North Carolina Attorney General reports |
Previous | 6 of 36 | Next |
|
small (250x250 max)
medium (500x500 max)
Large
Extra Large
large ( > 500x500)
Full Resolution
|
This page
All
|
THE LIBRARY OF THE UNIVERSITY OF NORTH CAROLINA THE COLLECTION OF NORTH CAROLINLVNA C340 N87a 1974-75 p^ UNWEBSITY OF N CAT CHAPEL Hia 00033947285 FOR USE ONLY IN THE NORTH CAROLINA COLLECTION 44 N.C.A.G. No. 1 Pages 1 through 200 NORTH CAROLINA ATTORNEY GENERAL REPORTS Opinions of the Attorney General July 1, 1974 through December 31, 1974 < MAILING ADDRESS: Post Office Box 629 Raleigh, North CaroUna 27602 RUFUS L. EDMISTEN Attorney General Harry W. McGalliard Chief Deputy Attorney General J979/7, Jean A. Benoy James F. Bullock I. Beverly Lake, Jr. Andrew A. Vanore, Jr. Robert Bruce White, Jr. Deputy Attorneys General Charles H. Smith Administrative Deputy Attorney General Howard A. Kramer Deputy Attorney General for Legal Affairs John A. Elmore, II Special Assistant to the Attorney General Myron Banks James L. Blackburn George W. Boylan William F. Briley Lester V. Chalmers, Jr. H. Al Cole, Jr. T. Buie Costen Donald A. Davis Sidney S. Eagles, Jr. Roy A. Giles, Jr. Guy A. Hamlin Claude W. Harris Ralf F. Haskell Charles R. Hassell, Jr. Charles M. Hensey 1. B. Hudson, Jr. Parks H. Icenhour Keith L. Jarvis Rafford E. Jones Richard N. League James E. Magner, Jr. John R. B. Matthis William W. Melvin William F. O'Connell Conrad O. Pearson William B. Ray M. Ann Reed Millard R. Rich, Jr. James B. Richmond Walter E. Ricks, III Jacob L. Safron Alfred N. Salley John M. Silverstein Norman L. Sloan Eugene A. Smith Edwin M. Speas, Jr. Robert G. Webb Wm. Woodward Webb Thomas B. Wood Assistant Attorneys General John W. McDevitt, Consultant Herbert Lamson, Jr., Claims Attorney Charles J, Murray, Revisor of Statutes Noel L. Allen Archie W. Anders Jesse C. Brake E. H. Bunting, Jr. David S. Crump Robert P. Gruber Zoro J. Guice Charles D. Heidgerd Alan S. Hirsch Richard F. Kane Robert W. Kaylor Sandra M. King Wilton E. Ragland, Jr. William A. Raney, Jr. Robert R. Reilly Thomas M. Ringer, Jr. Jerry J. Rutledge James M. Wallace, Jr. Raymond L. Yasser Associate Attorneys 10 July 1974 Subject: Requested by: Question: Conclusion: State Departments, Institutions and Agencies; Department of Correction; Amendment of Sentence Mr. James P. Smith Senior Administrative Assistant Department of Social Rehabilitation & Control Is the Department of Correction required to reduce an inmate's prison sentence as the result of post term court orders? No. Neither the statutory nor the common law of the State of North Carolina contains any provision for post sentence hearings on reduction of sentence and once a term of court comes to an end, the judge is without authority to vacate or modify the judgment. In State v. Lewis, 226 N.C. 249, 37 S.E. 2d 691 (1946), the Supreme Court of North Carolina stated: "After a defendant has begun the service of his term, or at least when that takes place after the adjournment of the court, it is beyond the jurisdiction of the judge to alter it or to interfere with it in any way." (at 251) More recently, in State v. Lawrence, 264 N.C. 220, 141 S.E. 2d 246 (1956), the Supreme Court reaffirmed this holding by stating that: ". . .After the term ended the judge was without authority to vacate or modify the judgment ..." (at 223) See. also. State v. Godwin, 210 N.C. 447, 187 S.E 2d 560 (1936). Regarding the District Courts, the Court stated in State v. Lawrence, supra: "Where the length of the term of an inferior court is not expressly stated by statute other than it shall continue until the .business before it is disposed of, the term cannot last beyond the time fixed for the next succeeding term, unless perhaps a trial in actual progress should extend it . . . ." (at 223) Furthermore, once the term of court comes to an end, only the Governor of this State may grant reprieves, commutations and pardons. In State v. Lewis, supra, the Supreme Court directly spoke to this issue by stating: "The power of pardon, parole or discharge during the term of imprisonment is by the Constitution the exclusive prerogative of the Governor." (at 251) Although State v. Lewis, supra, refers to Article III, Sec. 6 of the North CaroUna Constitution of 1868, its holding is equally apphcable to Article III, Sec. 5(6) of the North Carolina Constitution of 1970. Although the power to parole contained in the 1868 Constitution has now been given by the General Assembly to the North Carolina Board of Paroles (see Article 4, Chapter 148 of the General Statutes), the 1970 Constitution provides that: "The Governor may grant reprieves, commutations, and pardons ..." In view of the foregoing, it is our opinion that after a defendant has begun the service of his term, or at least when that takes place after the adjournment of the court, it is beyond the jurisdiction of the judge to alter it or to interfere with it in any way, as the power of reprieve, commutation and pardon during the term of imprisonment is by the Constitution of North Carolina the exclusive prerogative of the Governor. Cf. In Re Powell, 241 N.C. 288, 84 S.E. 2d 906 (1954). -2- Robert Morgan, Attorney General Jacob L. Safron Assistant Attorney General 10 July 1974 Subject: Requested by: Questions: Conclusions: Mental Health; Infants and Incompetents; Rights of Minor Patients in Treatment Facilities Dr. Lenore Behar, Chief Children and Youth Services Division of Mental Health Services (1) Do the provisions of G.S. 122-55.13 terminate the parental-child relationship between a minor patient in a North Carolina treatment facility and his parent or parents? (2) Is it a violation of the rights of a minor patient in a North Carolina treatment facility to notify his parent or parents: (a) of his presence there when he is a runaway from home? (b) of the fact he has been or is being treated for venereal disease? or (c) of the fact that he has attempted to commit suicide? (1) The provisions of G.S. 122-55. 1 3 do not terminate the parental-child relationship between a minor patient in a North Carolina treatment facility and his parent or parents. (2) It is not a violation of the rights of a minor patient in a North Carolina treatment facility to notify his parent or parents: (a) of his presence there when he is a runaway from home; (b) of the fact that he has been or is being treated for venereal disease; or (c) of the fact that he has attempted to commit suicide. The 1973 Session (2nd Session 1974) of the General Assembly of North Carolina singled out minor patients in North Carolina treatment facihties for special consideration. As a result. Part 3 of Article 3, Chapter 122 is devoted to the rights of minor patients and is tailored to meet their particular requirements. G.S. 122-55.13 declares an intention to protect the minor patients' riglats to "dignity, humane care, and proper adult supervision and guidance". This section clearly provides: "In view of the physical, emotional, and intellectual immaturity of the minor, the treatment facility shall stand in loco parentis to the minor when he is in residence." It would appear that this placement of responsibility upon the treatment facility has raised the question as to the exact status of the parent of a minor patient during the period of time that the minor is in a treatment facility. Examination of Part 3 of Article 3, in its entirety, however, dispels any illusions that the General Assembly had intended to tamper with the relationship between minor patients and their parents. It is clear that what was intended was to create a status of authority on the part of the facility to safeguard the welfare of minor patients on an around-the-clock basis and to permit the facility to perform functions which the parents normally would perform were they not geographically separated from the minor. That there was no intention to interrupt the normal parental relationship is manifested by the provisions of G.S. 122-55.14 which specifically guarantee the minor patients' rights to communicate with individuals having legal custody of them and to consult with private mental health mental retardation specialists chosen by their legal custodians. This State has long adhered to the principle that "... the law seeks to work in harmony with nature, and to continue those ties which bind man to his own flesh . . ." See James r. Pretlow, 242 N.C. 102, 105 (1955). Any termination of the parent-child relationship predicated solely upon a minor's patient status in a treatment facility would do unwarranted violence to this basic principle. In view of this continuation of the normal parental relationship, it becomes obvious that there is no abrogation of any right of a minor patient in communicating to his parent or parents information dealing with his location, his physical or mental condition, or his actions. Imphcit in the language of G.S. 90-21.1 through G.S. 90-21.5 is a recognition by the General Assembly of the nature of such a relationship. By these statutes, treatment of minors by qualified physicians acting without the consent of parents was legitimized in certain emergency situtations. The language throughout these statutes clearly conveys the underlying theme that leaving the parents out of the picture will be the exception rather than the norm. Further, it is difficult to visualize how the responsible adult could determine the advisability of procuring the assistance of private mental health mental retardation specialists (as guaranteed by G.S. 122-55. 14)if he is not afforded the benefit of all information pertinent to the condition and treatment of the minor. Further indication of the intent of the Legislature on this score is found in the provisions of G.S. 122-56.5 providing that a parent, inter alia, shall act for a minor who has been voluntarily admitted to a treatment facility in consenting to medical treatment; again, any such consent should clearly be an enhghtened one. One specific comment is in order with regard to information that a minor is being treated for venereal disease. G.S. 90-21.5 specifically addresses the subject of venereal disease and authorizes, in this hmited area, treatment based upon the minor's consent. Nevertheless, this excusable of the need for a before the fact consent by a responsible adult does not preclude an after the fact report of this or any other pertinent aspect of the patient's condition to such responsible adult. Robert Morgan, Attorney General William F. O'Connell Assistant Attorney General -5- 10 July 1974 Subject: Requested by: Question: Conclusion: Mental Health; Infants and Incompetents; Voluntary Admission of Runaway Minors to Treatment Facilities Dr. Lenore Behar, Chief Children and Youth Services Division of Mental Health Services In an emergency situation may a runaway minor may be voluntarily admitted to a North Carolina treatment facility under the provisions of Article 4, Chapter 122, upon his request but without an appHcation for admission being submitted by his parent, parents, or other person having legal custody of him? In an emergency situation a runaway minor may be voluntarily admitted to a North Carolina treatment facility under the provisions of Article 4, Chapter 122, upon his request without application for admission by his parent, parents, or person having legal custody of him. This question has arisen because of the provisions of G.S. as follows: 122-56.5, "§122-56.5. Representation of minors and persons adjudicated non compos mentis. In applying for admission to a treatment facility, in consenting to medical treatment when consent is required, in giving or receiving any legal notice, and in any other legal procedure under this Article, a parent, person standing in loco parentis, or guardian shall act for a minor, and a guardian or trustee shall act for a person adjudicated non compos mentis." The phraseology of this Section, standing alone, and interpreted -6- literally, would appear to mandate the presentation of an application for admission by a responsible adult as an absolute prerequisite to admission of a minor to a treatment facility. Further, although G.S. 122-55.13 provides that "... the treatment facility shall stand in loco parentis to the minor when he is in residence", no such provision is made for the period prior to his becoming a resident of the facility. However, elsewhere in the General Statutes the legislators have provided for situations wherein treatment of minors is required on an emergency basis. G.S. 90-21.1 authorizes a medical doctor to render treatment to any minor without consent of the parents, etc., where: (1) The responsible adult cannot be located or contacted with reasonable diligence in time to meet the minor's needs for treatment; or (2) where the identity of the minor is unknown or the necessity for immediate treatment is so apparent that delaying treatment in an effort to secure approval would endanger the minor's life; or (3) where an effort to contact the responsible adult would result in delay that would seriously worsen the minor's condition. G.S. 90-21.2 defines the word "treatment" as " . . . any medical procedure or treatment, including X-rays, the administration of drugs, blood transfusions, use of anesthetics, and laboratory or other diagnostic procedures employed by or ordered by a physician licensed to practice medicine in the State of North Carolina that is used, employed, or ordered to be used or employed commensurate with the exercise of reasonable care and equal to the standards of medical practice normally employed in the community where said physician administers treatment to said minor." It is clear that the treatment required by a minor suffering from mental illness would fall within this definition. It is equally clear that admission of the minor patient to the facility wherein he is to receive this treatment is an integral and vital part of the treatment itself. Therefore, when the situation is of an emergency nature of a type as described by G.S. 90-21.1, a minor may be admitted to a North Carolina treatment facility without the application for admission being presented by a responsible adult. Robert Morgan, Attorney General William F. O'Connell Assistant Attorney General 10 July 1974 Subject: Requested by: Question : Conclusion: Mental Health; Involuntary Commitment; Return of Respondent to Mental Health Facility for Treatment Pending Commitment Hearing Dr. N. P. Zarzar, Director Division of Mental Health Services Department of Human Resources Is it necessary to initiate a new affidavit as the basis for securing the involuntary readmission to a mental health facility of a patient who has been released therefrom pending his hearing in district court but whose condition has changed so as to require prehearing inpatient treatment? It is necessary to initiate a new affidavit as the basis for securing the involuntary readmission to a mental health facility of a patient who has been released therefrom pending his hearing in district court but whose condition has changed so as to require prehearing inpatient treatment. G.S. 122-58.6 deals with prehearing disposition of a respondent in an involuntary commitment case. This Section requires an examination of a respondent by a qualified physician within 24 hours of his arrival at the facility and the results of this examination determine his prehearing status. If the qualified physician finds that the respondent is mentally ill or an inebriate and is imminently dangerous to himself or others, the respondent is held at the facility pending the hearing. Conversely, if the quahfied physician finds that the respondent is not mentally ill or inebriate or is not imminently dangerous to himself or others, he releases the respondent pending his district court hearing and notifies the clerk of superior court to that effect. No specific directives are contained in G.S. 122-58.6 relative to the individual who has been initially released from the facility pending his commitment hearing but whose changed condition apparently indicates the advisability of prehearing involuntary inpatient treatment. However, the underlying theme running through the present involuntary commitment statutes is a prohibition of any semblance of arbitrary, capricious, questionable, or unnecessary restraints upon an individual processed thereunder. Indicative of the legislative feeling relative to appropriate documentation are the provisions found in G.S. 122-58.6 dealing with a respondent who has been released prior to his hearing but who then improperly fails to appear for his hearing. Even in that aggravated situation, an order of the responsible judge is required in order to take the respondent into custody and return him to the mental health facility. In the situation described in the question, some form of reliable information must be available in order to justify altering the earlier professional determination of the qualified physician regarding the need for holding the respondent prior to his hearing. The initiation of action designed to involuntarily commit a mentally ill or inebriate person is required to be based upon an affidavit of a person having knowledge of the facts and the entire situation. See G.S. 122-58.3 and G.S. 122-58.18. Similarly, the spirit of the involuntary commitment statutes ~ as well as efficient, effective and just practices and procedures ~ requires documentation in the form of a new affidavit in order to warrant reversal of the preliminary decision that restraint of the respondent is not necessary prior to his hearing. Robert Morgan, Attorney General William F. O'Connell Assistant Attorney General 10 July 1974 Subject: State Departments, Institutions and Agencies; Department of Natural and Economic Resources; Sedimentation Control Commission; Chairman -9- Requested by: Mr. James E. Harrington, Secretary Department of Natural and Economic Resources Question: Conclusion : Under the provisions contained in Chapter 1262, Sections 40 and 41, 1974 Session Laws, reorganizing the Department of Natural and Economic Resources, and under those contained in Chapter 1417, Section 2, 1974 Session Laws, amending the Sedimentation Pollution Control Act of 1973, did the Secretary of the Department of Natural and Economic Resources again become the Chairman of the Sedimentation Control Commission on 1 July 1974? No, Chapter 1417, Section 2, not only amends G.S. 1 13A-53, but also amends by implication Chapter 1262, Section 40, so as to provide that the Governor shall designate a member of the Commission to serve as Chairman. On 13 April 1974, Chapter 1417, 1974 Session Laws, amending the Sedimentation Pollution Control Act of 1973, was ratified by the Legislature. It removed the Secretary of the Department of Natural and Economic Resources (DNER) from membership on the Sedimentation Control Commission, where he had been Chairman as so provided in G.S. 1 13A-53(a)(l). This Chapter became effective upon its ratification on April 13. On 1 1 April 1 974, two days earlier, the Legislature had ratified Chapter 1262, 1974 Session Laws, reorganizing DNER. The effective date of this law was 1 July 1974. Section 40 of this Chapter simply copied G.S. 113A-53, as it existed before Chapter 1417 amended it, and Section 41 repealed G.S. 113A-53 on 1 July, the effective date. Therefore, on 1 July 1974 when G.S. 113A-53 was repealed, the authorizing provision for the Commission then became Section 40 of Chapter 1262. 10- If literal effect were to be given to these two enactments, the result would be that on April 13, the date on which Chapter 1417 became effective, the Secretary of DNER was removed from membership on the Commission and was replaced as Chairman by a member of the Cominission designated by the Governor. Then, on July 1, the effective date of Chapter 1262, the Secretary of DNER again became a member of the Commission and its Chairman. This gives rise to the question of whether or not the Secretary of DNER did, indeed, again become the Chairman of the Sedimentation Control Commission on July 1. In the opinion of this Office, the answer is "no". It is well established that the intent of the Legislature controls the interpretation of the statute. Person v. Garrett, 280 N.C. 163, 165, 184 SE 2d 873 (1971); State Highway Commission v. Hemphill, 269 N.C. 535, 538, 153 SE 2d 22 (1967); Shiie v. Scheldt, 252 N.C. 561, 564, 114 SE 2d 237 (1960). G.S. 143B-14(b) prohibits the Secretary of DNER from serving as Chairman of the Sedimentation Control Commission. Consequently, G.S. 113A-53 was amended by Chapter 1417, Section 2, 1974 Session Laws, in order to make it conform with the statutory requirements of G.S. 143B-14(b). However, Chapter 1262, 1974 Session Laws, which was ratified two days before Chapter 1417, but did not become effective until two and one-half months after it, simply copied verbatim G.S. 1 13A-53, as it existed before Chapter 1417 amended it. Since legislative intent controls the interpretation of the statute, it is our opinion that Chapter 1417, Section 2, has the effect of amending, by implication, Chapter 1262, Section 40, so as to permanently remove the Secretary of DNER from his position as Chairman of the Sedimentation Control Commission. Furthermore, if possible, the language of the statute will be interpreted to avoid absurd consequences. Person v. Garrett, supra at 166; Hobbs v. Moore County, 267 N.C. 665, 671, 149 SE 2d 1 (1966). In the matter currently under consideration, since the purpose of Chapter 1417, Section 2, was to remove the Secretary of DNER as Chairman of the Sedimentation Control Commission in order to conform to the requirements of G.S. 143B- 14(b), it -11- would be an absurd consequence to rename him as a member of the Commission and as Chairman on July 2, in derogation once more of G.S. 143B-14(b), the very ill which Chapter 1417, Section 2, was enacted to cure. An amendment or repeal of statutes by implication is not favored in this jurisdiction. Person v. Garrett, supra, at 165; State v. Hockaday, 265 N.C. 688, 691, 144 SE 2d 867 (1965); In re Halifax Paper Company, Inc., 259 N.C. 589, 594, 131 SE 2d 441 (1963). A later statute will not amend or repeal a former statute unless the two are in irreconcilable conflict, and amendment or repeal by implication is necessary. Person v. Garrett, supra; In re Halifax Paper Company, Inc., supra; Ivey v. North Carolina Prison Department, 252 N.C. 615, 619, 114 SE 2d 812 (1960); 7 North Carolina Index 2d, Statutes §11, at 84-85. However, where two statutes relating to the same subject are passed at the same or different sessions of the Legislature, and they are in irreconcilable conflict, the statute first enacted must give way to the latter to the extent of the conflict, the latest expression of the legislative will or intent being the law. Bland v. Wilmington, 278 N.C. 657, 661, 180 SE 2d 813 (1971); Victory Cab Company v. Charlotte, 234 N.C. 572, 577, 68 SE 2d 433 (1951); Guilford County v. Estates Administration, Inc., 212 N.C. 653, 655, 194 SE 2d 433 (1937); Road Commissioners v. County Commissioners, 186 N.C. 202, 204-205, 119 SE 206 {1923); North Carolina Index 2d, supra. Thus, Chapter 1417, Section 2, being the latter statute enacted, thereby is deemed to evidence the latest expression of the legislative intent or will, and has the legal effect of amending, by impUcation, Chapter 1 262, Section 40, so as to remove the Secretary of DNER from his position as Chairman of the Sedimentation Control Commission. This is so even though Chapter 1417 was ratified only two days after Chapter 1 262 and even though Chapter 1 262 did not become effective until two and one-half months after Chapter 1417. We believe that this latter fact is inconsequential, carrying no legal impHcations. Therefore, since the legislative intent was to remove the Secretary of DNER from his position as Chairman of the Sedimentation Control Commission and since an absurd result would be reached -12- if he were allowed to become the Chairman again on July 1 and since Chapter 1417 was the latter bill enacted, thus evidencing the latest expression of the legislative will, although it became effective before Chapter 1262, it is the opinion of this Office that Chapter 1417, Section 2, has the effect of amending, by implication. Chapter 1262, Section 40, thus removing the Secretary of DNER from his position as Chairman of the Sedimentation Control Commission in conformity with G.S. 143B-14(b). Consequently, on July 1, he was not reinstated as Chairman. Robert Morgan, Attorney General Kenneth B. Oettinger Associate Attorney 10 July 1974 Subject: Mental Health; Involuntary Commitment; Supervision and Treatment of a Respondent Detained in a Community Mental Health Center or Regional Mental Health Facility Requested by: Dr. N. P. Zarzar, Director Division of Mental Health Services Department of Human Resources Questions: (1) During the detention of a respondent at a community mental health center or a regional mental health facility prior to his involuntary commitment hearing, is appropriate supervision over him the responsibility of such facihty or center? (2) May respondent who is in detention in a community mental health center or a regional mental health facility prior to his involuntary commitment hearing be given medication or other treatment for his mental illness or inebriety? -13- Conclusions: (1) A community mental health center or regional mental health faciUty is responsible for the appropriate supervision of a respondent detained there prior to his involuntary commitment hearing. (2) While detained in a community mental health center or a regional mental health facility prior to his involuntary commitment hearing a respondent may be given reasonable and appropriate medication and treatment consistent with accepted medical standards if such is given under the direction of the attending qualified physician. Article 5A of Chapter 122 vests considerable responsibility in the law enforcement officer with regard to taking a respondent into custody during the initial stages of an involuntary commitment proceeding and taking him to the appropriate facihty or place for examination. Provisions are also made for the law enforcement officer to secure such detention of the respondent as is necessary to process the case. Further, the Article is clear that the law enforcement officer is responsible for getting the respondent to the right place for detention and/or examination. However, there is nothing in Article 5A which would impose any duty on the law enforcement officer to personally exercise supervision over the respondent while he is being detained at a community mental health center or a regional mental health facility. Quite to the contrary, the Article provides that the quahfied physician at the center or facihty "shall hold the respondent at the facility" or "shall release the respondent" based upon his determinations. See G.S. 122-58.6. Certain other functions such as later transporting a respondent or taking him into custody and returning him to the hospital devolve upon the law enforcement officer. Nevertheless, the whole tenor of Article 5A is indicative of the fact that the supervisory responsibihty over the respondent while he is actually detained at a center or facility is that of the qualified personnel at such center or facility. Further exemplification of this legislative intent to make -14- the center or facility responsible for the respondent's welfare is found in the provisions of G.S. 122-58. 