Bullock, Frank W., Jr.

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Insane Persons -- Guardianship -- Restoration to Sanity After In re Wilson

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NORTH CAROLINA LAW REVIEWVolume 41 | Number 2 Article 132-1-1963Insane Persons -- Guardianship -- Restoration toSanity After In re WilsonFrank W. Bullock Jr.Follow this and additional works at: http://scholarship.law.unc.edu/nclrPart of the Law CommonsThis Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina LawReview by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact law_repository@unc.edu.Recommended CitationFrank W. Bullock Jr., Insane Persons -- Guardianship -- Restoration to Sanity After In re Wilson, 41 N.C. L. Rev. 279 (1963).Available at: http://scholarship.law.unc.edu/nclr/vol41/iss2/13NOTES AND COMMENTSInsane Persons-Guardianship-Restoration to Sanity AfterIn re WilsonIn In re Wilson1 the North Carolina Supreme Court held thatpermanent commitment to a mental hospital without proper noticeand hearing is a violation of due process.2 In addition the court,by way of dictum, placed a construction on the North Carolina in-voluntary commitment and guardianship procedure which is thesubject of consideration here.The North Carolina procedure for involuntary commitment orhospitalization of insane persons is contained in Chapter 122 of theGeneral Statutes. Section 122-46' authorizes the clerk of thesuperior court to hold an informal hearing upon the certification oftwo physicians that a person is in need of observation. At this hear-ing, which is preceded by notice to the allegedly deranged person,the clerk must examine any proper witnesses and the certificates andaffidavits of the physicians. He may then issue an order of com-mitment for an observation period not exceeding sixty days.4 If thisperiod should prove to be insufficient, the clerk may order the personto remain at the hospital for another observation period not exceedingfour months.5 When the observation is completed, the hospitalauthorities must file with the clerk a written report stating theirconclusions as to the patient's sanity. Upon the basis of this reportthe clerk may either order the person discharged or committed in-determinately, as the facts may warrant.' The subsequent dischargeof a person indeterminately committed is upon certification by thesuperintendent of the hospital that the patient has regained hissanity.7The guardianship statutes, quite distinct from the commitmentprocedure, are contained in Chapter 35. Mental incapacity" is the-257 N.C. 593, 126 S.E.2d 489 (1962).2 This note should be read in connection with Note, 41 N.C.L. Rzv. 141(1962) which discusses the constitutional issues involved in this case.8 N.C. GEN. STAT. § 122-46 (Supp. 1961).'If a person committed is found not to be mentally disordered the super-intendent must immediately report this to the clerk who shall order hisdischarge. Ibid.'N.C. GEN. STAT. § 122-46.1 (Supp. 1961).I1bid.TN.C. GEN. STAT. § 122-66.1 (1958).Mental incapacity is the inability to legally manage and understand one'saffairs. It should not be confused with the various medical terms describingtypes of mental illnesses.280 NORTH CAROLINA LAW REVIEW [Vol.41only cause for appointment of a guardian under this Chapter.' Sec-tion 35-210 requires a jury finding of insanity before the clerk isauthorized to appoint a guardian for one not confined in an institu-tion. "Restoration to sanity"" for such person is also by jury trialunder G.S. § 35412 upon the filing of a petition in his behalf.- The certificate of the superintendent of a mental hospital declaringa patient already committed to be insane is sufficient evidence toauthorize the clerk to appoint a guardian.3 A certificate from thesuperintendent may also restore a patient to legal sanity. 4 Upondischarge from a mental institution the patient for whom a guardianhas been appointed may petition the clerk for the guardian's dis-charge. 