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AGO 1959 No. 53 - July 23, 1959
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John J. O'Connell | 1957-1968 | Attorney General of Washington

COUNTIES - RESPONSIBILITY FOR COSTS UNDER CHAPTER 196, LAWS OF 1959 (COMMITMENT OF MENTALLY ILL).

(1) (2) Chapter 196, Laws of 1959 does not make a county responsible for payment of costs of care, treatment, etc., for mentally ill persons but any financial responsibility of the county is provided for under RCW 71.02.230 where the regular mental illness proceeding has resulted in a finding by a court of mental illness.  (3) Under chapter 196, Laws of 1959 a person detained, who has been found to be mentally ill by a physician within the 12 hour period but who has not been committed and who has been released within the 72 hour period, is liable to the county for the costs incurred.  (4) (5) County commissioners are authorized to enter into agreements with hospitals but such authority is discretionary with the commissioners and in the absence of such an agreement the county is responsible for the costs of care, treatment and custody of a person detained under chapter 196, Laws of 1959.

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                                                                    July 23, 1959

Honorable John J. Lally
Prosecuting Attorney
Spokane County
Spokane 1, Washington                                                                                              Cite as:  AGO 59-60 No. 53

Attention:          Donald N. Olson,Chief Deputy Prosecuting Attorney

Dear Sir:

            In your recent letter, you request our opinion on several questions concerning the interpretation of the provisions of Substitute House Bill 265 (chapter 196, Laws of 1959), which you have stated as follows:

            (1) If a person is held 72 hours or longer in the hospital, is the county responsible for the costs?

            (2) If a person is held less than 72 hours and a regular mental illness proceeding through the court is instituted resulting in a finding of mental illness, is the county responsible for those costs that were incurred in a period of less than 72 hours prior to the issuance of the court order?

             [[Orig. Op. Page 2]]

            (3) If a person is found to be mentally ill as a result of initial examination but later, within the 72 hour period, is released as not dangerous to himself or others, may the county recover the costs?

            (4) Do the county commissioners have any discretion in entering into agreements with the administrative authorities of the hospitals?  For example, if the proposed rate of any hospital appears excessive, may the commissioners refuse to enter into an agreement with the hospital?

            (5) In the absence of an agreement with the hospital, is the county responsible for the care, treatment, and custody of a patient detained in that hospital pursuant to this legislation?

            We answer your first question in the negative and the answers to questions two through five are contained in the analysis.

                                                                     ANALYSIS

            From a thorough study of Substitute House Bill 265 (chapter 196, Laws of 1959), it appears that that legislative enactment was intended to modify the existing mental illness statute relating to the authority of the counties for the care and treatment of mentally ill persons during the period pending commitment to a state hospital.

            It also should be noted that the legislature, in § 3 of the act, directs that it should be liberally construed.  In so far as pertinent, § 3 provides:

            "This chapter shall be liberally construed so that mentally ill persons may receive humane care, treatment and custody and be restored to normal mental condition as rapidly as possible."

            (1) You inquire whether, under the act, the county is responsible for the costs of the detention of an alleged mentally ill person who is "held 72 hours or longer."

            Section 8 of the act deals with the responsibility for the payment of the costs of care, treatment and maintenance of persons detained under the authority of the act.

            Section 8, in so far as pertinent, provides:

            "The costs of care, treatment and maintenance of  [[Orig. Op. Page 3]] all persons detained under the authority of this chapterwho are released within seventy-two hours shall be borne by the county, . . ."  (Emphasis supplied.)

            It is a primary rule of statutory construction that the court is to ascertain and give effect to the intention of the legislature.  Graffell v. Honeysuckle, 30 Wn. (2d) 390, 191 P. (2d) 858.  In addition, another rule of statutory construction is to the effect that when the intent of the legislature is clear from a reading of the statute, there is no necessity for construction.  Johnson v. Department of Labor and Industries, 33 Wn. (2d) 399, 205 P. (2d) 896.

            To the extent of your inquiry as to the county's responsibility for the payment of costs of care, treatment and maintenance for those persons detained 72 hours or longer, we are of the opinion that § 8 is clear and without ambiguity in this respect.  The legislature has unequivocally limited the county's responsibility in § 8 to pay the costs of care, treatment and maintenance for those persons released within the 72 hour period.  Therefore, we are of the opinion that this act does not make counties responsible for the payment of the costs of care, treatment and maintenance for mentally ill persons admitted and detained under the provisions of § 6 who are detained 72 hours or longer without further proceedings.

            (2) "If a person is held less than 72 hours and a regular mental illness proceeding through the court is instituted resulting in a finding of mental illness, is the county responsible for those costs that were incurred in the period of less than 72 hours prior to the issuance of the court order?"