6(c) as follows: "(c) Pending the district court hearing, the qualified physician attending the respondent is authorized to administer to the respondent reasonable and appropriate medication and treatment that is consistent with accepted medical standards." Robert Morgan, Attorney General William F. O'Connell Assistant Attorney General 10 July 1974 Subject: Requested by: Questions: Conclusions: Mental Health; Involuntary Commitment; Determination of Place of Detention Prior to Commitment Hearing Dr. N. P. Zarzar, Director Division of Mental Health Services Department of Human Resources (1) How can a law enforcement officer determine the proper place for and cause detention of a respondent prior to an involuntary commitment hearing? (2) During the preliminary stages of an involuntary commitment proceeding, may a magistrate or clerk, acting under G.S. 122-58.4, designate a temporary overnight place of custody with provision for subsequent removal to a regional facility for examination? ( 1 ) The prehearing detention authorized by G.S. 122-58.4 should be effected in accordance with the custody order of the magistrate or clerk; if the custody order 15- lacks specificity, the provisions of G.S. 122-58.4 and the local plan formulated for the use of mental health facilities will control. (2) A magistrate or clerk may designate a temporary overnight place of detention with provision for subsequent removal to a regional mental health facility for examination in the case of a respondent being processed for involuntary commitment when this course of action is rendered necessary by existing circumstances and will not result in the exceeding of time hmitations for the examination as prescribed by G.S. 122-58.4. G.S. 122-58.4 requires prompt examination of a respondent who is being processed under the involuntary commitment statutes. Rigid time requirements are imposed so that the respondent must be taken into custody within 24 hours of the execution of the custody order by the magistrate or clerk, and he must be transported to a proper place for examination immediately, but, in any event, within 48 hours after custody has been assumed. The law enforcement officer receiving the custody order is the individual who is responsible for getting the respondent to the right place within the prescribed time; apparently, some question has arisen as to where this law enforcement officer can look for guidance when a physician is not immediately available. The statute requires use of a community mental health facility as the place of detention if such is available. Otherwise, the law enforcement officer ". . . may cause the detention of the respondent, under appropriate supervision, in the respondent's home, in a general hospital or in a regional mental health facihty, but not in a jail or other penal facility." If the magistrate or clerk has specifically directed a place of detention, that order should be followed if possible; if, due to unexpected developments or unknown factors arising after the issuance of the order, the place specified appears inappropriate to the law enforcement officer, then he should so -16- apprise the magistrate or clerk and secure additional instructions. Where, due to insufficient information at the time of issuing the custody order or for other reasons, no specific place is specified in the custody order, the local plan deahng with mental health facilities should be looked to for guidance as to the proper place of detention. G.S. 122-58.16 requires the formulation of such a plan by community mental health facilities and area mental health programs. These plans are arrived at " . . .after consultation with local court officials and the local medical society" and approval thereof by the Division of Mental Health Services is required. Since the statute makes it very clear that the desired place of detention, where available, is a community mental health center, provision for alternate courses of action, absent a community health center, should be included in the local plan for the guidance of judicial and law enforcement personnel. In view of the requirement for consideration by all involved parties prior to formulation of the local plan, the provisions therein should conform to the requirements of G.S. 122-58.4 but be tailored to meet the needs of the local mental health personnel, the judiciary and the law enforcement officers. As to Conclusion No. 2, prompt examination of the respondent is required and the time Umits for the required actions leading up to the examination are absolute mandates. However, clearly there may be situations where, due to prevailing circumstances, the appropriate course of action will be local overnight detention, under authorized conditions, despite the fact that a satisfactory examination may not be obtained locally. In these situations, so long as the mandatory time Umit for examination of the respondent can still be met, it would appear that the magistrate or clerk is vested with discretion to enter an order directing local temporary custody and late transfer to a regional mental health facility. Robert Morgan, Attorney General William F. O'Connell Assistant Attorney General -17- 17 July 1974 Subject: Requested by: Question: Health; Regulation of Sewage Disposal in Foodhandling and Lodging Establishments; Construction of G.S. 72-46, G.S. 130-160 and G.S. 143-215 Mr. Stacy Covil, Assistant Head Sanitation Branch Sanitary Engineering Section Division of Health Services Department of Human Resources In light of the authority of the Environmental Management Commission to promulgate regulations and standards concerning sewage disposal systems and discharge therefrom under G.S. 130-160 and G.S. 143-215, may the Commission for Health Services also promulgate regulations concerning sewage disposal in foodhandling and lodging facilities under G.S. 72-46? The Commission for Health Services may prepare and the Department of Human Resources may enforce more stringent regulations concerning sewage disposal in foodhandling and lodging facilities where such regulations are deemed necessary to protect the pubhc health. G.S. 130-160 provides in substance that any person owning or controlling a residence, place of business or place of public assembly shall provide an approved sewage disposal system. A system with less than three thousand gallon capacity and not discharging into the surface waters is subject to approval according to regulations promulgated by the Commission for Health Services; a system with more than three thousand gallon capacity is subject to approval according to regulations promulgated by the Environmental Management Commission. The Environmental Management Conclusion: Commission is authorized under G.S. 143-215 to adopt effluent standards and limitations concerning discharge into all surface waters. G.S. 72-46 provides in substance that the Commission for Health Services shall promulgate regulations concerning the sanitation of foodhandUng and lodging establishments. The section provides that a permit must be obtained from the Department of Human Resources before any establishment may operate and that the permit may only be issued upon compliance with the regulations prepared by the Commission. A minimum grade of C is required for operation. The section sets forth certain items, including waste disposal, which shall be covered in the Commission's regulations. Section 6, Item 6, of the Rules and Regulations Governing the Sanitation of Restaurants and Other Foodhandling Establishments provides in part that "All toilet wastes shall be disposed of in a public sewer system, or in absence of a public sewer system, by a private sewage disposal system approved by the Commission for Health Services." Applying established rules of statutory construction that statutes pertaining to similar matters are to be harmonized and that implied repeal of statutory provisions is not favored, it is the opinion of this Office that the authority of the Environmental Management Commission to adopt regulations and standards under G.S. 130-160 and G.S. 143-215 does not diminish the authority and the responsibility of the Commission for Health Services to adopt and the Department of Human Resources to enforce regulations designed for the protection of the public health in regard to sewage disposal systems in foodhandling and lodging establishments. Due to the importance of proper sanitation in such establishments, the Legislature has authorized and directed the Commission for Health Services to consider and regulate all aspects of proper sanitation. This specific authority and responsibiUty in insuring proper sanitation must be construed as a supplemental safeguard for protecting the public health in foodhandling and lodging establishments in addition to the regulations of the Environmental Management Commission under G.S. 130-160 and G.S. 143-215. In light of possible concurrent jurisdiction of the Environmental Management Commission and the Commission for Health Services in promulgating regulations concerning sewage disposal systems in -19- foodhandling and lodging facilities, the Department of Human Resources, in enforcing the regulations of the Commission for Health Services, may evaluate a sewage disposal system and determine whether, regardless of the fact that the system has been found to satisfy the requirements of the Environmental Management Commission, the system satisfies the requirements of the Commission for Health Services. It is the opinion of this Office that the regulations of the Commission apphcable to sewage disposal systems in foodhandUng and lodging establishments may be more stringent than those of the Environmental Management Commission apphcable to sewage disposal systems in general; but, in no event, may the Department of Human Resources issue a permit under G.S. 72-46 to an establishment which has not satisfied the applicable regulations, if any, of the Environmental Management Commission under G.S. 130-160 and G.S. 143-215. Tliis conclusion necessarily follows from the determination that G.S. 130-160 and G.S. 143-215 impose minimum requirements of sanitation for sewage disposal systems and that G.S. 72-46 imposes supplemental requirements on foodhandling and lodging establishments. G.S. 72^6 provides that the Commission for Health Services may prepare rules concerning waste disposal, among other things, in determining the overall sanitation of the establishment; but G.S. 130-160 specifically provides that all places of business shall have a sanitary system of sewage disposal. It would be anomalous to conclude that an establishment, although failing to satisfy the specific mandate of G.S. 130-160 and G.S. 143-215, could nevertheless possess the level of sanitation demanded by G.S. 72-46. Therefore, if the Office of Environmental Protection has issued a permit or temporary permit indicating compUance with G.S. 130-160 and G.S. 143-215, the Department of Human Resources may independently evaluate the sewage disposal system in determining the general sanitation of the foodhandling or lodging estabUshments. However, if the Office of Environmental Protection denies a permit or withdraws a temporary permit, the estabUshment cannot ipso facto satisfy the requirements to obtain a minimum grade of C. Robert Morgan, Attorney General Robert R. Reilly Associate Attorney -20- 17 July 1974 Subject: Requested by: Questions: Conclusions: State Departments, Institutions, and Agencies; State Department of Youth Development; Infants and Incompetents; Medical Treatment for Students; Consent for Surgical Operations on Minor Students Mr. John R. Larkins, Commissioner Office of Youth Development Department of Social Rehabilitation and Control Under present conditions where none of the facilities of the State Department of Youth Development have a medical doctor at the facility but where each has a contractual relationship with a medical doctor for medical services to its students: (1) Who is authorized to consent to a non-emergency surgical operation on a minor student? (2) Who is authorized to consent to an emergency surgical operation on a minor student? (3) What authorization is needed for non-surgical medical treatment given to a minor student? (4) May effective general consent be obtained in advance from parents, guardians, relatives or legal custodians for all necessary medical treatment and surgery which may be given to a minor student in the future? Under the circumstances described in the questions: -21- (1) Consent for a non-emergency surgical operation on a minor student should be obtained from a responsible member of his family, guardian, or one having legal custody. If such type of individual qualified to give this consent cannot be found, then consent should be obtained from the local health director of the area where the facility is located. (2) Consent for an emergency surgical operation on a minor student should be obtained from the superintendent of the institution and the medical doctor under contract for medical services to students of the facility. (3) The need for non-surgical medical treatment given to a minor student should be determined by the medical doctor under contract to the facility, and, upon such determination, no further consent is necessary. (4) General consent from parents, guardians, relatives or legal custodians obtained in advance for surgical operations on minor students would not be effective to authorize future surgical operations. In view of conclusion (3), general advance consent for future non-surgical treatment of minor students is not prohibited nor would it be necessary for the administration of non-surgical treatment by the medical doctor under contract. G.S. 134-26, ratified in 1971, provides: "§134-26. Providing necessary medical and surgical treatment for students. - The State Department of Youth Development is authorized and directed to -22- provide, through hcensed physicians and surgeons, such medical and surgical treatment as is necessary to preserve the life and health of the students. The medical staff of any school, institution, or agency, under the management and control of the State Department of Youth Development, is hereby authorized to perform or cause to be performed, by competent and skillful physicians or surgeons, medical treatment or surgical operations upon any student when such operation is necessary for the physical health of the student. Provided, that no operation shall be performed except as authorized in G.S. 130-191." As a result, in order to resolve the question regarding non-emergency surgery, it is necessary to examine G.S. 130-191. As found in the 1974 Replacement Volume 3B of the North Carolina General Statutes, that section makes the following provisions for non-emergency surgery on minor students: "No such operation shall be performed . . ., if the inmate be a minor, without the consent of a responsible member of his family, a guardian, or one having legal custody of such minor ... In any event in which a responsible member of the inmate's family, or a guardian for such inmate, cannot be found, as evidenced by the return of a registered letter to the last known address of the guardian or responsible relative, then the local health director of the area in which the hospital or institution is located shall be authorized to give or withhold, on behalf of the inmate, consent to the operation." This language unequivocally demonstrates a legislative intent to secure the consent for non-emergency surgery from the parents, guardian, or a person having custody where it is reasonably possible. As an alternative, when efforts to find such person in the manner prescribed have been unsuccessful, the local health director is vested with the responsibility for resolving the issue of whether the operation should be performed and is authorized to give the required consent. -23- Paragraph 2 of G.S. 130-191 covers the situation where emergency surgery on a minor resident is involved but it is impossible to obtain the timely consent of "a responsible member of his family, guardian, or one having legal custody." In that situation "... the decision to proceed with the operation shall be made by the chief medical officer and the superintendent of the institution with the advice of the medical staff of the institution." Clearly, under existing circumstances, substituting a medical doctor under contract for a non-existent chief medical officer and his staff would fall squarely within the ultimate intent of the legislators, i.e., obtaining the approval of the superintendent of the institution and a professionally qualified medical doctor. This section and this rationale would appear to be similar to that involved in Article 1, Chapter 90, of the North Carolina General Statutes, dealing with the general treatment of all minors in this State. In view of the specific language of G.S. 130-191 and the Hmitations of its area of application, its provisions should control in the event of any conflict or inconsistencies with the provisions of Article 1 of Chapter 90. So too, the intent of the legislators as expressed in G.S. 134-26 would also be implemented by equating a medical doctor under contract to the "medical staff" described in that section. Thus the medical doctor having a contractual relationship with the facility would be the determiner of the need for non-surgical treatment of a minor student. Of course, responsibility rests upon the personnel at the facility for insuring that any minor student displaying symptoms of illness, disease, etc., receives appropriate medical examination for the purpose of determining the need for medical treatment. Finally, the specificity of the language of G.S. 130-191, together with the limitations imposed by G.S. 134-26, precludes the deriving of any true authorization for future surgery from a general consent previously obtained from responsible adults. As to non-surgical treatment, in view of the statutory provisions governing this situation, such prior consent is not required as a prerequisite for obtaining appropriate treatment. However, this general consent to non-surgical treatment is not prohibited and might serve at least a psychological purpose in reassuring the responsible adults that the minor student will receive proper medical treatment, or in deterring future attempts to institute litigation because of medical treatment which has been given. -24- It is noted that a prior opinion of this Office addressed to Dr. John S. Chamblee, Rocky Mount City Health Director, dated 1 July 1969, and published at 40 N.C.A.G. 674 has dealt with these questions. In view of the language of the present statutes governing this situation, that prior opinion is hereby superseded with this opinion and the advice given in the prior opinion should no longer be followed. Robert Morgan, Attorney General William F. O'Connell Assistant Attorney General 19 July 1974 Subject: Requested by: Mental Health; Involuntary Commitment; Authority of Attending Physician to Determine Place of Pre-Hearing Custody Mr. M. G. Boyette County Attorney Moore County Question: May the attending physician in a community mental health center, acting solely at his own discretion, transfer to a regional mental health facility a respondent in an involuntary commitment proceeding who is in pre-hearing detention at the center? Conclusion: An attending physician at a community mental health center, acting solely at his own discretion, may not transfer to a regional mental health facility a respondent in an involuntary commitment proceeding who is in pre-hearing detention at the center. This Office has recently had occasion to examine the problems attendant to the pre-hearing detention of respondents in involuntary -25- commitment cases, including the authority to determine a proper place for detention. See opinions of the Attorney General to Dr. N. P. Zarzar, Director, Division of Mental Health Services, Subjects: Determination of Place of Detention Prior to Commitment Hearing; Supervision and Treatment of a Respondent Detained in a Community Mental Health Center or Regional Mental Health Facility; and Return of Respondent to Mental Health Facility for Treatment Pending Commitment Hearing, all three opinions dated July 10, 1974. The conclusions arrived at in these opinions were predicated to a very great extent upon some of the desired results which the General Assembly obviously intended to achieve by ratifying the new involuntary commitment statutes-i.e., insuring the minimum amount of pre-hearing restraint commensurate with the individual case, avoiding any requirement for excessive transportation of the respondent as a part of the commitment proceedings, accessibility of the respondent to his lawyer, and placing the proceedings squarely within orderly judicial proceedings so that the rights of all parties can be protected. The same basic considerations are involved in arriving at the conclusion voiced here. If the order of the magistrate or clerk specifies the place of detention and a change therein becomes imperative, the judicial officer who issued this order should be contacted, informed of the situation, and requested to alter the detention order. If no place of detention is specified in the order, and the order does not grant the detaining facility discretion in the matter, then the local plan dealing with mental health facilities formulated under G.S. 122-58.16 should afford proper guidance on the matter of transfer of the respondent. The controlling statutes speak clearly regarding the authority of a qualified physician attending the respondent to release him from any detention prior to his hearing. Thus, if the physician finds that the respondent is not mentally ill or inebriate and not imminently dangerous to himself or to others, then he may release him from such detention until the time of his commitment hearing. See G.S. 122-58.6. However, if the attending physician determines that the respondent should be detained, he is not authorized, on his own, to transfer the respondent to a regional mental health facility in contravention of the order of the magistrate or clerk or contrary to the provisions of the local mental health plan. Although authority is vested in the attending physician to administer appropriate, -26- reasonable medication and treatment to a respondent being detained, in view of the specific statutory language dealing with the place of detention, this authority does not extend to an unauthorized transfer of a respondent in pre-hearing detention. Robert Morgan, Attorney General William F. O'Connell Assistant Attorney General 5 August 1974 Subject: Requested by: Questions: Mental Health; Mentally 111 or Inebriate Persons; Patients' Rights; Contraband; Search and Seizure; Regulation of Parking; Assault Dr. Pedro Carreras, Assistant Director John Umstead Hospital (1) May the Director of a State mental institution confiscate contraband articles in possession of a patient at such institution? (2) May the Director of a State mental institution search a patient and his possessions for articles that may be dangerous, not only to the patient, but to other patients and staff as well, when reliably informed that a patient has such articles in his possession? (3) What degree of force may be used by a State mental health hospital staff member to defend himself when assaulted by a violent and aggressive patient? (4) Is John Umstead Hospital authorized to establish parking areas for patients and enforce use of such areas? -27- Conclusions: (1) The Director of a State mental institution may confiscate contraband articles in possession of a patient at such institution. (2) The Director of a State mental institution may search a patient and his possessions for articles that may be dangerous not only to the patient but to other patients and staff as well, when reliably informed that a patient has such in his possession; however, where criminal prosecution is indicated and where it does not appear that the situation is so emergent that irremediable harm would result from delay, a search warrant should be obtained prior to search. (3) A mental health hospital staff member may use only that degree of force necessary to repel and secure a violent and aggressive patient. (4) John Umstead Hospital may establish parking areas for patients and enforce use of such areas. The mental hospital to which a mentally ill or inebriate person is committed pursuant to Article 5A of Chapter 122 of the General Statutes has custody of such person and is responsible for appropriate supervision during the commitment period. See G.S. 122-58.8(b). G.S. 122-55.2 provides that a patient has a right to keep and use his own clothing and personal possessions and to have access to individual storage space for his private use. However, nothing contained therein gives the patient a right to have in his possession articles that are imminently dangerous to himself or others or property, the possession of which is made a criminal offense under the laws of this State, i.e., concealed weapons, illegal drugs, etc. The Department of Human Resources has jurisdiction over all the State's mental hospitals, G.S. 122-1, and the Commission for Mental Health Services is authorized to estabHsh -28- rules and regulations governing the admission of persons to such institutions. G.S. 122-3. The Department may, by proper regulations, require inventorying and proper storage of such articles as may be dangerous but not otherwise illegally possessed. The authorities and case law in this State concerning search and seizure deal generally with actual or suspected criminal law violations and evidence obtained by an unlawful search and seizure may not be introduced at the trial of the accused. A warrant may be issued by any justice, judge, clerk or assistant or deputy clerk of any court of record, or any magistrate of the General Court of Justice to search for any contraband, evidence, or instrumentality of crime upon finding probable cause for the search. G.S. 15-25(a). In order to obtain a search warrant, it is necessary that an affidavit under oath establish the basis for the finding of probable cause for its issuance. G.S. 15-26. Further, no evidence obtained or facts discovered by means of an illegal search shall be competent as evidence in any trial. G.S. 15-27(a). This Office is of the opinion that contraband articles, i.e., weapons, illegal drugs, etc., in the possession of a patient at a mental institution may be seized by the Director of such institution, particularly where the retention of such would constitute a danger to the safety not only of the particular patient but other patients and the staff as well. This applies to such articles in a patient's possession at the time of his admission and at all times thereafter during his detention at the hospital. Further, if there is reasonable ground to believe that a patient has such articles in his possesion, this information may be conveyed by proper affidavit to a magistrate or other person authorized to issue a search warrant and such magistrate or other officer may, if convinced, issue such warrant. Where criminal prosecution is anticipated, obtaining a search warrant will tend to make amply sure that the objects seized will be admissible at trial. However, in situations where it appears probable that bodily injury or property destruction, etc., will result from the delay, the better cause may well be to conduct the search without benefit of a warrant; hence, the conclusions reached in Questions (1) and (2). -29- The right of self-defense provides the answer to Question (3). A person may use such force to repel an assault as is reasonably or apparently necessary to protect himself from death or great bodily harm. The reasonableness of the apprehension is to be determined by the jury in accordance with the facts and circumstances as they appeared to defendant at the time of assault. See State v. Francis, 252 N.C. 57, 112 S.E. 2d 756 (1960). The force used must not be excessive or disproportionate to the force it is intended to repel and the question of excessive force is ordinarily for determination of the jury. State v. Ritter, 239 N.C. 89, 79 S.E. 2d 164 (1953). Thus, a mental hospital staff member may, if assaulted by a violent and aggressive patient, use such force as is necessary to defend himself; however, great care should be exercised to assure that the force used to repel the assailant is not excessive under the circumstances. As to Question (4), G.S. 122-16.1 and G.S. 122-95 appear to be dispositive. Under G.S. 122- 16. 1(b), the Commission for Mental Health Services is authorized to establish parking areas on the grounds of mental institutions. Under G.S. 122-95, the North Carolina Department of Human Resources is authorized to make rules and regulations and to adopt such ordinances as may be necessary for the better administration of John Umstead Hospital and is authorized in particular to estabUsh parking areas. We are of the opinion that this authority is sufficiently broad to enable John Umstead Hospital to designate State-owned areas as patient parking lots and to require patients having automobiles at the institution to park their automobiles in those areas. Robert Morgan, Attorney General Parks H. Icenhour Assistant Attorney General 12 August 1974 Subject: Social Services; Closed-End Budget for Financing Programs of Public Assistance at the County Level; Chapter 1418, Session Laws 1973, Second Session; Legality of Social Services Commission Proviso that for -30- Fiscal 1974-75 Counties Will Be Required to Provide Adult Services, Under More Liberal Eligibility Standards, Only to the Extent the County Budgets Permit Requested by: Mr. Robert Ward Deputy Director Division of Social Services N. C. Department of Human Resources Question: May the Social Services Commission adopt a proviso that for fiscal 1974-75 counties will be required to provide adult services, under more liberal eligibility standards, only to the extent their budgets permit? Conclusion: The Social Services Commission may adopt a proviso that for fiscal 1974-75 counties will be required to provide adult services, under more Hberal eligibility standards, only to the extent their budgets permit. At the June 14, 1974, meeting of the North Carohna Social Services Commission approval was given to raising the maximum level of income for eligibility for potential recipients of adult services, with the proviso that for fiscal 1974-75 counties will be required to provide such services only to the extent their budgets permit. The focal issue in this instance is the possibility that certain applicants for adult services who are otherwise eligible under the financial standard adopted by the Social Services Commission may be deprived of such services by virtue of the fact that the county has exceeded its budgetary maximum for these programs for fiscal 1974-75. Such a result would run afoul of 45 CFR §222.5 and 45 CFR §220.15: "All of the services (adult) contained in the State plan must be available, accessible, and provided with reasonable promptness to all ehgible persons needing the services." 45 CFR §222.5. (Emphasis supplied) "The State plan: -31- (a) Must assure that responsibility is assumed for tiie provision of services (certain adult services under Title IV-A of the Social Security Act) to all appropriate persons receiving aid and others in the home whose needs were considered in determining eUgibility for such aid, as called for under each of the requirements in §§ 220.16- 220.25..." 45 CFR §220.15. (Emphasis supplied) Such a result would also run afoul of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States. However, Chapter 1418 of the 1973 Session Laws, Second Session, 1974, established the "State Public Assistance Contingency Fund" from State appropriations to provide additional funds to the counties for all programs of public assistance in fiscal year 1974-75 in the event that expenditures in such county programs exceeded the approved budget of total county funds required to finance each program of public assistance within that county for fiscal year 1974-75. Consequently, when the aforementioned proviso is considered in connection with the provisions of Chapter 1418, it becomes evident that all persons eligible for adult services in fiscal 1974-75 will, in fact, receive such services, only the costs thereof will be assumed in one of the following manners: 1. By the individual county under its budget for adult services until that budget has been exhausted at which time the county may, with the approval of the Secretary of Human Resources or his representative, transfer county funds from another public assistance program to the adult services programs. See Section 5 of Chapter 1418. 2. When the county's budget for all public assistance programs is exhausted, the expense of these programs in the county for fiscal year 1974-75 will be defrayed by an allotment from the "State Public Assistance Contingency Fund," made to the county at any time during the fiscal year by the Secretary of Human -32- Resources when satisfied of the county's need for such allotment. See Section 2 of Chapter 1418. In sum, Chapter 1418 has cured the proviso adopted by the Social Services Commisssion on June 14, 1974, of significant constitutional and statutory defects. Therefore, the proviso is legally sanctionable at this time. Robert Morgan, Attorney General William Woodward Webb Assistant Attorney General 12 August 1974 Subject: Requested by: Questions: Mental Health; Commitment Rehearings; Waiver of Notification of Time and Place of Rehearing Mr. J. Laird Jacob, Jr. Special Counsel Broughton Hospital (1) Is it required that the clerk's notice of rehearing pursuant to Article 5A, Chapter 122, North Carolina General Statutes, in an involuntary commitment case be actually served upon the respondent and the appropriate special counsel? (2) May the special counsel in an involuntary commitment case involving an indigent respondent: (a) accept service of the clerk's notice of rehearing (AOC-L Form 406) for the respondent? (b) waive the service of the clerk's -33- notice of rehearing (AOC-L Form 406) upon the respondent? (c) waive service of the clerk's notice of rehearing (AOC-L Form 406) upon the respondent and special counsel? Conclusions: (1) Absent appropriate waiver of service, or consent to non-service, G.S. 122-58.1 1(a) requires actual service of the clerk's notice of rehearing in an involuntary commitment case upon both the respondent and the special counsel. (2) The special counsel in an involuntary commitment case involving an indigent respondent: (a) may accept service of the clerk's notice of rehearing (AOC-L Form 406) for the respondent; (b) waive service of the clerk's notice of rehearing (AOC-L Form 406) upon the respondent; (c) waive service of the clerk's notice of rehearing (AOC-L Form 406) upon both the respondent and special counsel. Under the present involuntary commitment statutes an initial period of involuntary commitment may not exceed ninety (90) days. Where continued involuntary commitment is indicated, a rehearing must be held to determine the need for continuation beyond the end of the initial period. G.S. 122-58.1 1(a). The second period of involuntary commitment cannot exceed one hundred and eighty (180) days, and, if continuation beyond that period appears necessary, the respondent must be afforded the opportunity of annual rehearings. G.S. 122-58.1 l(d),(e). -34- G.S. 122-58.1 1(a), with reference to the first rehearing, provides the clerk "...shall notify the respondent and his counsel of the time and place of the rehearing." Other provisions specify that the same procedures appertain to rehearings as those governing initial hearings and that respondents have the same rights as they have at initial hearings. G.S. 122-58.1 l(c),(e). On the topic of original hearings, G.S. 122-58.5 stipulates: "Notice must be given at least 48 hours in advance, unless waived by counsel for the respondent." Further indicative of the legislator's ideas as to the role of counsel, he is authorized to waive the presence of any respondent at a hearing (G.S. 122-58. 