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. 5144 July 19, 1977 DEPARTMENT OF CORRECTIONS: Transfer of mentally ill prisoners to Department of Mental Health. DEPARTMENT OF MENTAL HEALTH: Transfer of prisoners from the Department of Corrections. MENTAL DEFICIENT AND MENTALLY ILL PERSONS: Transfer of mentally ill prisoners from Department of Corrections to Department of Mental Health. PRISONS AND PRISONERS: Transfer of mentally ill prisoners from the Department of Mental Health. CONSTITUTIONAL LAW: Equal protection. To provide equal protection of the laws to prisoners involuntarily committed to a mental institution, a probate court hearing must be accorded before the transfer, the hearing to be conducted in the same manner as a civil commitment of a non-prisoner. Pursuant to Section 1000 of the mental health code, a prisoner who is to be involuntarily transferred to a mental institution is also entitled to an administrative hearing to determine the necessity of the transfer. Where a prisoner has involuntarily been transferred to a mental institution pursuant to an order of the probate court, the Department of Mental Health may treat the prisoner in the same manner as other patients involuntarily in the custody of the department and may provide the same involuntary medical treatment to a prisoner that it provides to other mental patients involuntarily committed. The extent of liability of the Department of Mental Health with respect to a prisoner involuntarily transferred to the department is the same as the liability of the department to any other in-patient. Donald C. Smith, M.D. Director Department of Mental Health Lewis Cass Building Lansing, Michigan Perry Johnson Director Department of Corrections Stevens T. Mason Building Lansing, Michigan You have asked for my opinion on several questions relating to the involuntary transfer of mentally ill prisoners (1) from correctional facilities to facilities of the Michigan Department of Mental Health. Your questions will be addressed seriatim: '1. Does the Department of Corrections have statutory authority (2) to independently transfer prisoners to the Department of Mental Health for the purpose of obtaining services which the staff of the Department of Corrections believes is necessary to that prisoner's medical and mental well-being regardless of whether the prisoner is willing to go and receive treatment?' A case which must be considered with regard to prisoner transfers to mental institutions is Baxstrom v Herold, 383 US 107; 86 S Ct 760; 15 L Ed 2d 620 (1965). Baxstrom involved a prisoner who was transferred from a correctional facility to a mental facility at the expiration of his penal sentence. Under the statutes of the State of New York which were in effect at that time, Baxstrom did not receive the benefit of many of the procedural safeguards which were afforded to other individuals being committed to a mental institution in the State of New York. The Supreme Court held that Baxstrom was denied equal protection of the laws. In particular, the Court held that Baxstrom should have received a jury trial and a determination should have been made that he was dangerously mentally ill in the same manner as a person civilly committed to the same institution. The crux of the Court's reasoning was contained in the following passages: 'The director contends that the State has created a reasonable classification differentiating the civilly insane from the 'criminally insane,' which he defines as those with dangerous or criminal propensities. Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made. Walters v. City of St. Louis, 347 U.S. 231, 237. Classification of mentally ill persons as either insane or dangerously insane of course may be a reasonable distinction for purposes of determining the type of custodial or medical care to be given, but it has no relevance whatever in the context of the opportunity to show whether a person is mentally ill at all. For purposes of granting judicial review before a jury of the question whether a person is mentally ill and in need of institutionalization, there is no conceivable basis for distinguishing the commitment of a person who is nearing the end of a penal term from all other civil commitments.' 383 US 107, 111-112; 86 S Ct 760, 763; 15 L Ed 620, 623-624 (1965). 'Where the State has provided for a judicial proceeding to determine the dangerous propensities of all others civilly committed to an institution of the Department of Correction, it may not deny this right to a person in Baxstrom's position solely on the ground that he was nearing the expiration of a prison term. It may or may not be that Baxstrom is presently mentally ill and such a danger to others that the strict security of a Department of Correction hospital is warranted. All others receive a judicial hearing on this issue. Equal protection demands that Baxstrom receive the same.' 383 US 107, 114-115; 86 S Ct 760, 764; 15 L Ed 2d 620, 625-626 (1965). (3) Therefore, to provide equal protection of the laws to prisoners who are involuntarily committed to a mental institution, a probate court hearing must be accorded the prisoner before the Department of Corrections may transfer him to the Department of Mental Health in the same manner as a civilly committed person is afforded a probate hearing. '2. If the decision at an administrative hearing were to be that the patient did require mental health services, would constitutional rights further require a petition and a probate court hearing to admit and treat a prisoner in a mental health facility? Must such a probate court proceeding require the same procedural protections and utilize the same standard for commitment as in a regular mental health civil commitment proceeding? '3. Is a prisoner, considered by the medical staff of the Department of Corrections to need mental health services, entitled either statutorily or constitutionally to an administrative hearing prior to his transfer from a correctional facility to a facility of the Department of Mental Health?' Since questions two and three are closely related, I will consider them together. It is my opinion that although an administrative hearing is not constitutionally required, Meacham v Fano, 427 US 215; 96 S Ct 2532; 49 L Ed 2d 451 (1976), an administrative hearing is currently required by statute. 