STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5653

February 14, 1980

MENTAL HEALTH:

Patient rights

CONSTITUTIONAL LAW:

Due process rights of a patient

The provisions of the Mental Health Code regarding the rights of mental patients to a preliminary hearing, to counsel, and to privacy are constitutional under test of the Due Process Clause of the United States Constitution.

Honorable George Montgomery

State Representative

The Capitol

Lansing, Michigan 48909

You have requested my opinion on the following question:

Specifically, allegations have been made to you that current statutes, presumably the Mental Health Code, supra, violate constitutional guarantees 'of immediate hearing, [right] to counsel, privacy, five to ten day incarceration for those deemed 'mentally disturbed'.'

The leading case in Michigan on the constitutional rights of mentally ill persons in the context of involuntary confinement is Bell v Wayne County General Hospital at Eloise, 384 F Supp 1085 (ED Mich, 1974) (3-Judge Court). In that case, the Court held that key provisions of 1923 PA 151 (repealed by the Mental Health Code, supra), providing for the involuntary confinement of mentally ill persons, were unconstitutional as 'facially violative' of due process of law.

The opinion in Bell went farther than simply declaring key provisions of 1923 PA 151 to be unconstitutional; the Court laid down due process standards that must be met before a person may be involuntarily confined because of mental illness. It is against the Bell standards that the allegations of unconstitutionality with respect to the Mental Health Code, supra, must be tested.

The first allegation is that the Mental Health Code, supra, violates a constitutional guarantee of an immediate hearing. In Bell, supra, 384 F Supp at 1098, the Court said:

The Mental Health Code, supra, Sec. 450(1) provides:

Your attention is invited, also, to the provisions of the Mental Health Code, supra, Sec. 452, which requires a prompt hearing, 'but in no case more than 7 days' after the filing of a petition with appropriate certificates for the involuntary admission of a person to a mental health institution.

In my opinion, the Mental Health Code, supra, meets constitutional requirements for a prompt hearing when a person is involuntarily hospitalized for mental illness.

The next allegation is that the Mental Health Code violates constitutional guarantees of the right to counsel. In Bell, supra, 384 F Supp at 1093, the Court said:

The Mental Health Code, supra, Sec. 454, provides:

I note, also, that under the provisions of the Mental Health Code, supra, Sec. 448, when a person is involuntarily hospitalized before a judicial hearing, not later than 12 hours after the hospitalization he must be advised in writing of his right to be represented by legal counsel.

In my opinion, the Mental Health Code, supra, complies with the constitutional guarantee of right to counsel.

The next allegation is that the Mental Health Code, supra, denies a person involuntarily hospitalized because of mental illness his constitutional right to privacy in the context of intrusive physical treatment. As to intrusive physical treatment, your attention is directed to the decision in Bell, supra, 384 F Supp at 1102, where the Court said:

The Mental Health Code, supra, Sec. 716, prohibits surgery or electroconvulsive therapy, or another procedure intended to produce convulsions, on a recipient of mental health services unless consent is obtained except in the case where the life of the recipient is threatened and there is not time to obtain consent. Further, the Mental Health code, supra, Sec. 718, prohibits the administering of chemotherapy to a person who has been hospitalized without a judicial hearing unless the individual consents to the administering of the chemotherapy or the administering of chemotherapy is necessary to prevent physical injury to the individual or others.

As to divulging confidential communications and medical records, the Mental Health Code, supra, Secs. 748 and 750, expressly maintain the confidentiality of patient records and the privilege surrounding patient-physician communications.

In my opinion, the Mental Health Code, supra, does not permit an unconstitutional invasion of the privacy of a person who has been involuntarily confined to a hospital because of mental illness.

The last allegation is 'five to ten day incarceration for those deemed 'mentally disturbed'.'

The Mental Health Code, supra, Sec. 400(a), defines mental illness as 'a substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.'

The Mental Health Code, supra, Sec. 401, defines the term 'person requiring treatment' as:

The standard, as stated in Bell, supra, 384 F Supp at 1096, is:

The Mental Health Code, supra, does not authorize involuntary hospitalization for those deemed 'mentally disturbed.' Thus, the standard of the Mental Health Code, supra, is far more detailed and in accord with the dictates of Bell, supra. It does require that a person suffer a mental disorder coupled with actual or threatened causing of harm to self or to others.

To conclude, it is my opinion that the provisions of the Mental Health Code, supra, regarding the rights of mental patients to a prompt hearing, to counsel and to privacy are constitutional.

Frank J. Kelley