7(d)), and the right to rehearings after the first rehearing may be waived when "...the respondent through his counsel" files a written waiver of such right (G.S. 122-58. 11(e)). In order to fully protect the rights of indigents in the mental health facilities, the present statutes authorize the appointment of special counsel at each regional psycliiatric facility. These special counsel are required "...to represent at rehearings under this Article all indigent respondents" and their authority extends even to the initial determination of indigency. G.S. 122-58. 12(a). As the necessary implementation of the statutory requirement for notice, a particular form (AOC-L Form 406) has been devised and is utihzed for the purpose of effecting service upon respondents and special counsel. In accordance with normal practice, these notices are being served upon the respondents and special counsel by law enforcement officers. Apparently the present questions arose from a desire to obviate the monetary costs and man-hours expended in preparation and service of these notices where it is the desire of special counsel to waive these formalities. In view of the language used throughout Article 5 A, it is manifest that the General Assembly intended to vest considerable discretion and authority in the hands of the special counsel so as to enable them to represent the respondents' best interests. Thus, it would appear that the actions described in Conclusion (2) are permitted. -35- It is contemplated, of course, that where formal notice is waived, informal notification adequate to amply protect a respondent's rights will be made and that appropriate recordation thereof will be available to substantiate the absence of a deprivation of the rights of any respondent. In addition. Conclusion (2) is Hmited to a situation where only special counsel is involved and there is no individual counsel of record. Where there is individual counsel of record who is still representing a respondent, undoubtedly such individual counsel would be authorized to waive or accept service in the same fasliion as special counsel. However, in that type of situation, special counsel would not be authorized to take these actions on his own. Robert Morgan, Attorney General William F. O'Connell Assistant Attorney General 12 August 1974 Subject: Mental Health; Involuntary Commitment; Propriety of the "Qualified Physician" Acting As Physician In Charge of Treatment Requested by: Mr. R. J. Bickel Assistant Director for Administration Division of Mental Health Services N. C. Department of Human Resources Question: Can a duly hcensed medical doctor who is a full time mental health center staff member act as the quahfied physician responsible for committing to the mental health center inpatient unit a patient whom he has appropriately evaluated to be mentally ill or inebriate, and, at the same time, be the primary medical physician in charge of this person's treatment in the center's inpatient unit without violating the legal rights of the patient or the physician? -36- Conclusion: There is no legal impediment to, or violation of the legal rights of any party resulting from, the qualified physician responsible for committing a patient to the mental health center inpatient clinic also acting as the primary medical doctor in charge of the patient's treatment at the center's inpatient unit. In view of the medicolegal approach to handling involuntary commitment cases in North Carolina, Article 5 A of Chapter 122 of the General Statutes places considerable emphasis on the role of the "quahfied physician" in involuntary commitment proceedings. He is responsible for determining initially if the respondent meets the criteria for involuntary commitment and whether pre-hearing restraint is necessary. As a practical matter, it would appear that his testimony is normally the most vital - and probably controlling - evidence presented upon the subject of need for commitment and treatment. These facts, however, do not serve to incapacitate the qualified physician from acting as the physician in charge of the respondent's treatment when the respondent becomes an inpatient as the result of the involuntary commitment proceedings. The basic objective in involuntary commitment proceedings is to secure proper treatment for individuals who need such treatment. In other words, the motive behind these proceedings is a curative one rather than a punitive one. Thus, the very act of commitment, where appropriate, is an integral step in the proper therapeutic program for the respondent. The quahfied physician is acting in the best interest of the respondent at the time of the commitment proceedings just as he is acting in the patient's best interest in administering inpatient treatment to him. As a result, there is no legal problem presented by the medical doctor performing the dual functions described. Two additional comments, not legal in nature, are in order on this subject. The functioning of the physician in the commitment proceedings may, in some instances, adversely affect the rapport desired between the physician and the patient and there may be some deterioration of the patient's confidence in the physician as a result of what the respondent may think is derogatory testimony. -37- Conversely, though, it is obvious that when the qualified physician and the treating physician are one and the same, it is far more likely that the treatment rendered will be compatible with that envisioned at the time commitment for treatment is judicially determined to be appropriate. These, however, are administrative matters with no legal connotations which must be resolved in view of the resources available at the individual facility. Robert Morgan, Attorney General William F. O'Connell Assistant Attorney General 12 August 1974 Subject: Prisons and Prisoners; Work Release; Parole Commission Requested by: Mr. J. Mac Boxley Chairman Parole Commission Questions: (1) Is the Parole Commission responsible for granting work release privileges to persons committed to the Division of Prisons? (2) Is responsibility for granting work release privileges for persons sentenced to imprisonment for less than five years reserved in the Division of Prisons? Conclusions: (1) Yes (2) No Chapter 1262 of the Session Laws of 1973 (Second Session 1974), entitled "An Act to Further Effectuate the Reorganization of State Government #4.", provides in Sec. 8(b), to be codified as G.S. 143B-266, that: -38- "All releasing authority previously resting in the Commissioner and Commission of Correction with the exception of authority for extension of the hmits of the place of confinement of a prisoner contained in G,S. 148-4 is hereby transferred to the Parole Commission. Specifically, such releasing authority includes work release (G.S. 148-33.1) . . .provided the individual considered for work release . . . shall have been recommended for release by the Secretary of Correction or his designee." (Emphasis added) Thus, the General Assembly has unequivocally assigned to the Parole Commission, effective July 1, 1974, the responsibility for granting of work release privileges to persons committed to the Division of Prisons. G.S. 148-33.1 authorizes work release and subsections (a) and (b) made a distinction in work release granting procedures to persons sentenced to a term not exceeding five years. Formerly, G.S. 148-33. 1(a) did not require Board of Parole authorization for work release in the event the sentencing court had recommended work release to a person sentenced to a term not exceeding five years. If the term exceeded five years, Parole Board approval was required before the Department of Correction could place the individual on work release. G.S. 148-33. 1(b). In the absence of G.S. 148-33.1 there would be no basis for granting work release privileges to any inmate, regardless of the length of sentence. It would undoubtedly ease the work load of the Parole Commission if the Division of Prisons could treat work release privileges for inmates sentenced to less than five years as an extension of the limits of confinement under G.S. 148-4. Unfortunately, there is no way to bifurcate work release into under and over five-year categories so as to avoid the language of G.S. 143B-266 vesting "All releasing authority . . . Specifically . . . work release (G.S. 148-33.1) . . ." in the Parole Commission. There would be no authorization for release privileges were it not for G.S. 148-33.1. Therefore, the conclusion is inevitable that the Parole Commission is exclusively responsible for granting work -39- release privileges to all persons in the custody of the Division of Prisons, regardless of whether or not their sentences are less than or more than five years. Robert Morgan, Attorney General Jacob L. Safron Assistant Attorney General 13 August 1974 Subject: Requested by: Question: Health; Solid Waste Disposal; Chapter 130, Article 13B; G.S. 153A-292; ApplicabiUty of Local Ordinances Mr. R. Kason Keiger Town Attorney Kemersville Does Article 13B of Chapter 130 of the General Statutes, authorizing the Department of Human Resources to establish a statewide soUd waste disposal system, preempt the field of legislation and bar the enactment and enforcement of county zoning ordinances on the subject? Article 13B does preempt the field of legislation and bar the enactment and enforcement of county zoning ordinances on the subject; but the boards of county commissioners may, pursuant to G.S. 153A-292, enact ordinances governing solid waste disposal facilities established and operated by the boards. Chapter 153A, Article 18, Part 3, of the General Statutes pertains to county zoning authority. G.S. 153A-340 is the general grant of power which authorizes counties to enact zoning restrictions for the -40- Conelusion: purpose of promoting health, safety, morals or the general welfare. G.S. 153A-346 provides that if the regulations made under the authority of Part 3 impose higher standards than required under other statutes, ordinances and regulations, the regulations made under the authority of Part 3 control; if not, the other statutes, ordinances and regulations control. Chapter 130, Article 13B, of the General Statutes authorizes and directs the Department of Human Resources "to engage in research, conduct investigations and surveys, make inspections, and establish a statewide solid waste disposal program." The Department shall "(d)evelop a comprehensive program for implementation of safe and sanitary practices for the disposal of solid waste throughout the State." The Commission for Health Services "shall have authority to provide standards for the establishment, location, operation, maintenance, use and discontinuance of solid waste disposal sites and facilities." It is well established in this State that "(m)unicipal ordinances are ordained for local purposes in the exercise of a delegated legislative function, and must harmonize with the general law of the State. In case of conflict the ordinance must yield to the State law." Davis y. Charlotte, 242 N.C. 670, 89 S.E. 2d 406 (1955). It is also well established that "(w)here a field of general legislation is wholly taken over by the State, local zoning regulations or ordinances...may not interfere with its supreme authority in that field." C. J. S., Zoning, s. 10, p. 693. Thus, the question arises whether resolution of this matter rests upon a determination of conflict between State law and regulation and a county ordinance or whether resolution rests upon a finding of State preemption in the field of solid waste disposal. In Petition of Hilovsky, 108 A. 2d 705, 179 Pa. 118 (1954), the Pennsylvania Supreme Court addressed the question whether a zoning ordinance may prohibit the sale of intoxicating liquor by a properly licensed hotel. The Court concluded that "(i)f it be argued that dispensing of Hquor has a reasonable relation to police power, the answer is that even so municipalities may not invade the field of regulation which the State legislature has completely filled by its comprehensive liquor control act.... A municipality may not in -41- the guise of a zoning ordinance regulate the business of dispensing liquor." (at 706). In Staley v. Winston-Salem, 258 N.C. 244, 128 S.E. 2d 604 (1962), the North CaroHna Supreme Court considered a Winston-Salem ordinance which purported to regulate the sale of beer or wine. The Court reviewed the history of extensive State legislation in the field and concluded that "(t)o interpret it (the State law) so as to permit local communities to override and set at nought the conclusions reached by the State Board (concerning licensing) might well reproduce the condition deplored by the 1945 Legislature. Local ordinances cannot override statutes applicable to the entire State. (Citation omitted). Petitioners' right to operate the restaurant being conceded, the zoning ordinance could not set at nought a statewide statute permitting the sale of wines in such restaurants. Such sales are a permitted part of authorized business." (at 248 and 249). An analogy between liquor regulation and solid waste disposal regulation is appropriate. In Staley v. Winston-Salem, supra, the Court found clear legislative intent of State preemption of liquor regulation; G.S. 130-166.18(1) clearly directs the Department of Human Resources to develop a comprehensive program throughout the State for regulation of solid waste disposal. Therefore, it is the opinion of this Office that Article 13B of Chapter 130 preempts the field of soHd waste disposal regulation and bars the enactment and enforcement of county zoning ordinances on the subject which are in conflict or inconsistent with State regulations. It should be noted that nothing herein is intended to suggest that local zoning ordinances may not classify land to permit or prohibit use as a landfill. However, once land is appropriately classified, establishment, location, operation, maintenance, use and discontinuance of solid waste disposal sites and facilities are not subject to zoning regulations. The General Statutes do confer specific authority on counties to regulate by ordinance the removal, disposal, storage, collection, transportation and use of solid waste and the use of solid waste disposal facilities. G.S. 153A-132.1 authorizes a board of county commissioners to enact ordinances governing the removal and disposal of soHd waste in the rural area of the county beyond municipal corporate limits. G.S. 153A-136 provides that a county -42- may by ordinance regulate "the storage, collection, transportation, use, disposal, and other dispostion of solid wastes." The broad language is Hmited by an enumeration of specifics thereafter. The section proceeds to confer upon the counties the authority to regulate and hcense "persons wishing to commercially collect or dispose of solid wastes." Subsection (b) thereof states that the county ordinances shall be "consistent with and supplementary to" the rules and regulations of the Commission for Health Services. G.S. 153A-292 authorizes the board of county commissioners to estabhsh and operate solid waste collection and disposal facilities beyond municipal corporate hmits. The section states that "(t)he board may by ordinance regulate the use of such garbage, refuse, and solid waste disposal facilites; the nature of the solid wastes disposed of therein; and the method of disposal." Prior to the revision of Chapter 153 of the General Statutes by 1973 Session Law Chapter 822, the authority of the boards of county commissioners to regulate collection and disposal of garbage was contained in Article 22 of Chapter 153. Article 22 did not contain a provision similar to the one in G.S. 153A-292, quoted above. The revision of Chapter 153, effective February 1, 1974, was enacted subsequent to that of Article 13B of Chapter 130. The question is what effect the above-quoted provision has on the mandate contained in G.S. 130-166.18 for the Department of Human Resources to develop a statewide program for solid waste disposal. It is an elemental rule of statutory construction that statutes pertaining to similar matters are to be harmonized and that each statute is to be given its full effect. As previously stated, it is clear that the Legislature intended to estabhsh a comprehensive statewide program for solid waste disposal. It is also clear that the Legislature in G.S. 153A-292 authorized the boards of county commissioners to enact ordinances concerning the use of sohd waste disposal facilities established and operated by the boards. In G.S. 130-17, local boards of health are authorized to adopt more, but not less, stringent rules and regulations to protect and advance the public health where a peculiar local condition or circumstance so requires. As previously mentioned, G.S. 153A-346 provides that where county zoning ordinances and other statutes and ordinances conflict, that which provides the higher standard prevails. Although -43- these two statutes are not applicable to the question under discussion, they indicate legislative intent in similar circumstances. Therefore, it is the opinion of this Office that the clear authority of the boards of county commissioners to enact ordinances pertinent to soUd waste disposal systems under G.S. 153A-292 is limited by the statewide authority and responsibility of the Department of Human Resources to develop a comprehensive program for solid waste disposal. The boards of county commissioners may enact ordinances necessary for the establishment and operation of a facility but those ordinances involving sanitation practices and procedures may not be less stringent than the corresponding rules and regulations of the Commission for Health Services. Robert Morgan, Attorney General Robert R. Reilly Associate Attorney 16 August 1974 Subject: Requested by: Question: Conclusion: Motor Vehicles; Driver's License; Limited Driving Privileges; Bond Forfeiture Honorable E. E. Crutchfield District Court Judge A person has been charged with driving under the influence and has not been tried, his case having been nol prossed upon entry of a judgment absolute on a cash bond. Since, pursuant to G.S. 20-24{c), such forfeiture is equivalent to a conviction, may a limited driving privilege be issued as provided in G.S. 20-1 79(b)? No. G.S. 20-1 79(b)(1) reads in relevant part: -44- "Upon a first conviction only, the trial judge may when feasible allow a limited driving privilege or license to the person convicted for proper purposes reasonably connected with the health, education and welfare of the person convicted and his family...." Tlie entry of a judgment absolute on a cash bond is not a trial nor would the judge entering such order be the trial judge as contemplated in this section. It would appear that the proper procedure would be for the defendant to appear for trial on the charge. The bond forfeiture should be vacated in the event the defendant is tried and the court intends to issue the defendant a hmited driving privilege to avoid conflict with G.S. 20-24(c). Robert Morgan, Attorney General William W. Melvin Assistant Attorney General 16 August 1974 Subject: Mental Health; Mentally 111 or Inebriate Persons; Transportation to State Hospital; Responsibility of County Requested by: Honorable Charles M. Johnson Clerk of Superior Court Montgomery County Question: Conclusion: Is transportation of a mentally ill or inebriate person to a State hospital the responsibihty of the county? Transportation to or from a regional hospital outside the county is the responsibility of the county. -45- G.S. 122-58.14 provides for transportation of a respondent in an involuntary commitment proceeding to or from a clerk or magistrate, a qualified physician, a community mental health facility and a hearing shall be provided by the city or county depending upon whether the respondent is a resident of the city or a resident of the county outside the city limits. This statute provides in pertinent part as follows; "Transportation to or from a regional hospital outside the county, for any purpose, is the responsibility of the county, pursuant to G.S. 122-42." (Emphasis added) G.S. 1 22-42 provides that the cost and expenses of conveying every patient to any hospital from any county or of removing him from the hospital to the county from which he was hospitalized or to the county of his residence when released shall be paid by the treasurer of the county of residence upon order of the board of county commissioners. This statute further authorizes a county, in proper instances, to bring an action to recover such cost. Clearly the Legislature intended local transportation to be furnished by the city or county based upon the residence of the respondent. However, in language that is clear and in no manner ambiguous, responsibility for transportation of a respondent to a regional hospital outside the county is the responsibility of the county; hence, the foregoing conclusion. Robert Morgan, Attorney General Parks H. Icenhour Assistant Attorney General 16 August 1974 Subject: FaciUty Services; Licensing; Appeal From Denial or Revocation of License of a Home for the Aged and Infirm or a Family Care Home A6- Requested by: Questions: Mr. I. O. Wilkerson, Jr. Director Division of Facility Services Department of Human Resources In case of an appeal from denial or revocation of a license to operate a home for the aged and infirm or a family care home in this State, what official or agency is authorized to: (a) determine the appropriate rules governing such appeal? (b) furnish administrative support for processing such appeal? (c) conduct a hearing on such appeal? (d) determine the ultimate administrative action to be taken on such appeal? Conclusions: In case of an appeal from denial or revocation of a Ucense to operate a home for the aged and infirm or a family care home in this State: (a) the Commission of Social Services prescribes the appropriate rules and regulations governing such appeal; (b) the Division of Facility Services furnishes administrative support for processing such appeal; (c) the Director, Division of Facility Services, or a person designated by him, conducts the hearing on such appeal; -41- ; (d) as to a home for the aged and infirm, the Division of Facility Services is responsible for ultimate administrative action taken on the appeal, after review of the transcript of the hearing by the Division. As to a family care home, the Division of Facility Services is responsible for ultimate administrative action taken on the appeal after review of the transcript of the hearing by the Social Services Commission. Final revocation of the license of a home for the aged and infirm can be made only after confirmation thereof by the Division of Facihty Services and final confirmation of the revocation of a Ucense of a family care home can be made only after confirmation thereof by the Social Services Commission. Prior to the Organization Act of 1973, the State Department of Social Services was responsible for licensing the types of homes involved here, acting under rules and regulations adopted by the State Board of Social Services. The rules and regulations formulated by the Board charged the State Department of Social Services, in general, with administrative support of appeals processing, and required the State Commissioner of Social Services, or a person designated by him, to conduct appeals hearings. These rules further provided that ultimate determination on an appeal would be made by the State Department of Social Services after review of the transcript by the Department in the case of a home for the aged and infirm and after review of the transcript by the Board in the case of a family care home. Elsewhere in the rules, revocation of such licenses was prohibited except after final confirmation of the first type of Ucense described by the Department and final confirmation of the revocation of the second type by the Board. These rules and regulations, as originally promulgated, still contain the same language, and, by virtue of G.S. 143B-20, retain their legal efficacy. -48- Under the Organization Act of 1973, however, the position of Commissioner of Social Services and the Department of Social Services were aboUshed, while the Social Services Commission was established. See G.S. 143B-153 through G.S. 143B-156. Since the effective date of the Organization Act, the Social Services Commission is responsible for promulgation of rules and regulations for licensing and inspection of the homes under discussion (G.S. 143B-153), and the Department of Human Resources is statutorily responsible for the hcensing and inspecting of these homes, acting under the rules and regulations of the Social Services Commission (G.S. 108-77). Giving additional illumination upon the question of assumption of tlie responsibihties prescribed in the licensing rules and regulations, G.S. 143B-7 provides as follows: "§143B-7. Continuation o//w«cr/o«s. -Each principal State department shall be considered a continuation of the former agencies to whose power it has succeeded for the purpose of succession to all rights, powers, duties, and obligations of the former agency. Where a former agency is referred to by law, contract, or other document, that reference shall apply to the principal State department now exercising the functions of the former agency." There can be no question that the hcensing rules and regulations involved here are "documents" within the context of G.S. 143B-7. Thus, applying this section to the present problems, it is clear that the responsibilities and authority previously vested in the Board of Social Services and the Department of Social Services devolved upon the Secretary of Human Resources and the Department of Human Resources, respectively, by virtue of the Organization Act. Subsequent to the effective date of the Organization Act, the Secretary of Human Resources, acting under the authority of G.S. 143B-10, promulgated directives which created a Division of Facility Services within his Department, appointed a Director of this new Division, and transferred the hcensing functions of the types of homes under scrutiny to this new Division. (See Department of -49- Human Resources directives numbers 1 1-73, 1 1-73 (Change 2), 1 1-73 (Change 3), and 14-73). These transfers and delegations of authority have resulted in the responsibilities and authorizations for actions on appeals as described in Conclusions (a) through (d) above. Robert Morgan, Attorney General WiUiam F. O'Connell Assistant Attorney General 16 August 1974 Subject: Requested by: Question: State Departments, Institutions and Agencies; Aid to the BUnd, Chapter 111 of the General Statutes; Legal Authority of the Division of Services for the Blind to Enter into Contract with Manufacturer's Representative Under the Specific Exception in G.S. 1 1 1-27.1 Exempting the Executive Budget Act from Applicability to Such Contractual Arrangement. Mr. Stephen A. Johnson Business Affairs Section Division of Services for the BUnd Department of Human Resources May the Business Enterprises Program, Business Affairs Section of the Division of Services for the BUnd enter into a contractual agreement with a manufacturer's representative/broker for the sale of products produced by the clients of the Self-Employment Program without violating the Purchases and Contracts Section of the Executive Budget Act? Conclusion: The Business Enterprises Program, Business Affairs Section of the Division of Services -50- for the Blind may enter into a contractual agreement with a manufacturer's representative/broker for the sale of products produced by the clients of the Self-Employment Program without violating the Purchases and Contracts Section of the Executive Budget Act. G.S. 111-27.1 provides that the Department of Human Resources is authorized to conduct activities "to promote the rehabilitation and employment of the Wind, including the operation of various business enterprises suitable for the blind to be employed in or to operate." The Executive Budget Act which provides in G.S. 143-49 that the Director of Administration is to contract for "all contractual services and needs of State government, or any of its departments, institutions, or agencies; or to authorize any department, institution, or agency to purchase or contract for such services," applies "to the operation of such (blind) enterprises as to all appropriations made by the State to aid in the organization and establishment of such businesses." G.S. 111-27.1 However, there is a specific exception carved out of G.S. 1 1 1-27.1 respecting "(P)urchases and sales of merchandise or equipment, the payment of rents and wages to blind persons operating such businesses, and other expenses thereof, from funds derived from local subscriptions and//-om the day by day operations" which "shall not be subject to the provisions of law regulating purchases and contracts, or to the deposit and disbursement thereof appUcable to State funds but shall be supervised by the Department of Human Resources." (Emphasis supplied) Since this manufacturer's representative would be selling the merchandise of the clients of the Self-Employment Program and would derive his remuneration from the sales he is able to make, it is our opinion that a contract between the Division of Services for the Blind and this party for such services would fall within the purview of the exception embodied in G.S. 111-27.1. The compenstion of the manufacturer's representative can be considered an expense of the sale of the client's merchandise to be paid from the day by day operations, i.e., commission on the amount of sales produced. Accordingly, under G.S. 111-27.1 the contractual -51- arrangement sought need only be supervised by the Department of Human Resources and is not subject to the Purchases and Contracts Section of the Executive Budget Act. Robert Morgan, Attorney General William Woodward Webb Assistant Attorney General 28 August 1974 Subject: Requested by: Questions: Conclusions: Mental Health; Voluntary Admissions; Involuntary Return, Involuntary Commitment, and Discharge of Escapee From A Treatment FaciUty Mr. R. J. Bickel Assistant Director of Administration Division of Mental Health Services Department of Human Resources If a patient who has been voluntarily admitted to a