STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5502

July 2, 1979

MENTAL HEALTH CODE:

Rights of recipients

DEPARTMENT OF MENTAL HEALTH:

Rights of recipients of mental health services

Rights of recipients of mental health services defined.

Honorable Robert Welborn

State Representative

The Capitol

Lansing, Michigan

You have asked for my opinion as to the rights of a recipient under Chapter 7 of the Mental Health Code, 1974 PA 258; MCLA 300.1700 et seq; MSA 14.800(700) et seq, (hereinafter 'Chapter 7').

Inasmuch as the rights of a recipient under the Mental Health Code are dependent upon the identity of the provider, in order to answer your question, it will be necessary to identify seven types of providers of mental health services: ⁽¹⁾

1. A private provider which does not offer residential services and is not under contract with a public mental health agency.

2. A private provider which does not offer residential services but is operated under contract with a public mental health agency.

3.-4. A private provider which does offer residential services. Here, a distinction must be made as to whether the services offered in a given case are:

5. A public provider which does not offer residential services.

6. A public provider which does offer residential services.

7. Residential facilities of the Department of Mental Health.

Chapter 7, Sec. 700(e) defines 'recipient' to mean:

An examination of this definition, while not artfully drafted, reveals that the legislature intended that 'recipient' include any person receiving mental health services from a facility, as defined in Chapter 7, Sec. 700(c), as well as any person receiving mental health services from an entity other than a facility, where that entity is operated by the Department of Mental Health or a community mental health agency or has a contract with the Department of Mental Health or a community mental health agency. Thus, the term 'recipient' does not include a person receiving mental health services on an outpatient basis from a nonresidential entity which is not operated by or under contract with the Department of Mental Health or a county community mental health agency. Conversely, 'recipient' does include a person receiving mental health services on an outpatient basis from a nonresidential entity which is operated by or under contract with the Department of Mental Health or a community mental health agency.

Therefore, in the case of the first type of provider identified above (a private provider which does not offer residential services and is not operated by or under contract with a public mental health agency) Chapter 7 is inapplicable except in regard to the patient privilege discussed later in this opinion.

The second type of provider identified above is a private provider which does not offer residential services but does operate under contract with a public mental health agency. Such a provider would be subject to much of Chapter 7, because a person receiving services from it falls within the definition of 'recipient' quoted above. Therefore, any provision of Chapter 7 which guarantees rights to a 'recipient' would apply to this type provider.

The third type of provider identified above is a private provider that does offer residential services. Such a provider would be subject to all of Chapter 7. Any person receiving services from such a facility would come within the definition of 'recipient' quoted above. It is important to note that the definition of 'recipient' includes anyone receiving services from a residential facility and is not limited to a person receiving services in such a facility. Therefore, once a provider offers inpatient services, both its inpatients and its outpatients are guaranteed those rights of a recipient as set forth in Chapter 7.

A private provider offering residential services is also subject to those sections of Chapter 7 which guarantee rights to 'residents.' A 'resident' is defined in Chapter 7, Sec. 700(d); as a 'person who resides in a facility.' 'Facility' is in turn defined in Sec. 700(c), as:

The definition includes any residential facility providing mental health services, whether private or public. This results from the fact that the definition refers to an entity either operated by a public agency or licensed by the state. The licensing of all inpatient psychiatric facilities is required by the Mental Health Code, supra, Chapter I, Sec. 1137. ⁽²⁾

Therefore, any inpatient facility providing mental health services, whether public or private, falls within the definition of the word 'facility.'

A fifth category of provider is the public entity which does not offer residential services. A person receiving services from such a provider falls within the definition of 'recipient' quoted earlier in this opinion and would, therefore, come within the purview of all those provisions of Chapter 7 which guarantee rights to recipients.

The sixth category of provider is the public entity which does offer residential services. A person receiving services from this category of provider would be entitled to all the rights guaranteed in Chapter 7, to both 'recipients' and, if the person is actually an inpatient, 'residents.'

The seventh category of provider set forth above is a residential facility of the Department of Mental Health. Such a facility is actually within the sixth category of provider, a public provider which does offer residential services, and, therefore, a person receiving services from the facility would be entitled to all the rights guaranteed in Chapter 7 to both 'recipients' and, if the person is actually an inpatient, 'residents.' I have set forth a departmental facility as a separate category, however, because Chapter 7, Secs. 1730, 1734 provide for certain rights with regard to patient money which, by the terms of the sections involved, apply only to residents of 'department' facilities. 'Department' is defined in Chapter 7, Sec. 1700(a) to mean the Department of Mental Health. ⁽³⁾

Finally, the statutorily conferred privilege against disclosure of confidential communications to a psychiatrist or psychologist contained in Chapter 7, Sec. 1750, since the reference therein is to 'patient,' rather than 'resident' or 'recipient,' applies to all such communications without regard to the type of provider involved.

Frank J. Kelley