Honorable James E. Barlow Opinion No. M-432

CriminalDistrictAttorney Bexar County Courthouse Re: San Antonio, Texas '78204 Authority and responsibility of heads of mental hospitals with regard to return of patj~ents

absent without authority from detention on Dear Mr. Barlow: voluntary commitment.

In your request for opinion of this office you state that, "A question,mutual toPeace Officers and Heads of Private Mental Hospitals,has been raised by both factions regarding their respective authorities, legal obligations,and/or responsibilitiesunder the Mental Health Code in the area of voluntarily committedpatients in Private Mental Hospitals;" and, in particular,you question the, "legality of actions takenby both Heads of Private Mental Hospitals and Peace Officers under authority of V.A.T.S.,Art. 5547-72, in cases of escaped or awol voluntarily committedpatients from Private Mental Hospitals."
Article 55'17-72,

Vernon's Civil Statutes,provides as follows:
"(a) The head of a mental hospital shall initiate action to regain custody of any patient who is absent without authority.
"(b) It is the duty of any health or peace officer to take into protective custody and detain any such patient and to report the same to thehead of themental hospital or to,the county judge and upon the order of either to transport thepatient back to themental hospital."

It is apparent thatArticle 5547-72 provides a means for a return to themental hospital of thosepatients who have absented themselves therefromwithout consent; the only question is as towhether subdivision (b) thereofapplies to thepatient who has voluntarily committedhimself, to the extent thathe may be detained and returned to thehospital without further proceedings under theMental Health Code.

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Article 5547-22,V.C.S., provides as follows:

"The head of a mental hospitalmay admit as a voluntary patient any person for whom a proper application is filed, if he determinesupon the basis of preliminary examination that theperson has symptoms of mental illness and will benefit from hospitalization." (Emphaslssupplied) Entirely different and more stringent requirementsapply to involuntaryhospitalization. These requirementsare set out under the emergency admission proceedure of Article 5547-27, et seq.; the temporaryhos italization for observationand/or treatmentprocedure ofArticle 55E ;1

7- 1 et seq., ofArticle 5547- and the indefinite commitmentprocedure

0, et seq.; and each spell out a requirement for allegation, and court determination, that thepatient ismentally ill and that for his own welfare and protection of th
aers he requires such d e protection or etention .and/ortreatment.

As stated before,Article 5547-22 authorizes thehead of a mental hospital to admit a voluntarypatient under the circumstances there set out. Article 5547-68 authorizes thehead of such mental hospital to admit and detain any patient in accordancewith the procedures provided by the voluntar 5547-22 through55

---v=z? hospitalizationprovisions;and Article

set out the terms and procedures of such voluntary hospitalization, includingprovisions as to admission, advisingpatients of their rights, spelling out the right of release of such patient and the fact thatno other sort of commitment shall be sought for a voluntarypatient unless a request for his release has been filed, but makes no provision for apprehension or return to the hospital of such patient.

In accordancewith the provisions for a voluntary commitment, the head of a mental hospital may admit such patient and is free from liability for detaining such patient by reason of the contractual arrangement thereinprovided and by reason of Article 5547-18 which exempts all persons acting in good faith, reasonablyand without negligence, from all liability, civil or criminal, incident to the actions therein enumerated.

However, once a patient absents himself without consent from such mental hospital he is no longer a voluntarypatient and although he may have, in so doing, breached the terms of his agreement,he is in fact, no longerunder a voluntary commitment;and until be changes his mind, any return of him to such hospital would be involuntaryand
as such must be effected under the terms of an involuntarycommitment.
Article 1, Sec. 19 of theTexas Constitution,provides that: )' NO citizen of this state shall be deprived of life, liberty,property,

. . . ) except by due course of the law of the land." Up to the time in question such patient has had no access to a court of,law, much less "due course of law" and although a voluntary commitmentprotects those detaining such person when he is in their custody it does not -2154-. .

Honorable James E. Barlow, page 3 (M-432)

purport to be a "due process" procedure and until a person has been committed in accordance with the statutesand the Constitution (Article 1, Sees. 15 and 15-a),he is a free person with all his civil rights.

It is the opinion of this office that the provisions for summary return of patients tomental hospitals, provided underArticle 5547-72 (b) do not apply to persons who,have absented themselves without consent from a voluntary commitment to a mental hospital without further proceedings under theMental Health Code.

If the condition of a patient who has so absented himself without consent from a voluntary commitment is such that thehead of the mental hospital cr.other appropriate health officer has reason to believe and does believe that ,thepatient is mentally ill and because thereofhe is likely to cause injury to himself or others if not immediatelyrestrained, then and in that eventArticle 5547-72 directs that such official shall initiate action to regain custody of such patient. The proper action in that case, if such patient shows no intention of,voluntarily returning to thehospital, would be theprocedure set out under Article 5547-27, et seq., pertaining to emergency admission for involuntaryhospitalization. If the head of themental hospital or appropriatehealth officer does not believe such urgency in time exists, but does believe that thepatient is mentally 1~11 and that for his own welfare and protection
or theprotection of others the patient requires observation and/or treatment in a mental hospital, and that such patient is not charged with a criminal offense, then and in that event such head of the mental hospital or appropriatehealth officer should initiate action for thepatient's involuntary commitmentunder theprovisions of Article 5547-31, et seq., providing for temporaryhospitalization for observation and/or treatment.

SUMMARY

The provision ofArticle 5547-72 (b),V.C.S., providing for the summary return of patients, absent without consent, to themental hospitals is not applicable topersons who have so absented themselves from a voluntary commitment.

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Honorable James E. Barlow, page 4 (M-432)

Prepared by Harold G. Kennedy AssistantAttorney General

APPROVED:

OPINION COMMITTEE

Kerns B. Taylor, Chairman George Kelton,Vice-Chairman John Banks Bill Allen Roland Allen LouisNeumann
HawthornePhillips ExecutiveAssistant

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