North Carolina treatment facility escapes from that facility: (a) may he be involuntarily returned to that facility by a law enforcement officer upon request by the facility? (b) may involuntary commitment proceedings be instituted against him during his absence, and, if so, by whom? (c) if the escapee voluntarily returns to the faciUty but still desires to be discharged therefrom, do the usual provisions for release apply? If a patient who has been voluntarily admitted to a North Carolina treatment -52- facility escapes from that facility: (a) he may be involuntarily returned to that facility by a law enforcement officer upon the request of the facility, although there is no absolute requirement that his return be so requested. (b) involuntary commitment proceedings may be instituted against him during his absence by any person who has sufficient knowledge of the situation upon which to base the required affidavit. (c) if the escapee voluntarily returns to the facility but still desires to be discharged and involuntary commitment proceedings are not instituted, he must be discharged within seventy-two (72) hours from the time of execution of his written request for release. G.S. 122-56.3 makes it very clear that a written request for release is a prerequisite for the release of a patient who has been voluntarily admitted to a North Carolina treatment facility and that the facihty may hold the patient for a period of seventy-two (72) hours after the submission of such request. In the case of a minor, this request for release must be executed by a parent, person standing in loco parentis or guardian, as appropriate. See G.S. 122-56.5 and opinion of the Attorney General to Mr. R. J. Bickel, Assistant Director for Administration, Division of Mental Health Services, dated 14 May 1974. Thus, since the requisite statutory formalities have not been complied with in the case of an escapee, the facility may secure the services of a law enforcement officer to obtain his return if such is appropriate. The governing statutes do not require that the return of an escapee be requested, however, and it would seem that the proper course in a given case would be based upon the situation present there. The action taken should be based upon a recognition that the admission of the patient was originally a voluntary one and that, -53- absent other action, the patient may secure his release from the facihty seventy-two (72) hours after return by making application therefor. Other factors involved in making an intelligent determination of the proper course of action would be whether the original voluntary admission was really in Heu of involuntary commitment, and whether the individual's present mental condition is severe enough to meet the requirements for involuntary commitment and to indicate the propriety of such commitment. In some cases, if involuntary commitment is an order, then initiation of these proceedings-with the resultant taking into custody of the patient in accordance with G.S. 1 22-58.3-might well be a simpler, more effective course than seeking his return as an escapee. If involuntary commitment appears appropriate, G.S. 122-58.3 authorizes "...Any person who has knowledge of a mentally ill or inebriate person who is imminently dangerous to himself or others" to execute the requisite affidavit which serves as the cornerstone of this type of proceeding. It would seem that personnel at the treatment facihty who have recently observed the patient would be in a singularly good position to execute the affidavit, with no particular functionary being preferred over another as the affiant. Of course, in some instances, a member of the family or other person might be more suitable to perform this act, again depending on the facts present. Where the escapee is a minor, it would seem that the parent, person standing in loco parentis or guardian would normally, as a practical matter, be the determiner as to whether the escapee should be returned in his capacity as a voluntary admittee. Where involuntary commitment appears appropriate, though, while the wishes of the parent, etc., would be worthy of serious consideration, such would not legally preclude the initiation of involuntary commitment proceedings, where appropriate. James H. Carson, Jr., Attorney General William F. O'Connell Assistant Attorney General -54- 28 August 1974 Subject: Requested by: Questions: Conclusions: Mental Health; Criminal Law and Procedure; Involuntary Commitment of a Defendant Sent to a Mental Health Facility Under G.S. 122-83 Mr. Michael Rieder Regional Administrator Forensic Services Division of Mental Health Services Department of Human Resources (1) What findings must be made by a judge in order to warrant placing a defendant in a State mental health facility pursuant to G.S. 122-83? (2) Does G.S. 122-83 apply in cases where a defendant is charged with either a misdemeanor or a felony and does the duration of the commitment depend upon the maximum sentence permissible for the crime involved? (3) What, if any, proceedings are necessary after the arrival at a State mental health faciUty of a defendant who has been sent there under the provisions of G.S. 122-83? (4) When charges are still pending against a defendant sent to a State mental health facihty under the provisions of G.S. 122-83, should the court be notified if his condition changes so that he is mentally capable of standing trial or discharge from the facihty is appropriate? (1) The minimum necessary finding to warrant sending a defendant to a State mental health facility pursuant to -55- G.S. 122-83 is a finding that the defendant is mentally ill at the time of arraignment and for that reason cannot be tried for the crime alleged. (2) G.S. 122-83 applies regardless of whether a felony or misdemeanor is involved and the permissible punishment for the crime involved is not controlling of the period of commitment. (3) The proceedings, time Umitations, and provisions for rehearings, set forth in Article 5 A, Chapter 122, General Statutes of North Carolina should be followed for the processing of a defendant who has been sent to a State mental health facility pursuant to G.S. 122-83. (4) When charges are still pending against a defendant placed in a State mental facility pursuant to G.S. 122-83, the appropriate court should be notified by the facihty if a change in the defendant's condition indicates that he is mentally capable of being tried or that he should be discharged from the facihty. In pertinent part, G.S. 122-83 provides as follows: "All persons who may hereafter commit crime while mentally ill, and all who, being charged with crime, are adjudged to be mentally ill at the time of their arraignment, and for that reason cannot be put on trial for the crimes alleged against them, shall be sent by the court before whom they are or may be arraigned for trial, when it shall be ascertained by due course of law that such person is mentally ill and cannot plead, to any State mental health facility in North Carolina, and they shall be confined therein under the rules and regulations prescribed by the Commission for -56- Mental Health Services under the authority of this Article, and they shall be treated, cared for, and maintained in said facility..." Reading of this Section immediately reveals several significant things. First, there is no requirement as to the nature, type or degree of crime charged. Second, there are no specific requirements in the language of the Section for an evaluation by the hospital to determine if the defendant is mentally capable to stand trial or mentally responsible for his crime nor is there a specific directive that the hospital report back to the court on this subject. Third, no time limitations are provided in the language of the Section, so that, under the literal wording thereof, open-end detention would be permitted absent some sort of additional proceedings or action. This Office has previously had occasion to examine the provisions of G.S. 122-84 and G.S. 122-91 dealing, inter alia, with the general subject of disposition of defendants lacking mental capacity or mental responsibility to stand trial. See 43 N.C.A.G. 261 (1973). There, it was concluded that the proceedings authorized by Article 5 A, Chapter 122, General Statutes of North Carolina should be utilized for involuntary commitment of individuals falling under the provisions of those sections. The same rationale involved there is proper here. There is a serious question as to whether G.S. 122-83 was ever intended to serve as the actual vehicle of commitment without implementation as to procedures being derived from other sources. See State v. Lewis, 11 N.C. App. 226, pp. 233-234 (1971). Though the Court of Appeals, under the facts of Lewis, felt that it was unnecessary to decide that specific question, it clearly ruled that some form of "due process" must be insured to defendants in these situations (op. cited at p. 238), and tacitly recognized that open-end commitment without limitation as to time and conditions would be improper (op. cited at pp. 240-241). Article 5A has been rewritten by the General Assembly since the date of the opinion set forth at 43 N.C.A.G. 261. Therefore, some of the language of the old statute relied upon in our prior opinion is no longer present in the current statute. However, the new Article 5 A contains the following policy declarations indicative of legislative intent : -57- "§122-58.1. Declaration of policy.-W is the policy of the State that no person shall be committed to a mental health facility unless he is mentally ill or an inebriate and imminently dangerous to himself or others; that a commitment will be accomplished under conditions that protect the dignity and constitutional rights of the person; and that committed persons will be discharged as soon as a less restrictive mode of treatment is appropriate." (Emphasis supplied) Based upon this language and relying upon judicial decisions in this area-notably Jackson v. Indiana, 406 U.S. 715, 718, (1972), and with particular reference to the portions thereof quoted in 43 N.C.A.G. 261 at p. 263-it is clear that open-end, unUmited detention of a criminal defendant based upon his capacity to stand trial would be improper and illegal. Examining the language of G.S. 122-83, it is also clear that a defendant may still "be sent" to a State mental facility under that Section upon a finding by the judge that he is so mentally ill at the time of his arraignment that he cannot be tried. Obviously, under settled North Carolina law, in arriving at that conclusion the judge would have to find that this individual was incapable of understanding the nature of the proceedings and of participating in his own defense. However, upon arrival at the facility, the only procedures available for processing this defendant are found in the provisions of Article 5A, Chapter 122, and the provisions of that Article, including the time limitations, provisions for future examination of the case and rehearings thereon, should be followed. It would appear that, normally, G.S. 122-83 will be utiUzed in situations wherein the pending charge against the defendant has not been dismissed or otherwise disposed of. Therefore, though the section contains no specific language requiring a report back to the judge, incorporation of such a directive in the order of the court would be entirely appropriate. Further, even in the absence of such a specific directive, notification of the court of the defendant's condition, of his ability to stand trial, and of any plans to discharge him from the faciUty should be made to the court issuing the order under the provisions of G.S. 122-83. -58- James H. Carson, Jr., Attorney General William F. O'Connell Assistant Attorney General 28 August 1974 Subject: Requested by: Questions: Conclusions: Public Contracts; Counties; Lease-Purchase Contract Subject to Public Bidding Requirements of Article 8, Chapter 143 Mr. Bruce Yarrington Assistant to County Administrator Moore County (1) Does a county have authority to purchase fire trucks and other needed equipment under a lease-purchase contract? (2) Must such contract comply with the provisions of Article 8, Chapter 143 of the General Statutes relating to public bids? (1) Yes. (2) Yes. G.S. 153A-158 authorizes counties to acquire real and personal property by gift, grant, devise, bequest, exchange, purchase, lease, or any other lawful method, and the county may acquire the fee or any lesser interest in such property. G.S. 153A-165 authorizes counties to lease, as lessee, with or without option to purchase, any real or personal property for any authorized public purpose. A lease of personal property with an option to purchase is subject to Chapter 143, Article 8 of the General Statutes. G.S. 143-129 specifies when public bidding is required. Thus if the cost of the fire truck or equipment is within the cost requirements -59- of G.S. 143-129, the lease-purchase contract must be let on formal bids. Informal bids could be required pursuant to G.S. 143-131. Of course, G.S. 152-28(b) is applicable to such contracts and appropriations must appear in the budget for the sum to fall due during the fiscal year. James H. Carson, Jr., Attorney General James F. Bullock Deputy Attorney General 28 August 1974 Subject: Requested by: Questions: State Departments, Institutions, and Agencies; Chapter 1318 of the 1973 Session Laws, Second Session; Direct Grants to Economic Opportunity Agencies from the Department of Human Resources Mr. David T. Flaherty Secretary Department of Human Resources (1) Does the Department of Human Resources have the authority under Chapter 1318, 1973 Session Laws to make allocations of the State appropriations provided in Section 9 to eligible community action agencies in the absence of notice of termination of funding by the federal Office of Economic Opportunity? (2) Are allocations to Caswell Action Committee, Inc., and/or Rockingham County Fund, Inc., authorized under Chapter 1318 in the absence of notice of termination of funding by the federal Office of Economic Opportunity to the eligible community action programs in North Carolina? -60- Conclusions: (1) The Department of Human Resources does not have the authority under Chapter 1318, 1973 Session Laws to make allocations of the State appropriations provided in Section 9 to eligible community action agencies in the absence of notice of termination of funding by the federal Office of Economic Opportunity. (2) Allocations to Caswell Action Committee, Inc., and/or Rockingham County Fund, Inc., are not authorized under Chapter 1318 in the absence of notice of termination of funding by the federal Office of Economic Opportunity to the eUgible community action programs in North Carolina. The preamble to Chapter 1318 of the 1973 Session Laws, Second Session, makes explicit that the financial obligation to provide direct grants to economic opportunity agencies is contingent upon a loss of federal financial assistance from the United States Office of Economic Opportimity: "Whereas, continued federal assistance from the United States Office of Economic Opportunity (OEO) for these agencies is in grave doubt beyond June 30, 1974; and "Whereas, the State should provide standby funds to assist these local agencies in the event federal OEO funds are cut off..." (Emphasis supplied) This conclusion is supported by other sections of Chapter 1318: "Sec. 4. Eligibility for State financial assistance.-The North Carolina Department of Human Resources is directed to allocate funds provided by this act for basic administrative costs to agencies which on June 30, 1973, were receiving funds from OEO as community -61- action agencies under 42 U.S.C.A. 2808, or their legal successors ('eligible agencies'). Caswell Action Committee, Inc., and Rockingham County Fund, Inc., are deemed to be eligible agencies for this purpose. "Sec. 5. Allocation of State financial assistance-Funds to eligible agencies shall be allocated as follows: (1) An eUgible agency wishing to receive funds under this act must apply to the Department for said funds within 60 days after notice of termination of funding provided to said eligible agency for administrative costs by OEO or its successor." (Emphasis supplied) Sections 5(3) and 9 provide additional support for our conclusion; "Within 90 days, but after 60 days from notice of termination by OEO of funding for the administrative costs of eligible agencies..." (§5(3), Chapter 1318) (Emphasis supplied) "...If sufficient funds for the basic administrative costs of the economic opportunity agencies in North CaroUna are made available to these agencies from the federal government by July 1, 1974, this appropriation shall revert to the General Fund..." (§9, Chapter 1318) Finally, if there are any doubts remaining as to the clear intent of the General Assembly with respect to the disbursement of funds appropriated by Chapter 1318, they should be quickly resolved by reference to Section 5(6) providing: "An otherwise eligible economic opportunity agency may quaUfy for funds under this act only after notice of termination of funding provided for administrative costs by OEO or its successor." (Emphasis supplied) Although there are other duties and responsibilities reposed in the Department of Human Resources by Chapter 1318 (in particular, -62- Section 3(3) and (4)) whose performance is not contingent on the loss of federal funds, there is no question but that as a condition precedent to allocating State funds appropriated by this act, there must be at least a notice of termination of funding to the eUgible community action agency for administrative costs by OEO or its legal successor, if not an actual termination. Caswell Action Committee, Inc., and Rockingham County Fund, Inc., under Section 4 of Chapter 1318 are simply added to the pool of economic opportunity agencies eligible for State funds should their federal financial assistance for administrative costs be cut off. James H. Carson, Jr., Attorney General William Woodward Webb Assistant Attorney General 3 September 1974 Subject: Motor Vehicles; Emergency Warning Devices; Civil Air Patrol Emergency Service Vehicles Requested by: Major Jack D. Cabe North CaroHna State Highway Patrol Question: Are Civil Air Patrol emergency service vehicles authorized to use emergency warning devices when actually engaged in emergency search and rescue operations? Conclusion: Yes The North Carolina Wing of the Civil Air Patrol was created pursuant to Chapter 167 of the General Statutes of North Carohna and transferred to the Department of MiUtary and Veterans Affairs in 1973 by General Statute 143B-248. The Civil Air Patrol is an auxiliary of the United States Air Force and is charged with the responsibility of conducting air search and -63- ground rescue and recovery of persons involved in aircraft accidents and as a part of the civil defense preparedness group has responsibility for rescue and recovery in case of natural or man-made disasters and other emergency situations. Taking into consideration the nature and the duties of the Civil Air Patrol in light of General Statutes 20-125, 20-156 and 20-157, we are of the opinion emergency service vehicles of the Civil Air Patrol when actually engaged in emergency service and rescue operations fall within the purview of the aforesaid sections of the General Statutes of North Carolina. James H. Carson, Jr., Attorney General William W. Melvin Assistant Attorney General 3 September 1974 Subject: Requested by: Mental Health; Involuntary Commitment and Voluntary Admissions; Consent to Surgery on Mental Patients; Apphcability of Patients' Rights Bill to Local General Hospitals Dr. N. P. Zarzar Director Division of Mental Health Services N. C. Department of Human Resources Questions: (1) What section of the North Carolina statutes is controlling with regard to the consent required for surgery on patients voluntarily admitted or involuntarily committed as mentally ill persons or inebriates under the provisions of Article 4 or Article 5A of Chapter 122 of the General Statutes? -64- (2) Does the same section control on the subject of consent for surgery where the patient has been voluntarily admitted or involuntarily committed to a local general hospital under Article 4 or Article 5A of Chapter 122 of the General Statutes? Conclusions: (1) G.S. 122-55.6 is the controlling section of the North Carolina statutes with regard to the consent required for surgery on patients voluntarily admitted or involuntarily committed as mentally ill persons or inebriates under the provisions of Article 4 or Article 5A of Chapter 122 of the General Statutes. (2) G.S. 122-55.6 does control on the subject of consent for surgery where the patient has been voluntarily admitted or involuntarily committed to a local general hospital under Article 4 or Article 5A of Chapter 122 of the General Statutes. G.S. 122-55.6, which was enacted as a part of the so-called "Patients' Rights Bill" by the 1973 Session of the General Assembly, affords the following guarantees to patients in "treatment facilities": "Treatment involving...surgery, other than emergency surgery, shall not be given without the express and informed written consent of the patient if competent, otherwise of the patient and guardian as hereinafter defined, unless the patient has been adjudicated an incompetent under Chapter 35 of the General Statutes and has not been restored to legal capacity, in which case express and informed written consent of his guardian or trustee appointed pursuant to Chapter 35 of the General Statutes must be obtained. Such consent may be withdrawn at any time by the person who gave such consent." It is interesting to note that G.S. 122-56.5 contains virtually the -65- same provisions relative to persons who have been voluntarily admitted to treatment facilities and who have been adjudicated non compos mentis. For purpose of the Patients' Rights Bill, G.S. 122-36(g) contains the following illuminating language as to what is to be considered a treatment facility: "(g) The words 'treatment facility' shall mean any hospital or institution operated by the State of North Carolina and designated for the admission of any person in need of care and treatment due to mental illness or mental retardation, any center or facility operated by the State of North Carolina for the care, treatment or rehabilitation of inebriates, and any community mental health clinic or center administered by the State of North CaroHna." With regard to voluntary admissions of mental patients, G.S. 122-56. 2(b) specifies: "(b) the words 'treatment facility' as used in this article, mean any hospital or institution operated by the State of North Carolina and designated for the admission of any person in need of care and treatment due to mental illness or inebriety, and any community mental health clinic or center operated in conjunction with the State." As to involuntary commitment, the statutes do not speak in terms of a "treatment facility". According to the language of G.S. 122-58. 8(b), involuntary commitment is authorized: "...at a mental health facility, public or private, designated or licensed by the Division of Mental Health Services. Treatment at a private faciUty shall be at the expense of the respondent to the extent that such charges are not disposed of by contracts between the county and the private facility." Some question has arisen as to the effect on mental patients of the provisions of G.S. 130-191 which deals with "inmates" of "any -66- penal or charitable hospital or institution of the State of North CaroUna " There are some minor differences between the provisions of that statute and G.S. 122-55.6. However, it is noted that GS 130-191 had its genesis in 1919 and that the latest specific change thereto was engrafted by the General Assembly m 1957 It would appear that the later more specific provisions of G S 122-55 6 dealing with the Umited question of mental patients admitted or committed to treatment facilities, is the controlhng statute and will prevail where there are conflicts between it and G.S. 130-191. In fulfllling the requirements levied under current statutes for the care and treatment of mentally ill patients and inebriates, utihzation of local general hospitals as the facilities for inpatient care has become a common place occurrence throughout the State This use is in keeping with the basic desire to treat the patient locally , where possible, and plans involving such use are formulated under the authorization of G.S. 122-58.16. In such instances clearly the patients voluntarily admitted or involuntarily committed to the local general hospitals should be given the same rights as those who are placed in facilities operated by governmental entities. As a result, the provisions of G.S. 122-55.6 afford the statutory guidance o local general hospitals concerned with the problem of consent to surgery on patients voluntarily admitted or involuntanly committed to them under the provisions of Article 4 or Article 5 A. James H. Carson, Jr., Attorney General William F. O'Connell Assistant Attorney General 3 September 1974 Subject: Requested by: Mental Health; Area Mental Health Boards; Authority to Set Salaries of Employees Mr. R. J. Bickel Deputy Director for Administration Division of Mental Health Services N. C. Department of Human Resources -67- Questions: (1) In an area mental health program encompassing only a single county, who has the authority to set the wages of employees of the area mental health program? (2) In an area mental health program encompassing multiple counties, who has the authority to set the wages of employees of the area mental health program? Conclusions: (1) In an area mental health program encompassing only a single county, the area mental health board has the authority to set the wages of employees of the area mental health program. (2) In an area mental health program encompassing multiple counties, the area mental health board has the authority to set the wages of employees of the area mental health program. By virtue of Article 2C, Chapter 122, General Statutes of North Carolina, the Legislature authorized the establishment of area mental health programs to serve the population of their respective geographic entities. These areas may include single or multiple counties. The present questions have apparently arisen because of uncertainty as to whether employees of the area mental health programs are "county employees" falling within the purview of G.S. 126.9. Each area mental health program is administered by an area mental health board which "...constitutes an entity created by the legislature with governmental functions." See 42 N.C.A.G. 120 (1972). This Office has previously taken the position that an area mental health program is under the authority and control of its mental health board and not the county board or boards of commissioners. See 41 N.C.A.G. 778 (1972). By virtue of the basic rationale involved in the two prior opinions of this Office to the effect that area mental health programs are -68- separate entities, it must, of necessity, follow that the employees involved are employees of the area program rather than county employees. It must be recognized, of course, that the actions of the area mental health boards are subject to the rules and regulations of the State Commission for Mental Health Services and are required to act jointly with the Department of Human Resources in developing annual plans. See G.S. 122-35. 20(e). Of great significance in interpreting the intent of the General Assembly are the provisions of G.S. 122-35. 20(a) through (d). Therein, it is provided that the boards of county commissioners shall have representation on the area mental health board, and, in some instances, can actually serve as the area mental health board or appoint all members thereof. Thus, it is apparent that it was the legislative intent that the area mental health program be a separate entity but yet be in a position to receive the benefit of some guidance and advice from the boards of county commissioners. James H. Carson, Jr., Attorney General William F. O'Connell Assistant Attorney General 5 September 1974 Subject: Constitutional Law; Executive Powers; Authority of the Governor of North Carolina to Transfer the Office of Child Development from the North Carolina Department of Administration to the North Carohna Department of Human Resources and the State Office of Economic Opportunity from the North Carolina Department of Human Resources to the North Carolina Department of Administration; Article III, Section 5(10) of the Constitution of North Carolina. Requested by: Honorable James E. Holshouser, Jr. Governor of North Carolina -69- Questions: (1) May the Governor of North CaroHna transfer the Office of Child Development from the North Carolina Department of Administration to the North Carolina Department of Human Resources and the State Office of Economic Opportunity from the North Carolina Department of Human Resources to the North Carolina Department of Administration? (2) Does the Executive Order effecting such transfer have to be submitted to the General Assembly for consideration? Conclusions: (1) The Governor of North Carohna may transfer the Office of Child Development from the North Carolina Department of Administration to the North Carolina Department of Human Resources and the State Office of Economic Opportunity from the North Carolina Department of Human Resources to the North CaroHna Department of Administration. (2) The Executive Order effecting such transfer does not have to be submitted to the General Assembly for consideration. Article HI, Section 5(10) of the Constitution of North Carolina provides, inter alia: "...the Governor may make such changes in the allocation of offices and agencies (of the State) and in the allocation of those functions, powers, and duties as he considers necessary for efficient administration. If those changes affect existing law, they shall be set forth in executive orders, which shall be submitted to the General Assembly not later than the sixtieth calendar day of its session..." -70- The Governor is undoubtedly empowered to effect the transfer of the Office of Child Development from the North Carolina Department of Administration to the North Carolina Department of Human Resources. Moreover, since such transfer in no way affects existing law, no Executive Order need be submitted to the General Assembly. The transfer of the State Office of Economic Opportunity from the Department of Human Resources to the Department of Administration is only shgh
Object Description
Description
Title | North Carolina Attorney General reports |
Contributor | North Carolina. Department of Justice. |
Date | 1974; 1975 |
Subjects |
Attorneys general's opinions--North Carolina Automobiles--Transportation--Law and legislation Children Criminal law Election law Genealogy Local government Mental health laws Public health Public officers--North Carolina Public welfare Taxation--Law and legislation |
Place | North Carolina, United States |
Time Period | (1945-1989) Post War/Cold War period |
Description | Opinions of the Attorney General. |
Publisher | Raleigh, N.C. :Dept. of Justice,1970- |
Agency-Current | North Carolina Department of Justice |
