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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)



Opinion No. 5773

September 8, 1980


Interstate compact

Consent of patient or representative for removal to another state

Before a patient may be transferred from a mental health institution in this state to a mental health institution in another state, the patient must consent in writing to such removal if he or she is capable of consenting, or the personal representative of the patient must consent to such removal.

Frank M. Ochberg, M.D.


Michigan Department of Mental Health

Lewis Cass Building

Lansing, Michigan 48926

You have requested my opinion on the following questions regarding the Interstate Compact on Mental Health:

'1. Is it necessary and/or required that a resident of another state who is a patient in a Department of Mental Health hospital and whose transfer has been prepared pursuant to the Mental Health Code of Michigan, give permission prior to the interstate transfer? (Please refer to section 920 MCL 330.1920 of the Michigan Mental Health Code.)

'2. If the transfer is clearly documented as clinically in the best interest of the patient, i.e., close to relatives for the purpose of visitation and the service provided in their home state facility is of similar quality to this state's mental health facility where they are presently located, can the transfer of the out-of-state resident to a hospital in his home state occur without the informed consent of the patient?

'3. Does the fact that an individual has escaped from a mental hospital in another state and is on unauthorized leave status from that facility, affect the answers to the two above questions and possibly negate the necessity for an out-of-state resident's consent to transfer back to his home state from a Department of Mental Health hospital?

'4. Would the fact that a resident of another state on unauthorized leave from a mental hospital out-of-state, and who has been committed to said out-of-state hospital as an involuntary patient, negate the necessity for consent to transfer the patient from a Department of Mental Health hospital back to his out-of-state hospital of residence?'

The Interstate Compact on Mental Health (the 'Compact') is found at the Mental Health Code, 1974 PA 258, Sec. 920; MCLA 330.1920; MSA 14.800(920). The Compact consists of 14 articles, numbered I-XIV. In addition, the Mental Health Code, supra, Secs. 922-926 and 928-930; MCLA 330.1922-330.1926 and 330.1928-330.1930; MSA 14.800(922)-14.800(926) and 14.800(928)-14.800(930), relate to the Compact.

The Compact and the related sections cited above are a re-enactment of 1965 PA 270, which was repealed by the Mental Health Code, supra, Sec. 1106.

The historical note following MCLA 330.1920 indicates that the Interstate Compact on Mental Health, in one form or another, has been enacted in other states. Research does not disclose any decision of an appellate court construing the provisions of the Compact.

The adoption of the Compact was a total change in the policy of the State with regard to nonresident mental patients. The policy prior to the Compact was set forth in 1923 PA 151, Sec. 23, repealed by 1974 PA 258, Sec. 1106, supra, reading as follows:

'The hospitals, homes and institutions named in this act are intended for the benefit of the bona fide residents of the state. A non-resident may be admitted to 1 of such state institutions to receive such temporary care as he may require, pending his return to his home. The state hospital commission shall cause any person who has been admitted to any such institution but who has not acquired a legal settlement in this state, to be removed as soon as possible to the country or state to which he belongs. The actual and necessary expenses of such removal shall be audited by the board of state auditors and paid from the general fund in the state treasury upon vouchers certifying to the circumstances of such removal and showing in detail the expenses thereof.'

The present State policy, as set forth in the Compact, is:

'. . . Further, the party states find that the necessity of and the desirability for furnishing such care and treatment bears no primary relation to the residence or citizenship of the patient but that, on the contrary, the controlling factors of community safety and humanitarianism require that facilities and services be made available for all who are in need of them. . . .' Section 920, supra, Art I.

'Whenever a person physically present in any party state shall be in need of institutionalization by reason of mental illness or mental deficiency, he shall be eligible for care and treatment in an institution in that state irrespective of his residence, settlement or citizenship qualifications.' Section 920, supra, Art III(a).

The provisions of the Compact relating to the transfer of patients from one state to another are found in Art III(b)-Art III(e), Art V, Art VI, and Art VII(b). In addition, the Mental Health Code, supra, Sec. 930; MCLA 330.1930; MSA 14.800(930), provides:

'In the administration of the compact, the compact administrator shall not transfer any patient to an institution in another state without the prior written consent of the patient's parents, nearest relative, or guardian. A copy of the consent shall be placed on file in the probate court of the county issuing the order of judicial admission or in the case of a nonjudicial admission, in the probate court of the county where the patient resides.' (Emphasis added.)

The fundamental principle of statutory interpretation is set forth in Acme Messenger Service Co v Unemployment Compensation Commission, 306 Mich 704, 709; 11 NW2d 269 (1943); as follows:

'In approaching the question of law involved, we do not consider the wisdom or the policy of the legislature in the enactment. People v Powell, 280 Mich 699 (111 A.L.R. 721). The function of the court is to apply the fundamental rules of statutory construction and thereby seek to determine the legislative intent. If the language of the statute is plain and unambiguous, no interpretation is necessary. In re Chamberlain's Estate, 298 Mich 278. . . .'

The language of Section 930, supra, is plain and unambiguous.

It is my opinion, therefore, that before a patient may be transferred from a mental health institution in this state to a mental health institution in another state, the patient's consent in writing must be obtained, from the patient if the patient is legally capable of consenting, (1) otherwise from the patient's appropriate personal representative. The answer to each of your four questions is 'no.'

Frank J. Kelley

Attorney General

(1) Section 930 does not provide, specifically, for the consent of the patient. Under the Mental Health Code, supra, Secs. 489 and 540; MCLA 330.1489 and 330.1540; MSA 14.800(489) and 14.800(540), no admission of a person to a facility, whether judicially or otherwise, gives rise to any presumption of legal incompetence. If the Mental Health Code, supra, is read as a whole, it is clear that the legislature did not intend Section 930 to be applicable only in the case of a patient who is legally incapacitated. Moreover, if Section 930 were to be interpreted to be applicable only to legally incapacited patients, such an interpretation could mean that a person who has the legal capacity to consent can be transferred to a mental health facility of another state without his consent while a person lacking the legal capacity to consent cannot be so transferred, truly an absurd and unjust result and, thus, a result to be avoided under the principles of statutory interpretation. Williams v Secretary of State, 338 Mich 202, 208-209; 60 NW2d 910 (1953).


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