            The responsibility of the county to pay the costs of care, treatment and maintenance, under § 8 of the act, is limited to those cases in which the alleged mentally ill person is "released within 72 hours."  It is our opinion that a person who has been detained under the act, and, within the 72 hour period, has been found to be mentally ill under the provisions of chapter 71.02 RCW, has not been "released" but is subject to commitment to a state hospital, and the responsibility for the payment of the costs of detention and hospitalization is governed by the provisions of RCW 71.02.230.

            RCW 71.02.230 provides as follows:

            "After a person has been found mentally ill under RCW 71.02.200, the court shall, after reasonable notice of the time, place and purpose of the hearing has been given to persons subject to liability under this section, inquire into the ability of the person's  [[Orig. Op. Page 4]] estate, or his spouse, parents or children, or any combination thereof, to pay the charges for transportation and hospitalization in a state hospital, detention pending proceedings, and court costs.  If the court finds that the patient's estate or above named relatives, or combination thereof, are able to pay such charges or any part thereof, an order to such effect shall be entered. . . . If the court finds that neither the patient's estate nor above relatives can pay charges for detention pending proceedings or court costs, such costs shall be borne by the county.  When a patient is a resident of another county, the committing county shall recover from the county of the patient's residence all costs and expenses of the patient's detention and commitment."  (Emphasis supplied.)

            (3) "If a person is found to be mentally ill as a result of initial examination but, later within the 72 hour period, is released as not dangerous to himself or others, may the county recover the costs?"

            Your question No. 3 appears to be directed to the interpretation of the legislature's intention in the language used in the latter portion of § 8 which reads:

            "The county shall have the right to recover from all persons detained under the authority of this chapterless than seventy-two hours for all costs paid by the county:  Provided, That costsshall not be recoverable from persons detained under this actwho are found not to have such mental condition as would render them dangerous to themselves or others."  (Emphasis supplied.)

            Other pertinent provisions of the act which set forth the procedure to be used within the 72 hour period are as follows:

            Section 5 (3) provides:

            "Whenever any person believed to be mentally ill is apprehended or detained:

            ". . .

            "(3) He shall be examined immediately, which shall be within twelve hours thereafter, by a licensed physician and if found not to be mentally ill, he shall be released forthwith."  (Emphasis supplied.)

             [[Orig. Op. Page 5]]

            Section 6 provides in part:

            "If found by the physician to be mentally ill, the person may be admitted and/or detained, and treated in any hospital licensed by the state of Washington or any establishment licensed under the provisions of 71.12 RCW [[chapter 71.12 RCW]], or in quarters designated by the court for the detention of mentally ill persons, for a period not to exceed seventy-two hours . . ."  (Emphasis supplied.)

            Section 7 provides:

            "The superintendent or chief medical officer of the hospital, or quarters designated by the court for detention of mentally ill persons, shall detain, care for and treat personsadmitted under the provisions of section 6 for a period not to exceed seventy-two hours.  Within seventy-two hours the person shall be discharged from the institution in which detained, unless an application be made as provided by RCW 71.02.090 and an order for detention, care and treatment of such person be issued by the court, or unless admitted as a patient under other provisions of law."  (Emphasis supplied.)

            Section 2 of the act makes reference to RCW 71.02.010 for the definition of mentally ill persons.  RCW 71.02.010, in so far as pertinent, provides:

            "As used in this chapter, the following terms shall have the following meanings:

            "'Mentally ill person' shall mean any person found to be suffering from psychosis or other disease impairing his mental health, and the symptoms of such disease are of a suicidal, homicidal, or incendiary nature, or of such nature which would render such person dangerous to his own life or to the lives or property of others."

            We are cognizant of the fact that the legislature in the above quoted portion of § 8 did not choose to use the terms "not to be mentally ill" as found elsewhere in the act but, instead, employed the terms "who are not found to have such mental condition as to render them dangerous to themselves or others."  We are of the opinion that the differences in the choice of language in § 8 are not significant in that a finding that a person is dangerous to himself or others is an essential element of the  [[Orig. Op. Page 6]] determination that a person is mentally ill.

            We are of the opinion, in view of the statutes, supra, that if a person has been detained under this act and a physician has found him to be mentally ill upon an examination made within the twelve hour period, but no application has been made for commitment under RCW 71.02.090, and an order issued for the detention, care and treatment of such person be issued by a court and such individual is released within 72 hours, such an individual is still liable to the county for the costs incurred under this act.  The language of the proviso in § 8 makes it clear that the only individuals who are not liable to the county for the costs incurred are those "who are found not to have such mental condition as would render them dangerous to themselves or others."