Standard Number | 0364-362X |
Rights | State Document see http://digital.ncdcr.gov/u?/p249901coll22,63754 |
Physical Characteristics | v. ;23 cm. |
Collection | Health Sciences Library. University of North Carolina at Chapel Hill |
Type | text |
Language | English |
Format | Reports |
Digital Characteristics-A | 14891 KB; 414 p. |
Digital Collection |
Ensuring Democracy through Digital Access, a North Carolina LSTA-funded grant project North Carolina Digital State Documents Collection |
Digital Format | application/pdf |
Title Replaces | North Carolina. Department of Justice..Biennial report of the Attorney General of the State of North Carolina |
Audience | All |
Pres File Name-M | pubs_edp_biennialreportattorneygeneral19741975.pdf |
Pres Local File Path-M | \Preservation_content\StatePubs\pubs_edp\images_master\ |
Full Text | THE LIBRARY OF THE UNIVERSITY OF NORTH CAROLINA THE COLLECTION OF NORTH CAROLINLVNA C340 N87a 1974-75 p^ UNWEBSITY OF N CAT CHAPEL Hia 00033947285 FOR USE ONLY IN THE NORTH CAROLINA COLLECTION 44 N.C.A.G. No. 1 Pages 1 through 200 NORTH CAROLINA ATTORNEY GENERAL REPORTS Opinions of the Attorney General July 1, 1974 through December 31, 1974 < MAILING ADDRESS: Post Office Box 629 Raleigh, North CaroUna 27602 RUFUS L. EDMISTEN Attorney General Harry W. McGalliard Chief Deputy Attorney General J979/7, Jean A. Benoy James F. Bullock I. Beverly Lake, Jr. Andrew A. Vanore, Jr. Robert Bruce White, Jr. Deputy Attorneys General Charles H. Smith Administrative Deputy Attorney General Howard A. Kramer Deputy Attorney General for Legal Affairs John A. Elmore, II Special Assistant to the Attorney General Myron Banks James L. Blackburn George W. Boylan William F. Briley Lester V. Chalmers, Jr. H. Al Cole, Jr. T. Buie Costen Donald A. Davis Sidney S. Eagles, Jr. Roy A. Giles, Jr. Guy A. Hamlin Claude W. Harris Ralf F. Haskell Charles R. Hassell, Jr. Charles M. Hensey 1. B. Hudson, Jr. Parks H. Icenhour Keith L. Jarvis Rafford E. Jones Richard N. League James E. Magner, Jr. John R. B. Matthis William W. Melvin William F. O'Connell Conrad O. Pearson William B. Ray M. Ann Reed Millard R. Rich, Jr. James B. Richmond Walter E. Ricks, III Jacob L. Safron Alfred N. Salley John M. Silverstein Norman L. Sloan Eugene A. Smith Edwin M. Speas, Jr. Robert G. Webb Wm. Woodward Webb Thomas B. Wood Assistant Attorneys General John W. McDevitt, Consultant Herbert Lamson, Jr., Claims Attorney Charles J, Murray, Revisor of Statutes Noel L. Allen Archie W. Anders Jesse C. Brake E. H. Bunting, Jr. David S. Crump Robert P. Gruber Zoro J. Guice Charles D. Heidgerd Alan S. Hirsch Richard F. Kane Robert W. Kaylor Sandra M. King Wilton E. Ragland, Jr. William A. Raney, Jr. Robert R. Reilly Thomas M. Ringer, Jr. Jerry J. Rutledge James M. Wallace, Jr. Raymond L. Yasser Associate Attorneys 10 July 1974 Subject: Requested by: Question: Conclusion: State Departments, Institutions and Agencies; Department of Correction; Amendment of Sentence Mr. James P. Smith Senior Administrative Assistant Department of Social Rehabilitation & Control Is the Department of Correction required to reduce an inmate's prison sentence as the result of post term court orders? No. Neither the statutory nor the common law of the State of North Carolina contains any provision for post sentence hearings on reduction of sentence and once a term of court comes to an end, the judge is without authority to vacate or modify the judgment. In State v. Lewis, 226 N.C. 249, 37 S.E. 2d 691 (1946), the Supreme Court of North Carolina stated: "After a defendant has begun the service of his term, or at least when that takes place after the adjournment of the court, it is beyond the jurisdiction of the judge to alter it or to interfere with it in any way." (at 251) More recently, in State v. Lawrence, 264 N.C. 220, 141 S.E. 2d 246 (1956), the Supreme Court reaffirmed this holding by stating that: ". . .After the term ended the judge was without authority to vacate or modify the judgment ..." (at 223) See. also. State v. Godwin, 210 N.C. 447, 187 S.E 2d 560 (1936). Regarding the District Courts, the Court stated in State v. Lawrence, supra: "Where the length of the term of an inferior court is not expressly stated by statute other than it shall continue until the .business before it is disposed of, the term cannot last beyond the time fixed for the next succeeding term, unless perhaps a trial in actual progress should extend it . . . ." (at 223) Furthermore, once the term of court comes to an end, only the Governor of this State may grant reprieves, commutations and pardons. In State v. Lewis, supra, the Supreme Court directly spoke to this issue by stating: "The power of pardon, parole or discharge during the term of imprisonment is by the Constitution the exclusive prerogative of the Governor." (at 251) Although State v. Lewis, supra, refers to Article III, Sec. 6 of the North CaroUna Constitution of 1868, its holding is equally apphcable to Article III, Sec. 5(6) of the North Carolina Constitution of 1970. Although the power to parole contained in the 1868 Constitution has now been given by the General Assembly to the North Carolina Board of Paroles (see Article 4, Chapter 148 of the General Statutes), the 1970 Constitution provides that: "The Governor may grant reprieves, commutations, and pardons ..." In view of the foregoing, it is our opinion that after a defendant has begun the service of his term, or at least when that takes place after the adjournment of the court, it is beyond the jurisdiction of the judge to alter it or to interfere with it in any way, as the power of reprieve, commutation and pardon during the term of imprisonment is by the Constitution of North Carolina the exclusive prerogative of the Governor. Cf. In Re Powell, 241 N.C. 288, 84 S.E. 2d 906 (1954). -2- Robert Morgan, Attorney General Jacob L. Safron Assistant Attorney General 10 July 1974 Subject: Requested by: Questions: Conclusions: Mental Health; Infants and Incompetents; Rights of Minor Patients in Treatment Facilities Dr. Lenore Behar, Chief Children and Youth Services Division of Mental Health Services (1) Do the provisions of G.S. 122-55.13 terminate the parental-child relationship between a minor patient in a North Carolina treatment facility and his parent or parents? (2) Is it a violation of the rights of a minor patient in a North Carolina treatment facility to notify his parent or parents: (a) of his presence there when he is a runaway from home? (b) of the fact he has been or is being treated for venereal disease? or (c) of the fact that he has attempted to commit suicide? (1) The provisions of G.S. 122-55. 1 3 do not terminate the parental-child relationship between a minor patient in a North Carolina treatment facility and his parent or parents. (2) It is not a violation of the rights of a minor patient in a North Carolina treatment facility to notify his parent or parents: (a) of his presence there when he is a runaway from home; (b) of the fact that he has been or is being treated for venereal disease; or (c) of the fact that he has attempted to commit suicide. The 1973 Session (2nd Session 1974) of the General Assembly of North Carolina singled out minor patients in North Carolina treatment facihties for special consideration. As a result. Part 3 of Article 3, Chapter 122 is devoted to the rights of minor patients and is tailored to meet their particular requirements. G.S. 122-55.13 declares an intention to protect the minor patients' riglats to "dignity, humane care, and proper adult supervision and guidance". This section clearly provides: "In view of the physical, emotional, and intellectual immaturity of the minor, the treatment facility shall stand in loco parentis to the minor when he is in residence." It would appear that this placement of responsibility upon the treatment facility has raised the question as to the exact status of the parent of a minor patient during the period of time that the minor is in a treatment facility. Examination of Part 3 of Article 3, in its entirety, however, dispels any illusions that the General Assembly had intended to tamper with the relationship between minor patients and their parents. It is clear that what was intended was to create a status of authority on the part of the facility to safeguard the welfare of minor patients on an around-the-clock basis and to permit the facility to perform functions which the parents normally would perform were they not geographically separated from the minor. That there was no intention to interrupt the normal parental relationship is manifested by the provisions of G.S. 122-55.14 which specifically guarantee the minor patients' rights to communicate with individuals having legal custody of them and to consult with private mental health mental retardation specialists chosen by their legal custodians. This State has long adhered to the principle that "... the law seeks to work in harmony with nature, and to continue those ties which bind man to his own flesh . . ." See James r. Pretlow, 242 N.C. 102, 105 (1955). Any termination of the parent-child relationship predicated solely upon a minor's patient status in a treatment facility would do unwarranted violence to this basic principle. In view of this continuation of the normal parental relationship, it becomes obvious that there is no abrogation of any right of a minor patient in communicating to his parent or parents information dealing with his location, his physical or mental condition, or his actions. Imphcit in the language of G.S. 90-21.1 through G.S. 90-21.5 is a recognition by the General Assembly of the nature of such a relationship. By these statutes, treatment of minors by qualified physicians acting without the consent of parents was legitimized in certain emergency situtations. The language throughout these statutes clearly conveys the underlying theme that leaving the parents out of the picture will be the exception rather than the norm. Further, it is difficult to visualize how the responsible adult could determine the advisability of procuring the assistance of private mental health mental retardation specialists (as guaranteed by G.S. 122-55. 14)if he is not afforded the benefit of all information pertinent to the condition and treatment of the minor. Further indication of the intent of the Legislature on this score is found in the provisions of G.S. 122-56.5 providing that a parent, inter alia, shall act for a minor who has been voluntarily admitted to a treatment facility in consenting to medical treatment; again, any such consent should clearly be an enhghtened one. One specific comment is in order with regard to information that a minor is being treated for venereal disease. G.S. 90-21.5 specifically addresses the subject of venereal disease and authorizes, in this hmited area, treatment based upon the minor's consent. Nevertheless, this excusable of the need for a before the fact consent by a responsible adult does not preclude an after the fact report of this or any other pertinent aspect of the patient's condition to such responsible adult. Robert Morgan, Attorney General William F. O'Connell Assistant Attorney General -5- 10 July 1974 Subject: Requested by: Question: Conclusion: Mental Health; Infants and Incompetents; Voluntary Admission of Runaway Minors to Treatment Facilities Dr. Lenore Behar, Chief Children and Youth Services Division of Mental Health Services In an emergency situation may a runaway minor may be voluntarily admitted to a North Carolina treatment facility under the provisions of Article 4, Chapter 122, upon his request but without an appHcation for admission being submitted by his parent, parents, or other person having legal custody of him? In an emergency situation a runaway minor may be voluntarily admitted to a North Carolina treatment facility under the provisions of Article 4, Chapter 122, upon his request without application for admission by his parent, parents, or person having legal custody of him. This question has arisen because of the provisions of G.S. as follows: 122-56.5, "§122-56.5. Representation of minors and persons adjudicated non compos mentis. In applying for admission to a treatment facility, in consenting to medical treatment when consent is required, in giving or receiving any legal notice, and in any other legal procedure under this Article, a parent, person standing in loco parentis, or guardian shall act for a minor, and a guardian or trustee shall act for a person adjudicated non compos mentis." The phraseology of this Section, standing alone, and interpreted -6- literally, would appear to mandate the presentation of an application for admission by a responsible adult as an absolute prerequisite to admission of a minor to a treatment facility. Further, although G.S. 122-55.13 provides that "... the treatment facility shall stand in loco parentis to the minor when he is in residence", no such provision is made for the period prior to his becoming a resident of the facility. However, elsewhere in the General Statutes the legislators have provided for situations wherein treatment of minors is required on an emergency basis. G.S. 90-21.1 authorizes a medical doctor to render treatment to any minor without consent of the parents, etc., where: (1) The responsible adult cannot be located or contacted with reasonable diligence in time to meet the minor's needs for treatment; or (2) where the identity of the minor is unknown or the necessity for immediate treatment is so apparent that delaying treatment in an effort to secure approval would endanger the minor's life; or (3) where an effort to contact the responsible adult would result in delay that would seriously worsen the minor's condition. G.S. 90-21.2 defines the word "treatment" as " . . . any medical procedure or treatment, including X-rays, the administration of drugs, blood transfusions, use of anesthetics, and laboratory or other diagnostic procedures employed by or ordered by a physician licensed to practice medicine in the State of North Carolina that is used, employed, or ordered to be used or employed commensurate with the exercise of reasonable care and equal to the standards of medical practice normally employed in the community where said physician administers treatment to said minor." It is clear that the treatment required by a minor suffering from mental illness would fall within this definition. It is equally clear that admission of the minor patient to the facility wherein he is to receive this treatment is an integral and vital part of the treatment itself. Therefore, when the situation is of an emergency nature of a type as described by G.S. 90-21.1, a minor may be admitted to a North Carolina treatment facility without the application for admission being presented by a responsible adult. Robert Morgan, Attorney General William F. O'Connell Assistant Attorney General 10 July 1974 Subject: Requested by: Question : Conclusion: Mental Health; Involuntary Commitment; Return of Respondent to Mental Health Facility for Treatment Pending Commitment Hearing Dr. N. P. Zarzar, Director Division of Mental Health Services Department of Human Resources Is it necessary to initiate a new affidavit as the basis for securing the involuntary readmission to a mental health facility of a patient who has been released therefrom pending his hearing in district court but whose condition has changed so as to require prehearing inpatient treatment? It is necessary to initiate a new affidavit as the basis for securing the involuntary readmission to a mental health facility of a patient who has been released therefrom pending his hearing in district court but whose condition has changed so as to require prehearing inpatient treatment. G.S. 122-58.6 deals with prehearing disposition of a respondent in an involuntary commitment case. This Section requires an examination of a respondent by a qualified physician within 24 hours of his arrival at the facility and the results of this examination determine his prehearing status. If the qualified physician finds that the respondent is mentally ill or an inebriate and is imminently dangerous to himself or others, the respondent is held at the facility pending the hearing. Conversely, if the quahfied physician finds that the respondent is not mentally ill or inebriate or is not imminently dangerous to himself or others, he releases the respondent pending his district court hearing and notifies the clerk of superior court to that effect. No specific directives are contained in G.S. 122-58.6 relative to the individual who has been initially released from the facility pending his commitment hearing but whose changed condition apparently indicates the advisability of prehearing involuntary inpatient treatment. However, the underlying theme running through the present involuntary commitment statutes is a prohibition of any semblance of arbitrary, capricious, questionable, or unnecessary restraints upon an individual processed thereunder. Indicative of the legislative feeling relative to appropriate documentation are the provisions found in G.S. 122-58.6 dealing with a respondent who has been released prior to his hearing but who then improperly fails to appear for his hearing. Even in that aggravated situation, an order of the responsible judge is required in order to take the respondent into custody and return him to the mental health facility. In the situation described in the question, some form of reliable information must be available in order to justify altering the earlier professional determination of the qualified physician regarding the need for holding the respondent prior to his hearing. The initiation of action designed to involuntarily commit a mentally ill or inebriate person is required to be based upon an affidavit of a person having knowledge of the facts and the entire situation. See G.S. 122-58.3 and G.S. 122-58.18. Similarly, the spirit of the involuntary commitment statutes ~ as well as efficient, effective and just practices and procedures ~ requires documentation in the form of a new affidavit in order to warrant reversal of the preliminary decision that restraint of the respondent is not necessary prior to his hearing. Robert Morgan, Attorney General William F. O'Connell Assistant Attorney General 10 July 1974 Subject: State Departments, Institutions and Agencies; Department of Natural and Economic Resources; Sedimentation Control Commission; Chairman -9- Requested by: Mr. James E. Harrington, Secretary Department of Natural and Economic Resources Question: Conclusion : Under the provisions contained in Chapter 1262, Sections 40 and 41, 1974 Session Laws, reorganizing the Department of Natural and Economic Resources, and under those contained in Chapter 1417, Section 2, 1974 Session Laws, amending the Sedimentation Pollution Control Act of 1973, did the Secretary of the Department of Natural and Economic Resources again become the Chairman of the Sedimentation Control Commission on 1 July 1974? No, Chapter 1417, Section 2, not only amends G.S. 1 13A-53, but also amends by implication Chapter 1262, Section 40, so as to provide that the Governor shall designate a member of the Commission to serve as Chairman. On 13 April 1974, Chapter 1417, 1974 Session Laws, amending the Sedimentation Pollution Control Act of 1973, was ratified by the Legislature. It removed the Secretary of the Department of Natural and Economic Resources (DNER) from membership on the Sedimentation Control Commission, where he had been Chairman as so provided in G.S. 1 13A-53(a)(l). This Chapter became effective upon its ratification on April 13. On 1 1 April 1 974, two days earlier, the Legislature had ratified Chapter 1262, 1974 Session Laws, reorganizing DNER. The effective date of this law was 1 July 1974. Section 40 of this Chapter simply copied G.S. 113A-53, as it existed before Chapter 1417 amended it, and Section 41 repealed G.S. 113A-53 on 1 July, the effective date. Therefore, on 1 July 1974 when G.S. 113A-53 was repealed, the authorizing provision for the Commission then became Section 40 of Chapter 1262. 10- If literal effect were to be given to these two enactments, the result would be that on April 13, the date on which Chapter 1417 became effective, the Secretary of DNER was removed from membership on the Commission and was replaced as Chairman by a member of the Cominission designated by the Governor. Then, on July 1, the effective date of Chapter 1262, the Secretary of DNER again became a member of the Commission and its Chairman. This gives rise to the question of whether or not the Secretary of DNER did, indeed, again become the Chairman of the Sedimentation Control Commission on July 1. In the opinion of this Office, the answer is "no". It is well established that the intent of the Legislature controls the interpretation of the statute. Person v. Garrett, 280 N.C. 163, 165, 184 SE 2d 873 (1971); State Highway Commission v. Hemphill, 269 N.C. 535, 538, 153 SE 2d 22 (1967); Shiie v. Scheldt, 252 N.C. 561, 564, 114 SE 2d 237 (1960). G.S. 143B-14(b) prohibits the Secretary of DNER from serving as Chairman of the Sedimentation Control Commission. Consequently, G.S. 113A-53 was amended by Chapter 1417, Section 2, 1974 Session Laws, in order to make it conform with the statutory requirements of G.S. 143B-14(b). However, Chapter 1262, 1974 Session Laws, which was ratified two days before Chapter 1417, but did not become effective until two and one-half months after it, simply copied verbatim G.S. 1 13A-53, as it existed before Chapter 1417 amended it. Since legislative intent controls the interpretation of the statute, it is our opinion that Chapter 1417, Section 2, has the effect of amending, by implication, Chapter 1262, Section 40, so as to permanently remove the Secretary of DNER from his position as Chairman of the Sedimentation Control Commission. Furthermore, if possible, the language of the statute will be interpreted to avoid absurd consequences. Person v. Garrett, supra at 166; Hobbs v. Moore County, 267 N.C. 665, 671, 149 SE 2d 1 (1966). In the matter currently under consideration, since the purpose of Chapter 1417, Section 2, was to remove the Secretary of DNER as Chairman of the Sedimentation Control Commission in order to conform to the requirements of G.S. 143B- 14(b), it -11- would be an absurd consequence to rename him as a member of the Commission and as Chairman on July 2, in derogation once more of G.S. 143B-14(b), the very ill which Chapter 1417, Section 2, was enacted to cure. An amendment or repeal of statutes by implication is not favored in this jurisdiction. Person v. Garrett, supra, at 165; State v. Hockaday, 265 N.C. 688, 691, 144 SE 2d 867 (1965); In re Halifax Paper Company, Inc., 259 N.C. 589, 594, 131 SE 2d 441 (1963). A later statute will not amend or repeal a former statute unless the two are in irreconcilable conflict, and amendment or repeal by implication is necessary. Person v. Garrett, supra; In re Halifax Paper Company, Inc., supra; Ivey v. North Carolina Prison Department, 252 N.C. 615, 619, 114 SE 2d 812 (1960); 7 North Carolina Index 2d, Statutes §11, at 84-85. However, where two statutes relating to the same subject are passed at the same or different sessions of the Legislature, and they are in irreconcilable conflict, the statute first enacted must give way to the latter to the extent of the conflict, the latest expression of the legislative will or intent being the law. Bland v. Wilmington, 278 N.C. 657, 661, 180 SE 2d 813 (1971); Victory Cab Company v. Charlotte, 234 N.C. 572, 577, 68 SE 2d 433 (1951); Guilford County v. Estates Administration, Inc., 212 N.C. 653, 655, 194 SE 2d 433 (1937); Road Commissioners v. County Commissioners, 186 N.C. 202, 204-205, 119 SE 206 {1923); North Carolina Index 2d, supra. Thus, Chapter 1417, Section 2, being the latter statute enacted, thereby is deemed to evidence the latest expression of the legislative intent or will, and has the legal effect of amending, by impUcation, Chapter 1 262, Section 40, so as to remove the Secretary of DNER from his position as Chairman of the Sedimentation Control Commission. This is so even though Chapter 1417 was ratified only two days after Chapter 1 262 and even though Chapter 1 262 did not become effective until two and one-half months after Chapter 1417. We believe that this latter fact is inconsequential, carrying no legal impHcations. Therefore, since the legislative intent was to remove the Secretary of DNER from his position as Chairman of the Sedimentation Control Commission and since an absurd result would be reached -12- if he were allowed to become the Chairman again on July 1 and since Chapter 1417 was the latter bill enacted, thus evidencing the latest expression of the legislative will, although it became effective before Chapter 1262, it is the opinion of this Office that Chapter 1417, Section 2, has the effect of amending, by implication. Chapter 1262, Section 40, thus removing the Secretary of DNER from his position as Chairman of the Sedimentation Control Commission in conformity with G.S. 143B-14(b). Consequently, on July 1, he was not reinstated as Chairman. Robert Morgan, Attorney General Kenneth B. Oettinger Associate Attorney 10 July 1974 Subject: Mental Health; Involuntary Commitment; Supervision and Treatment of a Respondent Detained in a Community Mental Health Center or Regional Mental Health Facility Requested by: Dr. N. P. Zarzar, Director Division of Mental Health Services Department of Human Resources Questions: (1) During the detention of a respondent at a community mental health center or a regional mental health facility prior to his involuntary commitment hearing, is appropriate supervision over him the responsibility of such facihty or center? (2) May respondent who is in detention in a community mental health center or a regional mental health facility prior to his involuntary commitment hearing be given medication or other treatment for his mental illness or inebriety? -13- Conclusions: (1) A community mental health center or regional mental health faciUty is responsible for the appropriate supervision of a respondent detained there prior to his involuntary commitment hearing. (2) While detained in a community mental health center or a regional mental health facility prior to his involuntary commitment hearing a respondent may be given reasonable and appropriate medication and treatment consistent with accepted medical standards if such is given under the direction of the attending qualified physician. Article 5A of Chapter 122 vests considerable responsibility in the law enforcement officer with regard to taking a respondent into custody during the initial stages of an involuntary commitment proceeding and taking him to the appropriate facihty or place for examination. Provisions are also made for the law enforcement officer to secure such detention of the respondent as is necessary to process the case. Further, the Article is clear that the law enforcement officer is responsible for getting the respondent to the right place for detention and/or examination. However, there is nothing in Article 5A which would impose any duty on the law enforcement officer to personally exercise supervision over the respondent while he is being detained at a community mental health center or a regional mental health facility. Quite to the contrary, the Article provides that the quahfied physician at the center or facihty "shall hold the respondent at the facility" or "shall release the respondent" based upon his determinations. See G.S. 122-58.6. Certain other functions such as later transporting a respondent or taking him into custody and returning him to the hospital devolve upon the law enforcement officer. Nevertheless, the whole tenor of Article 5A is indicative of the fact that the supervisory responsibihty over the respondent while he is actually detained at a center or facility is that of the qualified personnel at such center or facility. Further exemplification of this legislative intent to make -14- the center or facility responsible for the respondent's welfare is found in the provisions of G.S. 122-58. 