1974 PA 258, Sec. 1000; MCLA 330.2000; MSA 14.800(1000) provides in pertinent part: '(1) . . . a prisoner is a person ordered by the court confined under a criminal sentence in a place of detention operated by the state or a political subdivision thereof. . . . '(2) Upon certification from a physician and after an administrative hearing, a prisoner shall be ordered admitted to a facility designated by the department of mental health if he is mentally ill or mentally retarded and in need of mental health services from the designated facility. A prisoner shall not be deemed to be in need of mental health services from the designated facility if he is receiving services appropriate to his mental condition at the place of detention, or if services appropriate to his mental condition could reasonably be made available by the place of detention or the agency which has custody of the prisoner under the terms of his sentence. '(3) A person may file with the officer in charge of the place of detention written notice alleging that a prisoner is mentally ill or mentally retarded and in need of mental health services at a facility designated by the department of mental health. The officer in charge shall make such orders as are necessary for the performance of an examination by a physician. '(4) When the examining physician certifies to the officer in charge of the place of detention that the prisoner is mentally ill or mentally retarded, the officer in charge shall immediately convene an administrative hearing pursuant to Act No. 306 of the Public Acts of 1969, as amended, being sections 24.201 to 24.315 of the Michigan Compiled Laws. The board shall be comprised of 3 members, not less than 1 of whom shall be an employee of the place of detention, not less than 1 an employee of the department of mental health, and 1 a psychiatrist. A member of the board shall not have participated in the examination. '(5) If it is the opinion of a majority of the board that the prisoner is mentally ill or mentally retarded and in need of services that can best be provided in a mental health facility, the officer in charge of the place of detention shall transfer the prisoner to a facility designated by the department of mental health. '(6) When a transfer is determined to be involuntary by the prisoner or at least 1 member of the board, the necessity of the transfer shall be reviewed governed by sections 453 to 456 and 458 to 465 [footnote omitted] if the prisoner is alleged to be mentally ill, or by section 517(2), (3), (5) and (6) [footnote omitted] if the prisoner is alleged to be mentally retarded within 5 days by the probate court of the county in which the designated mental health facility is located. Evidence at this hearing shall include a summary of the board's findings and the oral or written testimony of at least 2 qualified physicians. If the prisoner is found by the court to be mentally ill or mentally retarded and in need of services that can best be provided in a mental health facility, the transfer shall be affirmed and an order authorizing involuntary treatment shall issue. If the findings are otherwise, the court shall order the return of the prisoner to the previous place of detention.' The administrative hearing provided for in the above quoted statute, however, is not sufficient to allow an involuntary transfer of a prisoner from a place of detention to a mental health facility. First, of course, the statute itself provides that a subsequent probate court hearing is required where either the prisoner or a member of the administrative hearing board deems that the transfer is involuntary. 1974 PA 258, Sec. 1000(6), supra. Also, the statutorily required administrative hearing is substantially different from a probate court commitment hearing. The administrative hearing would be conducted pursuant to the Administrative Procedures Act of 1969, 1969 PA 306; MCLA 24.201 et seq; MSA 3.560(101) et seq. Under the Administrative Procedures Act the prisoner is entitled to adequate notice of the hearing, including a short and plain statement of the matters asserted against him, 1969 PA 306, Sec. 71; MCLA 24.271; MSA 3.560(171), an opportunity to present evidence on his behalf, and an opportunity to cross-examine witnesses against him. 1969 PA 306, Sec. 72; MCLA 24.272; MSA 3.560(172). A person committed pursuant to the Mental Health Code is entitled to additional rights which include the appointment of counsel, 1974 PA 258, supra, Sec. 454, a trial by jury, 1974 PA 258, supra, Sec. 458, and the right to an independent medical evaulation, 1974 PA 258, supra, Sec. 463. As the probate court hearing provided for in 1974 PA 258, supra, Sec. 1000(6) is procedurally identical to a hearing provided to a person being civilly committed to a mental health facility from outside of a prison, there is no problem in meeting the constitutional dictates of Baxstrom, supra, insofar as procedural due process is concerned. '4. Is the authority vested in the Department