive. Newport West Condominium Association v. Veniar, 134 Mich App 1, 12; 350 NW2d 818 (1984). Since the Department of Mental Health is not mandated to admit the groups of patients just listed, no statutory conflict would arise if admission was refused because of the existence of a waiting list.

There are other circumstances, however, where the Mental Health Code provides that a person "shall" be admitted. Generally, the use of the term "shall" means that the action in question is mandatory. LundBerg v. Corrections Commission, 57 Mich App 337; 225 NW2 752 (1975). MCL 330.1423; MSA 14.800(423), provides that a hospital designated by the Department shall admit an individual presented to the hospital if an application for hospitalization and a physician's or psychologist's certificate have been executed. MCL 330.1429; MSA 14.800(429), provides that a hospital designated by the Department shall receive a person presented to the hospital for examination under the protective custody provisions of the Mental Health Code who appears to be in need of mental health services and has declined to accept them.

MCL 330.1124; MSA 14.800(124), in authorizing the Department to establish waiting lists, does not contain any provisions which would permit the Department of Mental Health to ignore these legislative mandates. It would appear, therefore, that on the surface there is a conflict between the department's authority under MCL 330.1124; MSA 14.800(124) and its duty under MCL 330.1423 and 330.1429; MSA 14.800(423) and 14.800(429). As noted above, however, every effort should be made in determining the legislative intent behind a statute to harmonize the various provisions of the statute. In the present case, that harmonization may be achieved by recognizing that the mandatory admission provisions of the Mental Health Code are exceptions to the Department of Mental Health's overall authority to establish waiting lists.

The Department of Mental Health may avoid this conflict. MCL 330.1423; MSA 14.800(423), and MCL 330.1429; MSA 14.800(429), provide for mandatory admission to a hospital "designated by the department." It is my understanding that the Department of Mental Health has designated all of its hospitals pursuant to these provisions, with the exception of certain specialized facilities. There is nothing in the Mental Health Code that mandates that the Department of Mental Health designate each and every one of its facilities as a mandatory admission hospital. If it were necessary to establish a waiting list at a particular hospital, the Department of Mental Health could also remove the designation from that hospital. If that were done, then admission under MCL 330.1423; MSA 14.800(423), and MCL 330.1429; MSA 14.800(429), becomes, under the terms of those sections, permissive and within the discretion of the hospital.

There remains the situation where a court involuntarily commits someone to a mental health institution following a full civil commitment hearing. MCL 330.1468(2); MSA 14.800(468)(2), and MCL 330.1518; MSA 14.800(518), provide that once a court determines that a civil commitment is necessary it may, among other things, order an individual admitted to a hospital or facility designated by the Department of Mental Health or order the individual hospitalized in any other public or private hospital or facility, if that hospital or facility agrees.

When the Legislature places a condition in one section of a statute but excludes that condition in another, similar section of the statute, the implication is that the Legislature did not intend that the condition apply in the statutory section where it was not included. 2A Sutherland Stat Const (4th Ed), Sec. 47.23. With regard to private and public hospitals not designated by the Department of Mental Health, the Legislature has included the condition that those hospitals must agree to accept a judicially-committed individual. No such condition is included with regard to state hospitals designated by the Department. The conclusion that follows is that designated state hospitals must accept people judicially committed to them by a probate court.

Therefore, under the principles expressed earlier in this opinion and in accordance with the rule that a statute must be construed as a whole, it is concluded that the Department of Mental Health must accept judicially-committed individuals even though the Department may have a waiting list in place. Again, however, the Department may avoid this problem by not including within its list of designated hospitals those hospitals which have a waiting list.

It is also noted that pursuant to MCL 330.1470; MSA 14.800(470), and MCL 330.1520; MSA 14.800(520), a court shall not commit an individual to a hospital or facility unless that hospital or facility can provide adequate and appropriate care and treatment. MCL 330.1124; MSA 14.800(124), in empowering the Department of Mental Health to create waiting lists, essentially, also, relies on the unavailability of resources as the reasons for such a list. If the Department has established a waiting list at a particular hospital or facility due to inadequate resources, then, presumably, a court would not commit an individual to that hospital or facility in accordance with the limitations expressed in MCL 330.1470; MSA 14.800(470), and MCL 330.1520; MSA 14.800(520).

Finally, there appear to be some statutory differences with regard to the acceptance by the department of emotionally disturbed minors. Provisions for the care and admission of emotionally disturbed minors are provided in Chapter 4A of the Mental Health Code, MCL 330.1498a-MCL 330.1498s; MSA 14.800(498a)-MSA 14.800(498s). MCL 330.1498f; MSA 14.800(498f), provides:

These provisions mandate that a hospital maintain a waiting list whenever it has insufficient space. "Hospital" is defined in MCL 330.1498b(11); MSA 14.800(498b)(11), as any hospital which specializes in mental health services for the treatment of minors, whether or not it is operated by the Department of Mental Health. The only exception to the use of waiting lists is contained in MCL 330.1498h; MSA 14.800(498h), which mandates that emotionally disturbed minors must be admitted to the hospital in emergency situations.

It is my opinion, therefore, that the Department of Mental Health may establish waiting lists for admission to state hospitals and centers for developmental disabilities under its jurisdiction, but the existence of waiting lists does not empower a Department of Mental Health facility to refuse admission to persons who have been committed to the department by an order of a probate court, or whose hospitalization is ordered by a probate court.

Frank J. Kelley

Attorney General