6(c) as follows: "(c) Pending the district court hearing, the qualified physician attending the respondent is authorized to administer to the respondent reasonable and appropriate medication and treatment that is consistent with accepted medical standards." Robert Morgan, Attorney General William F. O'Connell Assistant Attorney General 10 July 1974 Subject: Requested by: Questions: Conclusions: Mental Health; Involuntary Commitment; Determination of Place of Detention Prior to Commitment Hearing Dr. N. P. Zarzar, Director Division of Mental Health Services Department of Human Resources (1) How can a law enforcement officer determine the proper place for and cause detention of a respondent prior to an involuntary commitment hearing? (2) During the preliminary stages of an involuntary commitment proceeding, may a magistrate or clerk, acting under G.S. 122-58.4, designate a temporary overnight place of custody with provision for subsequent removal to a regional facility for examination? ( 1 ) The prehearing detention authorized by G.S. 122-58.4 should be effected in accordance with the custody order of the magistrate or clerk; if the custody order 15- lacks specificity, the provisions of G.S. 122-58.4 and the local plan formulated for the use of mental health facilities will control. (2) A magistrate or clerk may designate a temporary overnight place of detention with provision for subsequent removal to a regional mental health facility for examination in the case of a respondent being processed for involuntary commitment when this course of action is rendered necessary by existing circumstances and will not result in the exceeding of time hmitations for the examination as prescribed by G.S. 122-58.4. G.S. 122-58.4 requires prompt examination of a respondent who is being processed under the involuntary commitment statutes. Rigid time requirements are imposed so that the respondent must be taken into custody within 24 hours of the execution of the custody order by the magistrate or clerk, and he must be transported to a proper place for examination immediately, but, in any event, within 48 hours after custody has been assumed. The law enforcement officer receiving the custody order is the individual who is responsible for getting the respondent to the right place within the prescribed time; apparently, some question has arisen as to where this law enforcement officer can look for guidance when a physician is not immediately available. The statute requires use of a community mental health facility as the place of detention if such is available. Otherwise, the law enforcement officer ". . . may cause the detention of the respondent, under appropriate supervision, in the respondent's home, in a general hospital or in a regional mental health facihty, but not in a jail or other penal facility." If the magistrate or clerk has specifically directed a place of detention, that order should be followed if possible; if, due to unexpected developments or unknown factors arising after the issuance of the order, the place specified appears inappropriate to the law enforcement officer, then he should so -16- apprise the magistrate or clerk and secure additional instructions. Where, due to insufficient information at the time of issuing the custody order or for other reasons, no specific place is specified in the custody order, the local plan deahng with mental health facilities should be looked to for guidance as to the proper place of detention. G.S. 122-58.16 requires the formulation of such a plan by community mental health facilities and area mental health programs. These plans are arrived at " . . .after consultation with local court officials and the local medical society" and approval thereof by the Division of Mental Health Services is required. Since the statute makes it very clear that the desired place of detention, where available, is a community mental health center, provision for alternate courses of action, absent a community health center, should be included in the local plan for the guidance of judicial and law enforcement personnel. In view of the requirement for consideration by all involved parties prior to formulation of the local plan, the provisions therein should conform to the requirements of G.S. 122-58.4 but be tailored to meet the needs of the local mental health personnel, the judiciary and the law enforcement officers. As to Conclusion No. 2, prompt examination of the respondent is required and the time Umits for the required actions leading up to the examination are absolute mandates. However, clearly there may be situations where, due to prevailing circumstances, the appropriate course of action will be local overnight detention, under authorized conditions, despite the fact that a satisfactory examination may not be obtained locally. In these situations, so long as the mandatory time Umit for examination of the respondent can still be met, it would appear that the magistrate or clerk is vested with discretion to enter an order directing local temporary custody and late transfer to a regional mental health facility. Robert Morgan, Attorney General William F. O'Connell Assistant Attorney General -17- 17 July 1974 Subject: Requested by: Question: Health; Regulation of Sewage Disposal in Foodhandling and Lodging Establishments; Construction of G.S. 72-46, G.S. 130-160 and G.S. 143-215 Mr. Stacy Covil, Assistant Head Sanitation Branch Sanitary Engineering Section Division of Health Services Department of Human Resources In light of the authority of the Environmental Management Commission to promulgate regulations and standards concerning sewage disposal systems and discharge therefrom under G.S. 130-160 and G.S. 143-215, may the Commission for Health Services also promulgate regulations concerning sewage disposal in foodhandling and lodging facilities under G.S. 72-46? The Commission for Health Services may prepare and the Department of Human Resources may enforce more stringent regulations concerning sewage disposal in foodhandling and lodging facilities where such regulations are deemed necessary to protect the pubhc health. G.S. 130-160 provides in substance that any person owning or controlling a residence, place of business or place of public assembly shall provide an approved sewage disposal system. A system with less than three thousand gallon capacity and not discharging into the surface waters is subject to approval according to regulations promulgated by the Commission for Health Services; a system with more than three thousand gallon capacity is subject to approval according to regulations promulgated by the Environmental Management Commission. The Environmental Management Conclusion: Commission is authorized under G.S. 143-215 to adopt effluent standards and limitations concerning discharge into all surface waters. G.S. 72-46 provides in substance that the Commission for Health Services shall promulgate regulations concerning the sanitation of foodhandUng and lodging establishments. The section provides that a permit must be obtained from the Department of Human Resources before any establishment may operate and that the permit may only be issued upon compliance with the regulations prepared by the Commission. A minimum grade of C is required for operation. The section sets forth certain items, including waste disposal, which shall be covered in the Commission's regulations. Section 6, Item 6, of the Rules and Regulations Governing the Sanitation of Restaurants and Other Foodhandling Establishments provides in part that "All toilet wastes shall be disposed of in a public sewer system, or in absence of a public sewer system, by a private sewage disposal system approved by the Commission for Health Services." Applying established rules of statutory construction that statutes pertaining to similar matters are to be harmonized and that implied repeal of statutory provisions is not favored, it is the opinion of this Office that the authority of the Environmental Management Commission to adopt regulations and standards under G.S. 130-160 and G.S. 143-215 does not diminish the authority and the responsibility of the Commission for Health Services to adopt and the Department of Human Resources to enforce regulations designed for the protection of the public health in regard to sewage disposal systems in foodhandling and lodging establishments. Due to the importance of proper sanitation in such establishments, the Legislature has authorized and directed the Commission for Health Services to consider and regulate all aspects of proper sanitation. This specific authority and responsibiUty in insuring proper sanitation must be construed as a supplemental safeguard for protecting the public health in foodhandling and lodging establishments in addition to the regulations of the Environmental Management Commission under G.S. 130-160 and G.S. 143-215. In light of possible concurrent jurisdiction of the Environmental Management Commission and the Commission for Health Services in promulgating regulations concerning sewage disposal systems in -19- foodhandling and lodging facilities, the Department of Human Resources, in enforcing the regulations of the Commission for Health Services, may evaluate a sewage disposal system and determine whether, regardless of the fact that the system has been found to satisfy the requirements of the Environmental Management Commission, the system satisfies the requirements of the Commission for Health Services. It is the opinion of this Office that the regulations of the Commission apphcable to sewage disposal systems in foodhandUng and lodging establishments may be more stringent than those of the Environmental Management Commission apphcable to sewage disposal systems in general; but, in no event, may the Department of Human Resources issue a permit under G.S. 72-46 to an establishment which has not satisfied the applicable regulations, if any, of the Environmental Management Commission under G.S. 130-160 and G.S. 143-215. Tliis conclusion necessarily follows from the determination that G.S. 130-160 and G.S. 143-215 impose minimum requirements of sanitation for sewage disposal systems and that G.S. 72-46 imposes supplemental requirements on foodhandling and lodging establishments. G.S. 72^6 provides that the Commission for Health Services may prepare rules concerning waste disposal, among other things, in determining the overall sanitation of the establishment; but G.S. 130-160 specifically provides that all places of business shall have a sanitary system of sewage disposal. It would be anomalous to conclude that an establishment, although failing to satisfy the specific mandate of G.S. 130-160 and G.S. 143-215, could nevertheless possess the level of sanitation demanded by G.S. 72-46. Therefore, if the Office of Environmental Protection has issued a permit or temporary permit indicating compUance with G.S. 130-160 and G.S. 143-215, the Department of Human Resources may independently evaluate the sewage disposal system in determining the general sanitation of the foodhandling or lodging estabUshments. However, if the Office of Environmental Protection denies a permit or withdraws a temporary permit, the estabUshment cannot ipso facto satisfy the requirements to obtain a minimum grade of C. Robert Morgan, Attorney General Robert R. Reilly Associate Attorney -20- 17 July 1974 Subject: Requested by: Questions: Conclusions: State Departments, Institutions, and Agencies; State Department of Youth Development; Infants and Incompetents; Medical Treatment for Students; Consent for Surgical Operations on Minor Students Mr. John R. Larkins, Commissioner Office of Youth Development Department of Social Rehabilitation and Control Under present conditions where none of the facilities of the State Department of Youth Development have a medical doctor at the facility but where each has a contractual relationship with a medical doctor for medical services to its students: (1) Who is authorized to consent to a non-emergency surgical operation on a minor student? (2) Who is authorized to consent to an emergency surgical operation on a minor student? (3) What authorization is needed for non-surgical medical treatment given to a minor student? (4) May effective general consent be obtained in advance from parents, guardians, relatives or legal custodians for all necessary medical treatment and surgery which may be given to a minor student in the future? Under the circumstances described in the questions: -21- (1) Consent for a non-emergency surgical operation on a minor student should be obtained from a responsible member of his family, guardian, or one having legal custody. If such type of individual qualified to give this consent cannot be found, then consent should be obtained from the local health director of the area where the facility is located. (2) Consent for an emergency surgical operation on a minor student should be obtained from the superintendent of the institution and the medical doctor under contract for medical services to students of the facility. (3) The need for non-surgical medical treatment given to a minor student should be determined by the medical doctor under contract to the facility, and, upon such determination, no further consent is necessary. (4) General consent from parents, guardians, relatives or legal custodians obtained in advance for surgical operations on minor students would not be effective to authorize future surgical operations. In view of conclusion (3), general advance consent for future non-surgical treatment of minor students is not prohibited nor would it be necessary for the administration of non-surgical treatment by the medical doctor under contract. G.S. 134-26, ratified in 1971, provides: "§134-26. Providing necessary medical and surgical treatment for students. - The State Department of Youth Development is authorized and directed to -22- provide, through hcensed physicians and surgeons, such medical and surgical treatment as is necessary to preserve the life and health of the students. The medical staff of any school, institution, or agency, under the management and control of the State Department of Youth Development, is hereby authorized to perform or cause to be performed, by competent and skillful physicians or surgeons, medical treatment or surgical operations upon any student when such operation is necessary for the physical health of the student. Provided, that no operation shall be performed except as authorized in G.S. 130-191." As a result, in order to resolve the question regarding non-emergency surgery, it is necessary to examine G.S. 130-191. As found in the 1974 Replacement Volume 3B of the North Carolina General Statutes, that section makes the following provisions for non-emergency surgery on minor students: "No such operation shall be performed . . ., if the inmate be a minor, without the consent of a responsible member of his family, a guardian, or one having legal custody of such minor ... In any event in which a responsible member of the inmate's family, or a guardian for such inmate, cannot be found, as evidenced by the return of a registered letter to the last known address of the guardian or responsible relative, then the local health director of the area in which the hospital or institution is located shall be authorized to give or withhold, on behalf of the inmate, consent to the operation." This language unequivocally demonstrates a legislative intent to secure the consent for non-emergency surgery from the parents, guardian, or a person having custody where it is reasonably possible. As an alternative, when efforts to find such person in the manner prescribed have been unsuccessful, the local health director is vested with the responsibility for resolving the issue of whether the operation should be performed and is authorized to give the required consent. -23- Paragraph 2 of G.S. 130-191 covers the situation where emergency surgery on a minor resident is involved but it is impossible to obtain the timely consent of "a responsible member of his family, guardian, or one having legal custody." In that situation "... the decision to proceed with the operation shall be made by the chief medical officer and the superintendent of the institution with the advice of the medical staff of the institution." Clearly, under existing circumstances, substituting a medical doctor under contract for a non-existent chief medical officer and his staff would fall squarely within the ultimate intent of the legislators, i.e., obtaining the approval of the superintendent of the institution and a professionally qualified medical doctor. This section and this rationale would appear to be similar to that involved in Article 1, Chapter 90, of the North Carolina General Statutes, dealing with the general treatment of all minors in this State. In view of the specific language of G.S. 130-191 and the Hmitations of its area of application, its provisions should control in the event of any conflict or inconsistencies with the provisions of Article 1 of Chapter 90. So too, the intent of the legislators as expressed in G.S. 134-26 would also be implemented by equating a medical doctor under contract to the "medical staff" described in that section. Thus the medical doctor having a contractual relationship with the facility would be the determiner of the need for non-surgical treatment of a minor student. Of course, responsibility rests upon the personnel at the facility for insuring that any minor student displaying symptoms of illness, disease, etc., receives appropriate medical examination for the purpose of determining the need for medical treatment. Finally, the specificity of the language of G.S. 130-191, together with the limitations imposed by G.S. 134-26, precludes the deriving of any true authorization for future surgery from a general consent previously obtained from responsible adults. As to non-surgical treatment, in view of the statutory provisions governing this situation, such prior consent is not required as a prerequisite for obtaining appropriate treatment. However, this general consent to non-surgical treatment is not prohibited and might serve at least a psychological purpose in reassuring the responsible adults that the minor student will receive proper medical treatment, or in deterring future attempts to institute litigation because of medical treatment which has been given. -24- It is noted that a prior opinion of this Office addressed to Dr. John S. Chamblee, Rocky Mount City Health Director, dated 1 July 1969, and published at 40 N.C.A.G. 674 has dealt with these questions. In view of the language of the present statutes governing this situation, that prior opinion is hereby superseded with this opinion and the advice given in the prior opinion should no longer be followed. Robert Morgan, Attorney General William F. O'Connell Assistant Attorney General 19 July 1974 Subject: Requested by: Mental Health; Involuntary Commitment; Authority of Attending Physician to Determine Place of Pre-Hearing Custody Mr. M. G. Boyette County Attorney Moore County Question: May the attending physician in a community mental health center, acting solely at his own discretion, transfer to a regional mental health facility a respondent in an involuntary commitment proceeding who is in pre-hearing detention at the center? Conclusion: An attending physician at a community mental health center, acting solely at his own discretion, may not transfer to a regional mental health facility a respondent in an involuntary commitment proceeding who is in pre-hearing detention at the center. This Office has recently had occasion to examine the problems attendant to the pre-hearing detention of respondents in involuntary -25- commitment cases, including the authority to determine a proper place for detention. See opinions of the Attorney General to Dr. N. P. Zarzar, Director, Division of Mental Health Services, Subjects: Determination of Place of Detention Prior to Commitment Hearing; Supervision and Treatment of a Respondent Detained in a Community Mental Health Center or Regional Mental Health Facility; and Return of Respondent to Mental Health Facility for Treatment Pending Commitment Hearing, all three opinions dated July 10, 1974. The conclusions arrived at in these opinions were predicated to a very great extent upon some of the desired results which the General Assembly obviously intended to achieve by ratifying the new involuntary commitment statutes-i.e., insuring the minimum amount of pre-hearing restraint commensurate with the individual case, avoiding any requirement for excessive transportation of the respondent as a part of the commitment proceedings, accessibility of the respondent to his lawyer, and placing the proceedings squarely within orderly judicial proceedings so that the rights of all parties can be protected. The same basic considerations are involved in arriving at the conclusion voiced here. If the order of the magistrate or clerk specifies the place of detention and a change therein becomes imperative, the judicial officer who issued this order should be contacted, informed of the situation, and requested to alter the detention order. If no place of detention is specified in the order, and the order does not grant the detaining facility discretion in the matter, then the local plan dealing with mental health facilities formulated under G.S. 122-58.16 should afford proper guidance on the matter of transfer of the respondent. The controlling statutes speak clearly regarding the authority of a qualified physician attending the respondent to release him from any detention prior to his hearing. Thus, if the physician finds that the respondent is not mentally ill or inebriate and not imminently dangerous to himself or to others, then he may release him from such detention until the time of his commitment hearing. See G.S. 122-58.6. However, if the attending physician determines that the respondent should be detained, he is not authorized, on his own, to transfer the respondent to a regional mental health facility in contravention of the order of the magistrate or clerk or contrary to the provisions of the local mental health plan. Although authority is vested in the attending physician to administer appropriate, -26- reasonable medication and treatment to a respondent being detained, in view of the specific statutory language dealing with the place of detention, this authority does not extend to an unauthorized transfer of a respondent in pre-hearing detention. Robert Morgan, Attorney General William F. O'Connell Assistant Attorney General 5 August 1974 Subject: Requested by: Questions: Mental Health; Mentally 111 or Inebriate Persons; Patients' Rights; Contraband; Search and Seizure; Regulation of Parking; Assault Dr. Pedro Carreras, Assistant Director John Umstead Hospital (1) May the Director of a State mental institution confiscate contraband articles in possession of a patient at such institution? (2) May the Director of a State mental institution search a patient and his possessions for articles that may be dangerous, not only to the patient, but to other patients and staff as well, when reliably informed that a patient has such articles in his possession? (3) What degree of force may be used by a State mental health hospital staff member to defend himself when assaulted by a violent and aggressive patient? (4) Is John Umstead Hospital authorized to establish parking areas for patients and enforce use of such areas? -27- Conclusions: (1) The Director of a State mental institution may confiscate contraband articles in possession of a patient at such institution. (2) The Director of a State mental institution may search a patient and his possessions for articles that may be dangerous not only to the patient but to other patients and staff as well, when reliably informed that a patient has such in his possession; however, where criminal prosecution is indicated and where it does not appear that the situation is so emergent that irremediable harm would result from delay, a search warrant should be obtained prior to search. (3) A mental health hospital staff member may use only that degree of force necessary to repel and secure a violent and aggressive patient. (4) John Umstead Hospital may establish parking areas for patients and enforce use of such areas. The mental hospital to which a mentally ill or inebriate person is committed pursuant to Article 5A of Chapter 122 of the General Statutes has custody of such person and is responsible for appropriate supervision during the commitment period. See G.S. 122-58.8(b). G.S. 122-55.2 provides that a patient has a right to keep and use his own clothing and personal possessions and to have access to individual storage space for his private use. However, nothing contained therein gives the patient a right to have in his possession articles that are imminently dangerous to himself or others or property, the possession of which is made a criminal offense under the laws of this State, i.e., concealed weapons, illegal drugs, etc. The Department of Human Resources has jurisdiction over all the State's mental hospitals, G.S. 122-1, and the Commission for Mental Health Services is authorized to estabHsh -28- rules and regulations governing the admission of persons to such institutions. G.S. 122-3. The Department may, by proper regulations, require inventorying and proper storage of such articles as may be dangerous but not otherwise illegally possessed. The authorities and case law in this State concerning search and seizure deal generally with actual or suspected criminal law violations and evidence obtained by an unlawful search and seizure may not be introduced at the trial of the accused. A warrant may be issued by any justice, judge, clerk or assistant or deputy clerk of any court of record, or any magistrate of the General Court of Justice to search for any contraband, evidence, or instrumentality of crime upon finding probable cause for the search. G.S. 15-25(a). In order to obtain a search warrant, it is necessary that an affidavit under oath establish the basis for the finding of probable cause for its issuance. G.S. 15-26. Further, no evidence obtained or facts discovered by means of an illegal search shall be competent as evidence in any trial. G.S. 15-27(a). This Office is of the opinion that contraband articles, i.e., weapons, illegal drugs, etc., in the possession of a patient at a mental institution may be seized by the Director of such institution, particularly where the retention of such would constitute a danger to the safety not only of the particular patient but other patients and the staff as well. This applies to such articles in a patient's possession at the time of his admission and at all times thereafter during his detention at the hospital. Further, if there is reasonable ground to believe that a patient has such articles in his possesion, this information may be conveyed by proper affidavit to a magistrate or other person authorized to issue a search warrant and such magistrate or other officer may, if convinced, issue such warrant. Where criminal prosecution is anticipated, obtaining a search warrant will tend to make amply sure that the objects seized will be admissible at trial. However, in situations where it appears probable that bodily injury or property destruction, etc., will result from the delay, the better cause may well be to conduct the search without benefit of a warrant; hence, the conclusions reached in Questions (1) and (2). -29- The right of self-defense provides the answer to Question (3). A person may use such force to repel an assault as is reasonably or apparently necessary to protect himself from death or great bodily harm. The reasonableness of the apprehension is to be determined by the jury in accordance with the facts and circumstances as they appeared to defendant at the time of assault. See State v. Francis, 252 N.C. 57, 112 S.E. 2d 756 (1960). The force used must not be excessive or disproportionate to the force it is intended to repel and the question of excessive force is ordinarily for determination of the jury. State v. Ritter, 239 N.C. 89, 79 S.E. 2d 164 (1953). Thus, a mental hospital staff member may, if assaulted by a violent and aggressive patient, use such force as is necessary to defend himself; however, great care should be exercised to assure that the force used to repel the assailant is not excessive under the circumstances. As to Question (4), G.S. 122-16.1 and G.S. 122-95 appear to be dispositive. Under G.S. 122- 16. 1(b), the Commission for Mental Health Services is authorized to establish parking areas on the grounds of mental institutions. Under G.S. 122-95, the North Carolina Department of Human Resources is authorized to make rules and regulations and to adopt such ordinances as may be necessary for the better administration of John Umstead Hospital and is authorized in particular to estabUsh parking areas. We are of the opinion that this authority is sufficiently broad to enable John Umstead Hospital to designate State-owned areas as patient parking lots and to require patients having automobiles at the institution to park their automobiles in those areas. Robert Morgan, Attorney General Parks H. Icenhour Assistant Attorney General 12 August 1974 Subject: Social Services; Closed-End Budget for Financing Programs of Public Assistance at the County Level; Chapter 1418, Session Laws 1973, Second Session; Legality of Social Services Commission Proviso that for -30- Fiscal 1974-75 Counties Will Be Required to Provide Adult Services, Under More Liberal Eligibility Standards, Only to the Extent the County Budgets Permit Requested by: Mr. Robert Ward Deputy Director Division of Social Services N. C. Department of Human Resources Question: May the Social Services Commission adopt a proviso that for fiscal 1974-75 counties will be required to provide adult services, under more liberal eligibility standards, only to the extent their budgets permit? Conclusion: The Social Services Commission may adopt a proviso that for fiscal 1974-75 counties will be required to provide adult services, under more Hberal eligibility standards, only to the extent their budgets permit. At the June 14, 1974, meeting of the North Carohna Social Services Commission approval was given to raising the maximum level of income for eligibility for potential recipients of adult services, with the proviso that for fiscal 1974-75 counties will be required to provide such services only to the extent their budgets permit. The focal issue in this instance is the possibility that certain applicants for adult services who are otherwise eligible under the financial standard adopted by the Social Services Commission may be deprived of such services by virtue of the fact that the county has exceeded its budgetary maximum for these programs for fiscal 1974-75. Such a result would run afoul of 45 CFR §222.5 and 45 CFR §220.15: "All of the services (adult) contained in the State plan must be available, accessible, and provided with reasonable promptness to all ehgible persons needing the services." 45 CFR §222.5. (Emphasis supplied) "The State plan: -31- (a) Must assure that responsibility is assumed for tiie provision of services (certain adult services under Title IV-A of the Social Security Act) to all appropriate persons receiving aid and others in the home whose needs were considered in determining eUgibility for such aid, as called for under each of the requirements in §§ 220.16- 220.25..." 45 CFR §220.15. (Emphasis supplied) Such a result would also run afoul of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States. However, Chapter 1418 of the 1973 Session Laws, Second Session, 1974, established the "State Public Assistance Contingency Fund" from State appropriations to provide additional funds to the counties for all programs of public assistance in fiscal year 1974-75 in the event that expenditures in such county programs exceeded the approved budget of total county funds required to finance each program of public assistance within that county for fiscal year 1974-75. Consequently, when the aforementioned proviso is considered in connection with the provisions of Chapter 1418, it becomes evident that all persons eligible for adult services in fiscal 1974-75 will, in fact, receive such services, only the costs thereof will be assumed in one of the following manners: 1. By the individual county under its budget for adult services until that budget has been exhausted at which time the county may, with the approval of the Secretary of Human Resources or his representative, transfer county funds from another public assistance program to the adult services programs. See Section 5 of Chapter 1418. 2. When the county's budget for all public assistance programs is exhausted, the expense of these programs in the county for fiscal year 1974-75 will be defrayed by an allotment from the "State Public Assistance Contingency Fund," made to the county at any time during the fiscal year by the Secretary of Human -32- Resources when satisfied of the county's need for such allotment. See Section 2 of Chapter 1418. In sum, Chapter 1418 has cured the proviso adopted by the Social Services Commisssion on June 14, 1974, of significant constitutional and statutory defects. Therefore, the proviso is legally sanctionable at this time. Robert Morgan, Attorney General William Woodward Webb Assistant Attorney General 12 August 1974 Subject: Requested by: Questions: Mental Health; Commitment Rehearings; Waiver of Notification of Time and Place of Rehearing Mr. J. Laird Jacob, Jr. Special Counsel Broughton Hospital (1) Is it required that the clerk's notice of rehearing pursuant to Article 5A, Chapter 122, North Carolina General Statutes, in an involuntary commitment case be actually served upon the respondent and the appropriate special counsel? (2) May the special counsel in an involuntary commitment case involving an indigent respondent: (a) accept service of the clerk's notice of rehearing (AOC-L Form 406) for the respondent? (b) waive the service of the clerk's -33- notice of rehearing (AOC-L Form 406) upon the respondent? (c) waive service of the clerk's notice of rehearing (AOC-L Form 406) upon the respondent and special counsel? Conclusions: (1) Absent appropriate waiver of service, or consent to non-service, G.S. 122-58.1 1(a) requires actual service of the clerk's notice of rehearing in an involuntary commitment case upon both the respondent and the special counsel. (2) The special counsel in an involuntary commitment case involving an indigent respondent: (a) may accept service of the clerk's notice of rehearing (AOC-L Form 406) for the respondent; (b) waive service of the clerk's notice of rehearing (AOC-L Form 406) upon the respondent; (c) waive service of the clerk's notice of rehearing (AOC-L Form 406) upon both the respondent and special counsel. Under the present involuntary commitment statutes an initial period of involuntary commitment may not exceed ninety (90) days. Where continued involuntary commitment is indicated, a rehearing must be held to determine the need for continuation beyond the end of the initial period. G.S. 122-58.1 1(a). The second period of involuntary commitment cannot exceed one hundred and eighty (180) days, and, if continuation beyond that period appears necessary, the respondent must be afforded the opportunity of annual rehearings. G.S. 122-58.1 l(d),(e). -34- G.S. 122-58.1 1(a), with reference to the first rehearing, provides the clerk "...shall notify the respondent and his counsel of the time and place of the rehearing." Other provisions specify that the same procedures appertain to rehearings as those governing initial hearings and that respondents have the same rights as they have at initial hearings. G.S. 122-58.1 l(c),(e). On the topic of original hearings, G.S. 122-58.5 stipulates: "Notice must be given at least 48 hours in advance, unless waived by counsel for the respondent." Further indicative of the legislator's ideas as to the role of counsel, he is authorized to waive the presence of any respondent at a hearing (G.S. 122-58. 