of Corrections to provide involuntary medical treatment to a prisoner transferable to the Department of Mental Health? When the patient is transferred to Mental Health, does that authority to treat involuntarily automatically transferred with the prisoner from the Department of Corrections to the Department of Mental Health? To what extent would the Department of Mental Health be able to treat a prisoner if the authority is transferred from the Department of Corrections? Would such authority include all types of services provided by Mental Health such as: 'zation of psychotropic drugs in accordance with guidelines established by the Department of Mental Health 'edications required for the treatment of physical illness (e.g. cardiac disease) 'lectro-shock therapy 'Copr.onvulsive therapy' Your question is: Where does the Department of Mental Health get legal authorization for the involuntary treatment of a prisoner-patient? In answer to your previous questions, I have stated that in order for a prisoner to be transferred from the Department of Corrections to the Department of Mental Health the prisoner must be afforded a probate court commitment hearing utilizing the same procedures and commitment standard as would be utilized with a non-prisoner. Under those circumstances, the authority of the Department of Mental Health to treat the prisoner would be derived from the commitment order of the probate court and the Mental Health Code. The Department of Mental Health could treat the prisoner in the same way as it treats any of its other patients who have been involuntarily committed. Questions regarding the authority of the Department of Corrections to provide in voluntary medical treatment transfers with the prisoner; thus the extent of the Department of Corrections' authority to involuntarily treat is irrelevant. The prisoner would be another resident of the mental health facility and would possess the same rights regarding treatment as all other patients who have been involuntarily committed. Whether the Department of Corrections has authority to provide involuntary medical treatment to a prisoner is irrelevant. The prisoner should be treated as any other resident of the mental health facility and possess the same rights regarding treatment as all other patients. See OAG, 1976-1977, No 5092, p ___ (October 5, 1976). '5. To what extent is the Department of Mental Health liable for any mental health service it provides for prisoners under sentence to the Department of Corrections, who are transferred to a Department of Mental Health facility?' As noted in answer to your fourth question, a prisoner who has been constitutionally committed to a mental health facility would be in the same situation as any other resident of that facility. Consequently, the liability of the Department of Mental Health with regard to that prisoner would be the same as the liability of the Department of Mental Health with regard to any other in-patient. '6. If the authority to treat patients does not transfer with the prisoner to the Department of Mental Health, how does Mental Health legally obtain authorization to treat such prisoners involuntarily?' This question has already been responded to by my answers to your previous questions. '7. What proceeding for transfer and where would the Department of Mental Health obtain the authority to treat prisoners who are incarcerated in places of detention that are not under the jurisdiction of the Department of Corrections such as Detroit House of Corrections and county jails?' 1974 PA 258, Sec. 1000, supra, quoted earlier in this opinion, applies not only to prisoners held by the Department of Corrections, but also to prisoners held by local governmental units. 1974 PA 258, Sec. 1000(1); MCLA 330.2000(1); MSA 14.800(1000)(1). This statute would provide the authority for local correctional instutitions to transfer their prisoners to facilities of the Department of Mental Health after first obtaining the involuntary commitment order from a probate court, as previously discussed. The Department of Mental Health obtains its authority to treat such prisoners pursuant to the probate court commitment order and the provisions of the Mental Health Code in the same way that they would obtain their authority to treat prisoners of the Department of Corrections. Frank J. Kelley Attorney General (1)
(2)
There is authority for the Department of Corrections to transfer a prisioner between penal institutions or from a penal institution to any other state institution for medical or surgical treatment. That authority is found in 1953 PA 232, Sec. 65; MCLA 791.265; MSA 28.2325, which provides:'Under rules and regulations promulgated by the director with the approval of the commission, the assistant director in charge of the bureau of penal institutions may cause the transfer or retransfer of any prisoner from any penal institution to which committed to any other penal institution, or temporarily to any state institution for medical or surgical treatment. In effecting such transfers the assistant director of the bureau of penal institutions may utilize the services of any executive or employee within the department and of any law enforcement officer of the state.' [Emphasis added.]
The statute, by its terms however, does not apply to a commitment to a mental institution.
(3)
In People v McQuillan, 392 Mich 511; 221 NW2d 569 (1974), the Michigan Supreme Court adopted the analysis of Baxstrom and held that a person found not guilty by reason of insanity could not be civilly committed beyond an observation period unless he received the same procedural safeguards as other civilly committed persons.