            Further, if a person is detained under the act and found mentally ill by the examining physician and a hearing is held by the court under the provisions of chapter 71.02 RCW within the 72 hour period and the court finds the person not mentally ill or dangerous to himself or others, then we are of the opinion the county may not recover the costs from such person.

            (4) "Do the county commissioners have any discretion in entering into agreements with the administrative authorities of hospitals?  For example, if the proposed rate of any hospital appears excessive, may the commissioners refuse to enter into an agreement with the hospital?"

            (5) "In the absence of an agreement with the hospital, is the county responsible for the care, treatment, and custody of a patient detained in that hospital pursuant to this legislation?"

            Section 8 of the act, in so far as pertinent, provides:

            "The costs of care, treatment and maintenance of all persons detained under the authority of this chapter who are released within seventy-two hours shall be borne by the county, and the county shall enter into agreements with the administrative authorities designated in section 7 . . ."

            The answer to your fourth question depends upon whether the legislature intended that the phrase "shall enter into agreements" be mandatory or directory.  There can be little doubt but that frequently the words "shall" and "may" are used interchangeably in the same statute.  State ex rel. Blume v. Yelle, 52 Wn. (2d) 158, 324 P. (2d) 247; Spokane County ex rel. Sullivan v. Glover, 2 Wn. (2d) 162, 97 P. (2d) 628; State ex rel. Department of Public Service v. Northern Pacific R. Co., 200 Wash. 663, 94 P. (2d) 502.  In order to determine the intent of the legislature, recourse  [[Orig. Op. Page 7]] must be had to the rules of statutory construction.  Each case stands upon its own facts.  3 Sutherland on Statutory Construction (3rd ed.) 95, § 5813.

            One of the basic rules of statutory construction which is applicable here is that effect must be given to every word, clause and sentence of a statute.  Group Health Cooperative of Puget Sound v. King County Medical Society, 39 Wn. (2d) 586, 237 P. (2d) 737; 2 Sutherland Statutory Construction (3rd ed.) 339, § 4705.

            In the case ofSpokane County ex rel. Sullivan v. Glover, supra, the court enunciated the rule as follows:

            "As a general rule, the word 'shall' when used in a statute, is imperative and operates to impose a duty which may be enforced, while the word 'may' is permissive only and operates to confer discretion.  These words, however, are frequently used interchangeably in statutes, and without regard to their literal meaning.  In each case, the word is to be given the effect which is necessary to carry out the intention of the legislature as determined by the ordinary rules of construction.  59 C.J. 1079, § 635; 25 R.C.L. 767, § 15.  In our own tax code, the word 'shall' is used in almost every section, and it is apparent that it is employed indiscriminately in both the imperative and the permissive sense.

            "With reference to powers and duties imposed by statute on public officers, it is often difficult to determine whether they are mandatory or merely directory.  Generally speaking, however, where the provisions affect the public interest or are intended to protect a private citizen against loss or injury to his property, they are held to be mandatory rather than directory.  59 C.J. 1076 et seq., § 633; 25 R.C.L. 770 et seq., §§ 17, 18.  Always, however, the prime consideration is the intent of the legislature as reflected in its general, as well as its specific, legislation upon the particular subject."  (Emphasis supplied.)

            Also, seeFaunce v. Carter, 26 Wn. (2d) 211, 173 P. (2d) 526, andSeattle v. Reed, 6 Wn. (2d) 186, 107 P. (2d) 239, wherein "shall" was held to be mandatory rather than directory.

            The answer to your fourth question is in part dependent upon the answer to your fifth question.  The pertinent part of § 8,supra, provides that "the costs of care, treatment and maintenance of all persons . . . shall be borne by the county . . ."  We think the provision in question is clear  [[Orig. Op. Page 8]] and unambiguous and therefore requires no interpretation.  Accordingly, it is our opinion that each county is responsible for the payment of all necessary and reasonable costs incurred for the care, treatment and maintenance of persons detained under the provisions of the act who are released within 72 hours.

            Thus, in the present instance there appears to be no imperative reason why the word "shall" should be construed as mandatory rather than directory, inasmuch as the county is clearly liable for the cost of the care provided pursuant to § 8, regardless of whether an agreement is entered into by it with the administrative authorities.  However, we wish to point out that we are assuming the only benefit to be derived from such an agreement would inure to the county in lower costs and the like, and that no rights of any mentally ill individual would be involved.  Accordingly, since the failure of the county commissioners to enter into an agreement does not deprive any person of his rights (in this case the cost of treatment and care pending a hearing), the word "shall" should be construed as directory rather than mandatory.

            Therefore, it is the opinion of this office that it is permissive but not mandatory that the county commissioners of each county enter into agreements with hospital authorities pursuant to § 8, chapter 196, Laws of 1959.

            We trust the foregoing analysis will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

STEPHEN C. WAY
Assistant Attorney General

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