7(d)), and the right to rehearings after the first rehearing may be waived when "...the respondent through his counsel" files a written waiver of such right (G.S. 122-58. 11(e)). In order to fully protect the rights of indigents in the mental health facilities, the present statutes authorize the appointment of special counsel at each regional psycliiatric facility. These special counsel are required "...to represent at rehearings under this Article all indigent respondents" and their authority extends even to the initial determination of indigency. G.S. 122-58. 12(a). As the necessary implementation of the statutory requirement for notice, a particular form (AOC-L Form 406) has been devised and is utihzed for the purpose of effecting service upon respondents and special counsel. In accordance with normal practice, these notices are being served upon the respondents and special counsel by law enforcement officers. Apparently the present questions arose from a desire to obviate the monetary costs and man-hours expended in preparation and service of these notices where it is the desire of special counsel to waive these formalities. In view of the language used throughout Article 5 A, it is manifest that the General Assembly intended to vest considerable discretion and authority in the hands of the special counsel so as to enable them to represent the respondents' best interests. Thus, it would appear that the actions described in Conclusion (2) are permitted. -35- It is contemplated, of course, that where formal notice is waived, informal notification adequate to amply protect a respondent's rights will be made and that appropriate recordation thereof will be available to substantiate the absence of a deprivation of the rights of any respondent. In addition. Conclusion (2) is Hmited to a situation where only special counsel is involved and there is no individual counsel of record. Where there is individual counsel of record who is still representing a respondent, undoubtedly such individual counsel would be authorized to waive or accept service in the same fasliion as special counsel. However, in that type of situation, special counsel would not be authorized to take these actions on his own. Robert Morgan, Attorney General William F. O'Connell Assistant Attorney General 12 August 1974 Subject: Mental Health; Involuntary Commitment; Propriety of the "Qualified Physician" Acting As Physician In Charge of Treatment Requested by: Mr. R. J. Bickel Assistant Director for Administration Division of Mental Health Services N. C. Department of Human Resources Question: Can a duly hcensed medical doctor who is a full time mental health center staff member act as the quahfied physician responsible for committing to the mental health center inpatient unit a patient whom he has appropriately evaluated to be mentally ill or inebriate, and, at the same time, be the primary medical physician in charge of this person's treatment in the center's inpatient unit without violating the legal rights of the patient or the physician? -36- Conclusion: There is no legal impediment to, or violation of the legal rights of any party resulting from, the qualified physician responsible for committing a patient to the mental health center inpatient clinic also acting as the primary medical doctor in charge of the patient's treatment at the center's inpatient unit. In view of the medicolegal approach to handling involuntary commitment cases in North Carolina, Article 5 A of Chapter 122 of the General Statutes places considerable emphasis on the role of the "quahfied physician" in involuntary commitment proceedings. He is responsible for determining initially if the respondent meets the criteria for involuntary commitment and whether pre-hearing restraint is necessary. As a practical matter, it would appear that his testimony is normally the most vital - and probably controlling - evidence presented upon the subject of need for commitment and treatment. These facts, however, do not serve to incapacitate the qualified physician from acting as the physician in charge of the respondent's treatment when the respondent becomes an inpatient as the result of the involuntary commitment proceedings. The basic objective in involuntary commitment proceedings is to secure proper treatment for individuals who need such treatment. In other words, the motive behind these proceedings is a curative one rather than a punitive one. Thus, the very act of commitment, where appropriate, is an integral step in the proper therapeutic program for the respondent. The quahfied physician is acting in the best interest of the respondent at the time of the commitment proceedings just as he is acting in the patient's best interest in administering inpatient treatment to him. As a result, there is no legal problem presented by the medical doctor performing the dual functions described. Two additional comments, not legal in nature, are in order on this subject. The functioning of the physician in the commitment proceedings may, in some instances, adversely affect the rapport desired between the physician and the patient and there may be some deterioration of the patient's confidence in the physician as a result of what the respondent may think is derogatory testimony. -37- Conversely, though, it is obvious that when the qualified physician and the treating physician are one and the same, it is far more likely that the treatment rendered will be compatible with that envisioned at the time commitment for treatment is judicially determined to be appropriate. These, however, are administrative matters with no legal connotations which must be resolved in view of the resources available at the individual facility. Robert Morgan, Attorney General William F. O'Connell Assistant Attorney General 12 August 1974 Subject: Prisons and Prisoners; Work Release; Parole Commission Requested by: Mr. J. Mac Boxley Chairman Parole Commission Questions: (1) Is the Parole Commission responsible for granting work release privileges to persons committed to the Division of Prisons? (2) Is responsibility for granting work release privileges for persons sentenced to imprisonment for less than five years reserved in the Division of Prisons? Conclusions: (1) Yes (2) No Chapter 1262 of the Session Laws of 1973 (Second Session 1974), entitled "An Act to Further Effectuate the Reorganization of State Government #4.", provides in Sec. 8(b), to be codified as G.S. 143B-266, that: -38- "All releasing authority previously resting in the Commissioner and Commission of Correction with the exception of authority for extension of the hmits of the place of confinement of a prisoner contained in G,S. 148-4 is hereby transferred to the Parole Commission. Specifically, such releasing authority includes work release (G.S. 148-33.1) . . .provided the individual considered for work release . . . shall have been recommended for release by the Secretary of Correction or his designee." (Emphasis added) Thus, the General Assembly has unequivocally assigned to the Parole Commission, effective July 1, 1974, the responsibility for granting of work release privileges to persons committed to the Division of Prisons. G.S. 148-33.1 authorizes work release and subsections (a) and (b) made a distinction in work release granting procedures to persons sentenced to a term not exceeding five years. Formerly, G.S. 148-33. 1(a) did not require Board of Parole authorization for work release in the event the sentencing court had recommended work release to a person sentenced to a term not exceeding five years. If the term exceeded five years, Parole Board approval was required before the Department of Correction could place the individual on work release. G.S. 148-33. 1(b). In the absence of G.S. 148-33.1 there would be no basis for granting work release privileges to any inmate, regardless of the length of sentence. It would undoubtedly ease the work load of the Parole Commission if the Division of Prisons could treat work release privileges for inmates sentenced to less than five years as an extension of the limits of confinement under G.S. 148-4. Unfortunately, there is no way to bifurcate work release into under and over five-year categories so as to avoid the language of G.S. 143B-266 vesting "All releasing authority . . . Specifically . . . work release (G.S. 148-33.1) . . ." in the Parole Commission. There would be no authorization for release privileges were it not for G.S. 148-33.1. Therefore, the conclusion is inevitable that the Parole Commission is exclusively responsible for granting work -39- release privileges to all persons in the custody of the Division of Prisons, regardless of whether or not their sentences are less than or more than five years. Robert Morgan, Attorney General Jacob L. Safron Assistant Attorney General 13 August 1974 Subject: Requested by: Question: Health; Solid Waste Disposal; Chapter 130, Article 13B; G.S. 153A-292; ApplicabiUty of Local Ordinances Mr. R. Kason Keiger Town Attorney Kemersville Does Article 13B of Chapter 130 of the General Statutes, authorizing the Department of Human Resources to establish a statewide soUd waste disposal system, preempt the field of legislation and bar the enactment and enforcement of county zoning ordinances on the subject? Article 13B does preempt the field of legislation and bar the enactment and enforcement of county zoning ordinances on the subject; but the boards of county commissioners may, pursuant to G.S. 153A-292, enact ordinances governing solid waste disposal facilities established and operated by the boards. Chapter 153A, Article 18, Part 3, of the General Statutes pertains to county zoning authority. G.S. 153A-340 is the general grant of power which authorizes counties to enact zoning restrictions for the -40- Conelusion: purpose of promoting health, safety, morals or the general welfare. G.S. 153A-346 provides that if the regulations made under the authority of Part 3 impose higher standards than required under other statutes, ordinances and regulations, the regulations made under the authority of Part 3 control; if not, the other statutes, ordinances and regulations control. Chapter 130, Article 13B, of the General Statutes authorizes and directs the Department of Human Resources "to engage in research, conduct investigations and surveys, make inspections, and establish a statewide solid waste disposal program." The Department shall "(d)evelop a comprehensive program for implementation of safe and sanitary practices for the disposal of solid waste throughout the State." The Commission for Health Services "shall have authority to provide standards for the establishment, location, operation, maintenance, use and discontinuance of solid waste disposal sites and facilities." It is well established in this State that "(m)unicipal ordinances are ordained for local purposes in the exercise of a delegated legislative function, and must harmonize with the general law of the State. In case of conflict the ordinance must yield to the State law." Davis y. Charlotte, 242 N.C. 670, 89 S.E. 2d 406 (1955). It is also well established that "(w)here a field of general legislation is wholly taken over by the State, local zoning regulations or ordinances...may not interfere with its supreme authority in that field." C. J. S., Zoning, s. 10, p. 693. Thus, the question arises whether resolution of this matter rests upon a determination of conflict between State law and regulation and a county ordinance or whether resolution rests upon a finding of State preemption in the field of solid waste disposal. In Petition of Hilovsky, 108 A. 2d 705, 179 Pa. 118 (1954), the Pennsylvania Supreme Court addressed the question whether a zoning ordinance may prohibit the sale of intoxicating liquor by a properly licensed hotel. The Court concluded that "(i)f it be argued that dispensing of Hquor has a reasonable relation to police power, the answer is that even so municipalities may not invade the field of regulation which the State legislature has completely filled by its comprehensive liquor control act.... A municipality may not in -41- the guise of a zoning ordinance regulate the business of dispensing liquor." (at 706). In Staley v. Winston-Salem, 258 N.C. 244, 128 S.E. 2d 604 (1962), the North CaroHna Supreme Court considered a Winston-Salem ordinance which purported to regulate the sale of beer or wine. The Court reviewed the history of extensive State legislation in the field and concluded that "(t)o interpret it (the State law) so as to permit local communities to override and set at nought the conclusions reached by the State Board (concerning licensing) might well reproduce the condition deplored by the 1945 Legislature. Local ordinances cannot override statutes applicable to the entire State. (Citation omitted). Petitioners' right to operate the restaurant being conceded, the zoning ordinance could not set at nought a statewide statute permitting the sale of wines in such restaurants. Such sales are a permitted part of authorized business." (at 248 and 249). An analogy between liquor regulation and solid waste disposal regulation is appropriate. In Staley v. Winston-Salem, supra, the Court found clear legislative intent of State preemption of liquor regulation; G.S. 130-166.18(1) clearly directs the Department of Human Resources to develop a comprehensive program throughout the State for regulation of solid waste disposal. Therefore, it is the opinion of this Office that Article 13B of Chapter 130 preempts the field of soHd waste disposal regulation and bars the enactment and enforcement of county zoning ordinances on the subject which are in conflict or inconsistent with State regulations. It should be noted that nothing herein is intended to suggest that local zoning ordinances may not classify land to permit or prohibit use as a landfill. However, once land is appropriately classified, establishment, location, operation, maintenance, use and discontinuance of solid waste disposal sites and facilities are not subject to zoning regulations. The General Statutes do confer specific authority on counties to regulate by ordinance the removal, disposal, storage, collection, transportation and use of solid waste and the use of solid waste disposal facilities. G.S. 153A-132.1 authorizes a board of county commissioners to enact ordinances governing the removal and disposal of soHd waste in the rural area of the county beyond municipal corporate limits. G.S. 153A-136 provides that a county -42- may by ordinance regulate "the storage, collection, transportation, use, disposal, and other dispostion of solid wastes." The broad language is Hmited by an enumeration of specifics thereafter. The section proceeds to confer upon the counties the authority to regulate and hcense "persons wishing to commercially collect or dispose of solid wastes." Subsection (b) thereof states that the county ordinances shall be "consistent with and supplementary to" the rules and regulations of the Commission for Health Services. G.S. 153A-292 authorizes the board of county commissioners to estabhsh and operate solid waste collection and disposal facilities beyond municipal corporate hmits. The section states that "(t)he board may by ordinance regulate the use of such garbage, refuse, and solid waste disposal facilites; the nature of the solid wastes disposed of therein; and the method of disposal." Prior to the revision of Chapter 153 of the General Statutes by 1973 Session Law Chapter 822, the authority of the boards of county commissioners to regulate collection and disposal of garbage was contained in Article 22 of Chapter 153. Article 22 did not contain a provision similar to the one in G.S. 153A-292, quoted above. The revision of Chapter 153, effective February 1, 1974, was enacted subsequent to that of Article 13B of Chapter 130. The question is what effect the above-quoted provision has on the mandate contained in G.S. 130-166.18 for the Department of Human Resources to develop a statewide program for solid waste disposal. It is an elemental rule of statutory construction that statutes pertaining to similar matters are to be harmonized and that each statute is to be given its full effect. As previously stated, it is clear that the Legislature intended to estabhsh a comprehensive statewide program for solid waste disposal. It is also clear that the Legislature in G.S. 153A-292 authorized the boards of county commissioners to enact ordinances concerning the use of sohd waste disposal facilities established and operated by the boards. In G.S. 130-17, local boards of health are authorized to adopt more, but not less, stringent rules and regulations to protect and advance the public health where a peculiar local condition or circumstance so requires. As previously mentioned, G.S. 153A-346 provides that where county zoning ordinances and other statutes and ordinances conflict, that which provides the higher standard prevails. Although -43- these two statutes are not applicable to the question under discussion, they indicate legislative intent in similar circumstances. Therefore, it is the opinion of this Office that the clear authority of the boards of county commissioners to enact ordinances pertinent to soUd waste disposal systems under G.S. 153A-292 is limited by the statewide authority and responsibility of the Department of Human Resources to develop a comprehensive program for solid waste disposal. The boards of county commissioners may enact ordinances necessary for the establishment and operation of a facility but those ordinances involving sanitation practices and procedures may not be less stringent than the corresponding rules and regulations of the Commission for Health Services. Robert Morgan, Attorney General Robert R. Reilly Associate Attorney 16 August 1974 Subject: Requested by: Question: Conclusion: Motor Vehicles; Driver's License; Limited Driving Privileges; Bond Forfeiture Honorable E. E. Crutchfield District Court Judge A person has been charged with driving under the influence and has not been tried, his case having been nol prossed upon entry of a judgment absolute on a cash bond. Since, pursuant to G.S. 20-24{c), such forfeiture is equivalent to a conviction, may a limited driving privilege be issued as provided in G.S. 20-1 79(b)? No. G.S. 20-1 79(b)(1) reads in relevant part: -44- "Upon a first conviction only, the trial judge may when feasible allow a limited driving privilege or license to the person convicted for proper purposes reasonably connected with the health, education and welfare of the person convicted and his family...." Tlie entry of a judgment absolute on a cash bond is not a trial nor would the judge entering such order be the trial judge as contemplated in this section. It would appear that the proper procedure would be for the defendant to appear for trial on the charge. The bond forfeiture should be vacated in the event the defendant is tried and the court intends to issue the defendant a hmited driving privilege to avoid conflict with G.S. 20-24(c). Robert Morgan, Attorney General William W. Melvin Assistant Attorney General 16 August 1974 Subject: Mental Health; Mentally 111 or Inebriate Persons; Transportation to State Hospital; Responsibility of County Requested by: Honorable Charles M. Johnson Clerk of Superior Court Montgomery County Question: Conclusion: Is transportation of a mentally ill or inebriate person to a State hospital the responsibihty of the county? Transportation to or from a regional hospital outside the county is the responsibility of the county. -45- G.S. 122-58.14 provides for transportation of a respondent in an involuntary commitment proceeding to or from a clerk or magistrate, a qualified physician, a community mental health facility and a hearing shall be provided by the city or county depending upon whether the respondent is a resident of the city or a resident of the county outside the city limits. This statute provides in pertinent part as follows; "Transportation to or from a regional hospital outside the county, for any purpose, is the responsibility of the county, pursuant to G.S. 122-42." (Emphasis added) G.S. 1 22-42 provides that the cost and expenses of conveying every patient to any hospital from any county or of removing him from the hospital to the county from which he was hospitalized or to the county of his residence when released shall be paid by the treasurer of the county of residence upon order of the board of county commissioners. This statute further authorizes a county, in proper instances, to bring an action to recover such cost. Clearly the Legislature intended local transportation to be furnished by the city or county based upon the residence of the respondent. However, in language that is clear and in no manner ambiguous, responsibility for transportation of a respondent to a regional hospital outside the county is the responsibility of the county; hence, the foregoing conclusion. Robert Morgan, Attorney General Parks H. Icenhour Assistant Attorney General 16 August 1974 Subject: FaciUty Services; Licensing; Appeal From Denial or Revocation of License of a Home for the Aged and Infirm or a Family Care Home A6- Requested by: Questions: Mr. I. O. Wilkerson, Jr. Director Division of Facility Services Department of Human Resources In case of an appeal from denial or revocation of a license to operate a home for the aged and infirm or a family care home in this State, what official or agency is authorized to: (a) determine the appropriate rules governing such appeal? (b) furnish administrative support for processing such appeal? (c) conduct a hearing on such appeal? (d) determine the ultimate administrative action to be taken on such appeal? Conclusions: In case of an appeal from denial or revocation of a Ucense to operate a home for the aged and infirm or a family care home in this State: (a) the Commission of Social Services prescribes the appropriate rules and regulations governing such appeal; (b) the Division of Facility Services furnishes administrative support for processing such appeal; (c) the Director, Division of Facility Services, or a person designated by him, conducts the hearing on such appeal; -41- ; (d) as to a home for the aged and infirm, the Division of Facility Services is responsible for ultimate administrative action taken on the appeal, after review of the transcript of the hearing by the Division. As to a family care home, the Division of Facility Services is responsible for ultimate administrative action taken on the appeal after review of the transcript of the hearing by the Social Services Commission. Final revocation of the license of a home for the aged and infirm can be made only after confirmation thereof by the Division of Facihty Services and final confirmation of the revocation of a Ucense of a family care home can be made only after confirmation thereof by the Social Services Commission. Prior to the Organization Act of 1973, the State Department of Social Services was responsible for licensing the types of homes involved here, acting under rules and regulations adopted by the State Board of Social Services. The rules and regulations formulated by the Board charged the State Department of Social Services, in general, with administrative support of appeals processing, and required the State Commissioner of Social Services, or a person designated by him, to conduct appeals hearings. These rules further provided that ultimate determination on an appeal would be made by the State Department of Social Services after review of the transcript by the Department in the case of a home for the aged and infirm and after review of the transcript by the Board in the case of a family care home. Elsewhere in the rules, revocation of such licenses was prohibited except after final confirmation of the first type of Ucense described by the Department and final confirmation of the revocation of the second type by the Board. These rules and regulations, as originally promulgated, still contain the same language, and, by virtue of G.S. 143B-20, retain their legal efficacy. -48- Under the Organization Act of 1973, however, the position of Commissioner of Social Services and the Department of Social Services were aboUshed, while the Social Services Commission was established. See G.S. 143B-153 through G.S. 143B-156. Since the effective date of the Organization Act, the Social Services Commission is responsible for promulgation of rules and regulations for licensing and inspection of the homes under discussion (G.S. 143B-153), and the Department of Human Resources is statutorily responsible for the hcensing and inspecting of these homes, acting under the rules and regulations of the Social Services Commission (G.S. 108-77). Giving additional illumination upon the question of assumption of tlie responsibihties prescribed in the licensing rules and regulations, G.S. 143B-7 provides as follows: "§143B-7. Continuation o//w«cr/o«s. -Each principal State department shall be considered a continuation of the former agencies to whose power it has succeeded for the purpose of succession to all rights, powers, duties, and obligations of the former agency. Where a former agency is referred to by law, contract, or other document, that reference shall apply to the principal State department now exercising the functions of the former agency." There can be no question that the hcensing rules and regulations involved here are "documents" within the context of G.S. 143B-7. Thus, applying this section to the present problems, it is clear that the responsibilities and authority previously vested in the Board of Social Services and the Department of Social Services devolved upon the Secretary of Human Resources and the Department of Human Resources, respectively, by virtue of the Organization Act. Subsequent to the effective date of the Organization Act, the Secretary of Human Resources, acting under the authority of G.S. 143B-10, promulgated directives which created a Division of Facility Services within his Department, appointed a Director of this new Division, and transferred the hcensing functions of the types of homes under scrutiny to this new Division. (See Department of -49- Human Resources directives numbers 1 1-73, 1 1-73 (Change 2), 1 1-73 (Change 3), and 14-73). These transfers and delegations of authority have resulted in the responsibilities and authorizations for actions on appeals as described in Conclusions (a) through (d) above. Robert Morgan, Attorney General WiUiam F. O'Connell Assistant Attorney General 16 August 1974 Subject: Requested by: Question: State Departments, Institutions and Agencies; Aid to the BUnd, Chapter 111 of the General Statutes; Legal Authority of the Division of Services for the Blind to Enter into Contract with Manufacturer's Representative Under the Specific Exception in G.S. 1 1 1-27.1 Exempting the Executive Budget Act from Applicability to Such Contractual Arrangement. Mr. Stephen A. Johnson Business Affairs Section Division of Services for the BUnd Department of Human Resources May the Business Enterprises Program, Business Affairs Section of the Division of Services for the BUnd enter into a contractual agreement with a manufacturer's representative/broker for the sale of products produced by the clients of the Self-Employment Program without violating the Purchases and Contracts Section of the Executive Budget Act? Conclusion: The Business Enterprises Program, Business Affairs Section of the Division of Services -50- for the Blind may enter into a contractual agreement with a manufacturer's representative/broker for the sale of products produced by the clients of the Self-Employment Program without violating the Purchases and Contracts Section of the Executive Budget Act. G.S. 111-27.1 provides that the Department of Human Resources is authorized to conduct activities "to promote the rehabilitation and employment of the Wind, including the operation of various business enterprises suitable for the blind to be employed in or to operate." The Executive Budget Act which provides in G.S. 143-49 that the Director of Administration is to contract for "all contractual services and needs of State government, or any of its departments, institutions, or agencies; or to authorize any department, institution, or agency to purchase or contract for such services," applies "to the operation of such (blind) enterprises as to all appropriations made by the State to aid in the organization and establishment of such businesses." G.S. 111-27.1 However, there is a specific exception carved out of G.S. 1 1 1-27.1 respecting "(P)urchases and sales of merchandise or equipment, the payment of rents and wages to blind persons operating such businesses, and other expenses thereof, from funds derived from local subscriptions and//-om the day by day operations" which "shall not be subject to the provisions of law regulating purchases and contracts, or to the deposit and disbursement thereof appUcable to State funds but shall be supervised by the Department of Human Resources." (Emphasis supplied) Since this manufacturer's representative would be selling the merchandise of the clients of the Self-Employment Program and would derive his remuneration from the sales he is able to make, it is our opinion that a contract between the Division of Services for the Blind and this party for such services would fall within the purview of the exception embodied in G.S. 111-27.1. The compenstion of the manufacturer's representative can be considered an expense of the sale of the client's merchandise to be paid from the day by day operations, i.e., commission on the amount of sales produced. Accordingly, under G.S. 111-27.1 the contractual -51- arrangement sought need only be supervised by the Department of Human Resources and is not subject to the Purchases and Contracts Section of the Executive Budget Act. Robert Morgan, Attorney General William Woodward Webb Assistant Attorney General 28 August 1974 Subject: Requested by: Questions: Conclusions: Mental Health; Voluntary Admissions; Involuntary Return, Involuntary Commitment, and Discharge of Escapee From A Treatment FaciUty Mr. R. J. Bickel Assistant Director of Administration Division of Mental Health Services Department of Human Resources If a patient who has been voluntarily admitted to a North Carolina treatment facility escapes from that facility: (a) may he be involuntarily returned to that facility by a law enforcement officer upon request by the facility? (b) may involuntary commitment proceedings be instituted against him during his absence, and, if so, by whom? (c) if the escapee voluntarily returns to the faciUty but still desires to be discharged therefrom, do the usual provisions for release apply? If a patient who has been voluntarily admitted to a North Carolina treatment -52- facility escapes from that facility: (a) he may be involuntarily returned to that facility by a law enforcement officer upon the request of the facility, although there is no absolute requirement that his return be so requested. (b) involuntary commitment proceedings may be instituted against him during his absence by any person who has sufficient knowledge of the situation upon which to base the required affidavit. (c) if the escapee voluntarily returns to the facility but still desires to be discharged and involuntary commitment proceedings are not instituted, he must be discharged within seventy-two (72) hours from the time of execution of his written request for release. G.S. 122-56.3 makes it very clear that a written request for release is a prerequisite for the release of a patient who has been voluntarily admitted to a North Carolina treatment facility and that the facihty may hold the patient for a period of seventy-two (72) hours after the submission of such request. In the case of a minor, this request for release must be executed by a parent, person standing in loco parentis or guardian, as appropriate. See G.S. 122-56.5 and opinion of the Attorney General to Mr. R. J. Bickel, Assistant Director for Administration, Division of Mental Health Services, dated 14 May 1974. Thus, since the requisite statutory formalities have not been complied with in the case of an escapee, the facility may secure the services of a law enforcement officer to obtain his return if such is appropriate. The governing statutes do not require that the return of an escapee be requested, however, and it would seem that the proper course in a given case would be based upon the situation present there. The action taken should be based upon a recognition that the admission of the patient was originally a voluntary one and that, -53- absent other action, the patient may secure his release from the facihty seventy-two (72) hours after return by making application therefor. Other factors involved in making an intelligent determination of the proper course of action would be whether the original voluntary admission was really in Heu of involuntary commitment, and whether the individual's present mental condition is severe enough to meet the requirements for involuntary commitment and to indicate the propriety of such commitment. In some cases, if involuntary commitment is an order, then initiation of these proceedings-with the resultant taking into custody of the patient in accordance with G.S. 1 22-58.3-might well be a simpler, more effective course than seeking his return as an escapee. If involuntary commitment appears appropriate, G.S. 122-58.3 authorizes "...Any person who has knowledge of a mentally ill or inebriate person who is imminently dangerous to himself or others" to execute the requisite affidavit which serves as the cornerstone of this type of proceeding. It would seem that personnel at the treatment facihty who have recently observed the patient would be in a singularly good position to execute the affidavit, with no particular functionary being preferred over another as the affiant. Of course, in some instances, a member of the family or other person might be more suitable to perform this act, again depending on the facts present. Where the escapee is a minor, it would seem that the parent, person standing in loco parentis or guardian would normally, as a practical matter, be the determiner as to whether the escapee should be returned in his capacity as a voluntary admittee. Where involuntary commitment appears appropriate, though, while the wishes of the parent, etc., would be worthy of serious consideration, such would not legally preclude the initiation of involuntary commitment proceedings, where appropriate. James H. Carson, Jr., Attorney General William F. O'Connell Assistant Attorney General -54- 28 August 1974 Subject: Requested by: Questions: Conclusions: Mental Health; Criminal Law and Procedure; Involuntary Commitment of a Defendant Sent to a Mental Health Facility Under G.S. 122-83 Mr. Michael Rieder Regional Administrator Forensic Services Division of Mental Health Services Department of Human Resources (1) What findings must be made by a judge in order to warrant placing a defendant in a State mental health facility pursuant to G.S. 122-83? (2) Does G.S. 122-83 apply in cases where a defendant is charged with either a misdemeanor or a felony and does the duration of the commitment depend upon the maximum sentence permissible for the crime involved? (3) What, if any, proceedings are necessary after the arrival at a State mental health faciUty of a defendant who has been sent there under the provisions of G.S. 122-83? (4) When charges are still pending against a defendant sent to a State mental health facihty under the provisions of G.S. 122-83, should the court be notified if his condition changes so that he is mentally capable of standing trial or discharge from the facihty is appropriate? (1) The minimum necessary finding to warrant sending a defendant to a State mental health facility pursuant to -55- G.S. 122-83 is a finding that the defendant is mentally ill at the time of arraignment and for that reason cannot be tried for the crime alleged. (2) G.S. 122-83 applies regardless of whether a felony or misdemeanor is involved and the permissible punishment for the crime involved is not controlling of the period of commitment. (3) The proceedings, time Umitations, and provisions for rehearings, set forth in Article 5 A, Chapter 122, General Statutes of North Carolina should be followed for the processing of a defendant who has been sent to a State mental health facility pursuant to G.S. 122-83. (4) When charges are still pending against a defendant placed in a State mental facility pursuant to G.S. 122-83, the appropriate court should be notified by the facihty if a change in the defendant's condition indicates that he is mentally capable of being tried or that he should be discharged from the facihty. In pertinent part, G.S. 122-83 provides as follows: "All persons who may hereafter commit crime while mentally ill, and all who, being charged with crime, are adjudged to be mentally ill at the time of their arraignment, and for that reason cannot be put on trial for the crimes alleged against them, shall be sent by the court before whom they are or may be arraigned for trial, when it shall be ascertained by due course of law that such person is mentally ill and cannot plead, to any State mental health facility in North Carolina, and they shall be confined therein under the rules and regulations prescribed by the Commission for -56- Mental Health Services under the authority of this Article, and they shall be treated, cared for, and maintained in said facility..." Reading of this Section immediately reveals several significant things. First, there is no requirement as to the nature, type or degree of crime charged. Second, there are no specific requirements in the language of the Section for an evaluation by the hospital to determine if the defendant is mentally capable to stand trial or mentally responsible for his crime nor is there a specific directive that the hospital report back to the court on this subject. Third, no time limitations are provided in the language of the Section, so that, under the literal wording thereof, open-end detention would be permitted absent some sort of additional proceedings or action. This Office has previously had occasion to examine the provisions of G.S. 122-84 and G.S. 122-91 dealing, inter alia, with the general subject of disposition of defendants lacking mental capacity or mental responsibility to stand trial. See 43 N.C.A.G. 261 (1973). There, it was concluded that the proceedings authorized by Article 5 A, Chapter 122, General Statutes of North Carolina should be utilized for involuntary commitment of individuals falling under the provisions of those sections. The same rationale involved there is proper here. There is a serious question as to whether G.S. 122-83 was ever intended to serve as the actual vehicle of commitment without implementation as to procedures being derived from other sources. See State v. Lewis, 11 N.C. App. 226, pp. 233-234 (1971). Though the Court of Appeals, under the facts of Lewis, felt that it was unnecessary to decide that specific question, it clearly ruled that some form of "due process" must be insured to defendants in these situations (op. cited at p. 238), and tacitly recognized that open-end commitment without limitation as to time and conditions would be improper (op. cited at pp. 240-241). Article 5A has been rewritten by the General Assembly since the date of the opinion set forth at 43 N.C.A.G. 261. Therefore, some of the language of the old statute relied upon in our prior opinion is no longer present in the current statute. However, the new Article 5 A contains the following policy declarations indicative of legislative intent : -57- "§122-58.1. Declaration of policy.-W is the policy of the State that no person shall be committed to a mental health facility unless he is mentally ill or an inebriate and imminently dangerous to himself or others; that a commitment will be accomplished under conditions that protect the dignity and constitutional rights of the person; and that committed persons will be discharged as soon as a less restrictive mode of treatment is appropriate." (Emphasis supplied) Based upon this language and relying upon judicial decisions in this area-notably Jackson v. Indiana, 406 U.S. 715, 718, (1972), and with particular reference to the portions thereof quoted in 43 N.C.A.G. 261 at p. 263-it is clear that open-end, unUmited detention of a criminal defendant based upon his capacity to stand trial would be improper and illegal. Examining the language of G.S. 122-83, it is also clear that a defendant may still "be sent" to a State mental facility under that Section upon a finding by the judge that he is so mentally ill at the time of his arraignment that he cannot be tried. Obviously, under settled North Carolina law, in arriving at that conclusion the judge would have to find that this individual was incapable of understanding the nature of the proceedings and of participating in his own defense. However, upon arrival at the facility, the only procedures available for processing this defendant are found in the provisions of Article 5A, Chapter 122, and the provisions of that Article, including the time limitations, provisions for future examination of the case and rehearings thereon, should be followed. It would appear that, normally, G.S. 122-83 will be utiUzed in situations wherein the pending charge against the defendant has not been dismissed or otherwise disposed of. Therefore, though the section contains no specific language requiring a report back to the judge, incorporation of such a directive in the order of the court would be entirely appropriate. Further, even in the absence of such a specific directive, notification of the court of the defendant's condition, of his ability to stand trial, and of any plans to discharge him from the faciUty should be made to the court issuing the order under the provisions of G.S. 122-83. -58- James H. Carson, Jr., Attorney General William F. O'Connell Assistant Attorney General 28 August 1974 Subject: Requested by: Questions: Conclusions: Public Contracts; Counties; Lease-Purchase Contract Subject to Public Bidding Requirements of Article 8, Chapter 143 Mr. Bruce Yarrington Assistant to County Administrator Moore County (1) Does a county have authority to purchase fire trucks and other needed equipment under a lease-purchase contract? (2) Must such contract comply with the provisions of Article 8, Chapter 143 of the General Statutes relating to public bids? (1) Yes. (2) Yes. G.S. 153A-158 authorizes counties to acquire real and personal property by gift, grant, devise, bequest, exchange, purchase, lease, or any other lawful method, and the county may acquire the fee or any lesser interest in such property. G.S. 153A-165 authorizes counties to lease, as lessee, with or without option to purchase, any real or personal property for any authorized public purpose. A lease of personal property with an option to purchase is subject to Chapter 143, Article 8 of the General Statutes. G.S. 143-129 specifies when public bidding is required. Thus if the cost of the fire truck or equipment is within the cost requirements -59- of G.S. 143-129, the lease-purchase contract must be let on formal bids. Informal bids could be required pursuant to G.S. 143-131. Of course, G.S. 152-28(b) is applicable to such contracts and appropriations must appear in the budget for the sum to fall due during the fiscal year. James H. Carson, Jr., Attorney General James F. Bullock Deputy Attorney General 28 August 1974 Subject: Requested by: Questions: State Departments, Institutions, and Agencies; Chapter 1318 of the 1973 Session Laws, Second Session; Direct Grants to Economic Opportunity Agencies from the Department of Human Resources Mr. David T. Flaherty Secretary Department of Human Resources (1) Does the Department of Human Resources have the authority under Chapter 1318, 1973 Session Laws to make allocations of the State appropriations provided in Section 9 to eligible community action agencies in the absence of notice of termination of funding by the federal Office of Economic Opportunity? (2) Are allocations to Caswell Action Committee, Inc., and/or Rockingham County Fund, Inc., authorized under Chapter 1318 in the absence of notice of termination of funding by the federal Office of Economic Opportunity to the eligible community action programs in North Carolina? -60- Conclusions: (1) The Department of Human Resources does not have the authority under Chapter 1318, 1973 Session Laws to make allocations of the State appropriations provided in Section 9 to eligible community action agencies in the absence of notice of termination of funding by the federal Office of Economic Opportunity. (2) Allocations to Caswell Action Committee, Inc., and/or Rockingham County Fund, Inc., are not authorized under Chapter 1318 in the absence of notice of termination of funding by the federal Office of Economic Opportunity to the eUgible community action programs in North Carolina. The preamble to Chapter 1318 of the 1973 Session Laws, Second Session, makes explicit that the financial obligation to provide direct grants to economic opportunity agencies is contingent upon a loss of federal financial assistance from the United States Office of Economic Opportimity: "Whereas, continued federal assistance from the United States Office of Economic Opportunity (OEO) for these agencies is in grave doubt beyond June 30, 1974; and "Whereas, the State should provide standby funds to assist these local agencies in the event federal OEO funds are cut off..." (Emphasis supplied) This conclusion is supported by other sections of Chapter 1318: "Sec. 4. Eligibility for State financial assistance.-The North Carolina Department of Human Resources is directed to allocate funds provided by this act for basic administrative costs to agencies which on June 30, 1973, were receiving funds from OEO as community -61- action agencies under 42 U.S.C.A. 2808, or their legal successors ('eligible agencies'). Caswell Action Committee, Inc., and Rockingham County Fund, Inc., are deemed to be eligible agencies for this purpose. "Sec. 5. Allocation of State financial assistance-Funds to eligible agencies shall be allocated as follows: (1) An eUgible agency wishing to receive funds under this act must apply to the Department for said funds within 60 days after notice of termination of funding provided to said eligible agency for administrative costs by OEO or its successor." (Emphasis supplied) Sections 5(3) and 9 provide additional support for our conclusion; "Within 90 days, but after 60 days from notice of termination by OEO of funding for the administrative costs of eligible agencies..." (§5(3), Chapter 1318) (Emphasis supplied) "...If sufficient funds for the basic administrative costs of the economic opportunity agencies in North CaroUna are made available to these agencies from the federal government by July 1, 1974, this appropriation shall revert to the General Fund..." (§9, Chapter 1318) Finally, if there are any doubts remaining as to the clear intent of the General Assembly with respect to the disbursement of funds appropriated by Chapter 1318, they should be quickly resolved by reference to Section 5(6) providing: "An otherwise eligible economic opportunity agency may quaUfy for funds under this act only after notice of termination of funding provided for administrative costs by OEO or its successor." (Emphasis supplied) Although there are other duties and responsibilities reposed in the Department of Human Resources by Chapter 1318 (in particular, -62- Section 3(3) and (4)) whose performance is not contingent on the loss of federal funds, there is no question but that as a condition precedent to allocating State funds appropriated by this act, there must be at least a notice of termination of funding to the eUgible community action agency for administrative costs by OEO or its legal successor, if not an actual termination. Caswell Action Committee, Inc., and Rockingham County Fund, Inc., under Section 4 of Chapter 1318 are simply added to the pool of economic opportunity agencies eligible for State funds should their federal financial assistance for administrative costs be cut off. James H. Carson, Jr., Attorney General William Woodward Webb Assistant Attorney General 3 September 1974 Subject: Motor Vehicles; Emergency Warning Devices; Civil Air Patrol Emergency Service Vehicles Requested by: Major Jack D. Cabe North CaroHna State Highway Patrol Question: Are Civil Air Patrol emergency service vehicles authorized to use emergency warning devices when actually engaged in emergency search and rescue operations? Conclusion: Yes The North Carolina Wing of the Civil Air Patrol was created pursuant to Chapter 167 of the General Statutes of North Carohna and transferred to the Department of MiUtary and Veterans Affairs in 1973 by General Statute 143B-248. The Civil Air Patrol is an auxiliary of the United States Air Force and is charged with the responsibility of conducting air search and -63- ground rescue and recovery of persons involved in aircraft accidents and as a part of the civil defense preparedness group has responsibility for rescue and recovery in case of natural or man-made disasters and other emergency situations. Taking into consideration the nature and the duties of the Civil Air Patrol in light of General Statutes 20-125, 20-156 and 20-157, we are of the opinion emergency service vehicles of the Civil Air Patrol when actually engaged in emergency service and rescue operations fall within the purview of the aforesaid sections of the General Statutes of North Carolina. James H. Carson, Jr., Attorney General William W. Melvin Assistant Attorney General 3 September 1974 Subject: Requested by: Mental Health; Involuntary Commitment and Voluntary Admissions; Consent to Surgery on Mental Patients; Apphcability of Patients' Rights Bill to Local General Hospitals Dr. N. P. Zarzar Director Division of Mental Health Services N. C. Department of Human Resources Questions: (1) What section of the North Carolina statutes is controlling with regard to the consent required for surgery on patients voluntarily admitted or involuntarily committed as mentally ill persons or inebriates under the provisions of Article 4 or Article 5A of Chapter 122 of the General Statutes? -64- (2) Does the same section control on the subject of consent for surgery where the patient has been voluntarily admitted or involuntarily committed to a local general hospital under Article 4 or Article 5A of Chapter 122 of the General Statutes? Conclusions: (1) G.S. 122-55.6 is the controlling section of the North Carolina statutes with regard to the consent required for surgery on patients voluntarily admitted or involuntarily committed as mentally ill persons or inebriates under the provisions of Article 4 or Article 5A of Chapter 122 of the General Statutes. (2) G.S. 122-55.6 does control on the subject of consent for surgery where the patient has been voluntarily admitted or involuntarily committed to a local general hospital under Article 4 or Article 5A of Chapter 122 of the General Statutes. G.S. 122-55.6, which was enacted as a part of the so-called "Patients' Rights Bill" by the 1973 Session of the General Assembly, affords the following guarantees to patients in "treatment facilities": "Treatment involving...surgery, other than emergency surgery, shall not be given without the express and informed written consent of the patient if competent, otherwise of the patient and guardian as hereinafter defined, unless the patient has been adjudicated an incompetent under Chapter 35 of the General Statutes and has not been restored to legal capacity, in which case express and informed written consent of his guardian or trustee appointed pursuant to Chapter 35 of the General Statutes must be obtained. Such consent may be withdrawn at any time by the person who gave such consent." It is interesting to note that G.S. 122-56.5 contains virtually the -65- same provisions relative to persons who have been voluntarily admitted to treatment facilities and who have been adjudicated non compos mentis. For purpose of the Patients' Rights Bill, G.S. 122-36(g) contains the following illuminating language as to what is to be considered a treatment facility: "(g) The words 'treatment facility' shall mean any hospital or institution operated by the State of North Carolina and designated for the admission of any person in need of care and treatment due to mental illness or mental retardation, any center or facility operated by the State of North Carolina for the care, treatment or rehabilitation of inebriates, and any community mental health clinic or center administered by the State of North CaroHna." With regard to voluntary admissions of mental patients, G.S. 122-56. 2(b) specifies: "(b) the words 'treatment facility' as used in this article, mean any hospital or institution operated by the State of North Carolina and designated for the admission of any person in need of care and treatment due to mental illness or inebriety, and any community mental health clinic or center operated in conjunction with the State." As to involuntary commitment, the statutes do not speak in terms of a "treatment facility". According to the language of G.S. 122-58. 8(b), involuntary commitment is authorized: "...at a mental health facility, public or private, designated or licensed by the Division of Mental Health Services. Treatment at a private faciUty shall be at the expense of the respondent to the extent that such charges are not disposed of by contracts between the county and the private facility." Some question has arisen as to the effect on mental patients of the provisions of G.S. 130-191 which deals with "inmates" of "any -66- penal or charitable hospital or institution of the State of North CaroUna " There are some minor differences between the provisions of that statute and G.S. 122-55.6. However, it is noted that GS 130-191 had its genesis in 1919 and that the latest specific change thereto was engrafted by the General Assembly m 1957 It would appear that the later more specific provisions of G S 122-55 6 dealing with the Umited question of mental patients admitted or committed to treatment facilities, is the controlhng statute and will prevail where there are conflicts between it and G.S. 130-191. In fulfllling the requirements levied under current statutes for the care and treatment of mentally ill patients and inebriates, utihzation of local general hospitals as the facilities for inpatient care has become a common place occurrence throughout the State This use is in keeping with the basic desire to treat the patient locally , where possible, and plans involving such use are formulated under the authorization of G.S. 122-58.16. In such instances clearly the patients voluntarily admitted or involuntarily committed to the local general hospitals should be given the same rights as those who are placed in facilities operated by governmental entities. As a result, the provisions of G.S. 122-55.6 afford the statutory guidance o local general hospitals concerned with the problem of consent to surgery on patients voluntarily admitted or involuntanly committed to them under the provisions of Article 4 or Article 5 A. James H. Carson, Jr., Attorney General William F. O'Connell Assistant Attorney General 3 September 1974 Subject: Requested by: Mental Health; Area Mental Health Boards; Authority to Set Salaries of Employees Mr. R. J. Bickel Deputy Director for Administration Division of Mental Health Services N. C. Department of Human Resources -67- Questions: (1) In an area mental health program encompassing only a single county, who has the authority to set the wages of employees of the area mental health program? (2) In an area mental health program encompassing multiple counties, who has the authority to set the wages of employees of the area mental health program? Conclusions: (1) In an area mental health program encompassing only a single county, the area mental health board has the authority to set the wages of employees of the area mental health program. (2) In an area mental health program encompassing multiple counties, the area mental health board has the authority to set the wages of employees of the area mental health program. By virtue of Article 2C, Chapter 122, General Statutes of North Carolina, the Legislature authorized the establishment of area mental health programs to serve the population of their respective geographic entities. These areas may include single or multiple counties. The present questions have apparently arisen because of uncertainty as to whether employees of the area mental health programs are "county employees" falling within the purview of G.S. 126.9. Each area mental health program is administered by an area mental health board which "...constitutes an entity created by the legislature with governmental functions." See 42 N.C.A.G. 120 (1972). This Office has previously taken the position that an area mental health program is under the authority and control of its mental health board and not the county board or boards of commissioners. See 41 N.C.A.G. 778 (1972). By virtue of the basic rationale involved in the two prior opinions of this Office to the effect that area mental health programs are -68- separate entities, it must, of necessity, follow that the employees involved are employees of the area program rather than county employees. It must be recognized, of course, that the actions of the area mental health boards are subject to the rules and regulations of the State Commission for Mental Health Services and are required to act jointly with the Department of Human Resources in developing annual plans. See G.S. 122-35. 20(e). Of great significance in interpreting the intent of the General Assembly are the provisions of G.S. 122-35. 20(a) through (d). Therein, it is provided that the boards of county commissioners shall have representation on the area mental health board, and, in some instances, can actually serve as the area mental health board or appoint all members thereof. Thus, it is apparent that it was the legislative intent that the area mental health program be a separate entity but yet be in a position to receive the benefit of some guidance and advice from the boards of county commissioners. James H. Carson, Jr., Attorney General William F. O'Connell Assistant Attorney General 5 September 1974 Subject: Constitutional Law; Executive Powers; Authority of the Governor of North Carolina to Transfer the Office of Child Development from the North Carolina Department of Administration to the North Carohna Department of Human Resources and the State Office of Economic Opportunity from the North Carolina Department of Human Resources to the North Carolina Department of Administration; Article III, Section 5(10) of the Constitution of North Carolina. Requested by: Honorable James E. Holshouser, Jr. Governor of North Carolina -69- Questions: (1) May the Governor of North CaroHna transfer the Office of Child Development from the North Carolina Department of Administration to the North Carolina Department of Human Resources and the State Office of Economic Opportunity from the North Carolina Department of Human Resources to the North Carolina Department of Administration? (2) Does the Executive Order effecting such transfer have to be submitted to the General Assembly for consideration? Conclusions: (1) The Governor of North Carohna may transfer the Office of Child Development from the North Carolina Department of Administration to the North Carolina Department of Human Resources and the State Office of Economic Opportunity from the North Carolina Department of Human Resources to the North CaroHna Department of Administration. (2) The Executive Order effecting such transfer does not have to be submitted to the General Assembly for consideration. Article HI, Section 5(10) of the Constitution of North Carolina provides, inter alia: "...the Governor may make such changes in the allocation of offices and agencies (of the State) and in the allocation of those functions, powers, and duties as he considers necessary for efficient administration. If those changes affect existing law, they shall be set forth in executive orders, which shall be submitted to the General Assembly not later than the sixtieth calendar day of its session..." -70- The Governor is undoubtedly empowered to effect the transfer of the Office of Child Development from the North Carolina Department of Administration to the North Carolina Department of Human Resources. Moreover, since such transfer in no way affects existing law, no Executive Order need be submitted to the General Assembly. The transfer of the State Office of Economic Opportunity from the Department of Human Resources to the Department of Administration is only shgh |
OCLC Number-Original | 2640733 |