5 A hearing is then held, with or without a jury at thepetitioner's option. One or more physicians are appointed by theclerk to examine the petitioner and make affidavits as to his mentalstate. Upon a determination of legal competency the clerk must dis-charge the guardian.It should be noted that guardianship is not a necessary element ofcommitment. The two proceedings are complete in themselves.A person may be committed to a mental institution without theappointment of a guardian, just as a guardian may be appointedwithout commitment.The 1957 General Assembly,. in an effort to clarify the effect ofinvoluntary commitment for observation under G.S. § 122-46 onlegal competency, amended the statute by adding the followingparagraph:Neither the institution of a proceeding to have any allegedmentally disordered person committed for observation as pro-vided in this section nor the order of commitment by the clerkas provided in this section shall have the effect of creatingany presumption that such person is legally incompetent forany purpose. Provided, however, that if a guardian or trusteehas been appointed.., under G.S. 35-2 or 35-3 the procedure'N.C. GEN. STAT. §35-2 (Supp. 1961). The adjudication of in-competency and appointment of a guardian are merged into one finding."°N.C. GEN. STAT. § 35-2 (Supp. 1961)." "Restoration to sanity" is used in the statutes to mean a return to mentalcapacity."N.C. GEN. STAT. § 35-4 (Supp. 1961),N.C. GEN. STAT. § 35-3 (Supp. 1961).'4 N.C. GEN. STAT. § 35-5 (Supp. 1961)."5 N.C. GEN. STAT. § 35-4.1 (1950).1963] NOTES'AND COMMENTS 281.for restoration to sanity shall be as is now provided in G.S.35-4 and 35-4.1. x6It had been expressly held prior to this amendment that the pro-cedure outlined in Chapter 35 did not apply to a person involuntarilycommitted to a mental institution under G.S. § 122-46. His remedywas by habeas corpus, not jury trial."The construction placed on the amendment by the North CarolinaSupreme Court, however, appears to be contrary to the expresslanguage of the statute and inconsistent with the legislative intent.The court's dictum in the principal case reads the amendment toprovide that restoration to sanity for one committed under G.S.§ 122-46 may be had under G.S. §§ 35-3, 35-4, and 35-4.1. Theysaid that "The amendment removes from G.S. § 122-46 the objectionthat a traditional trial by jury is not provided as a means of de-termining the issue of sanity. Apparently the requirement that aguardian be appointed and made a party is to give binding effect toan adverse verdict by the jury."'" The court said a judgment that aperson is lawfully detained and insane exceeds the scope of habeascorpus. 9 They concluded by saying that:As a more practical approach, however, a guardian may beappointed upon the basis of the superintendent's certificate asprovided in G.S. 35-3. A petition, on the application of somerelative or friend, may be filed invoking the procedure underG.S. 35-4 and have a jury pass upon Mrs. Wilson's sanity.The guardian should be a party to the end the finding of thejury, if adverse, may have finality until a material change incondition occurs.20This interpretation by the court seems to embrace procedures notcontemplated by the amendment. The basic steps suggested are".C. GEx. STAT. § 122-46 (Supp. 1961). Prior to this amendmentthere had been some confusion among members of the bar, particularly thosein title practice, as to whether commitment to a mental institution created apresumption that the patient was incompetent, and thus incapable of disposingof his property."it re Harris, 241 N.C. 179, 84 S.E.2d 808 (1954).18257 N.C. at 596, 126 S.E.2d at 491."This is a departure from In re Harris, 241 N.C. 179, 84 S.E.2d 808(1954). The court's reasoning seems to be that the writ of habeas corpuscan only test the legality of the petitioner's detention assuming he may be"insane. Therefore a finding that petitioner is in fact insane is beyond the,scope of the writ and may be made only by a jury.20 257 N.C. at 597, 126 S.E.2d at 492.282 NORTH CAROLINA LAW REVIEW [Vol.41the appointment of a guardian under G.S. § 35-3, followed by apetition by the patient under G.S. § 35-4 asserting his competency,thus resulting in a jury trial on the question of his sanity." Analys'isreveals that this would not accomplish the ends anticipated by thecourt. Even if the jury finds the patient competent, the guardian'sremoval does not result in the patient's discharge from the hospital.A court adjudication of incompetency is not a necessary elementfor detention in a mental hospital under our statutes.2 2The strongest argument that can be made against the court'sinterpretation of the amendment, however, is that it reads into thestatute a legislative intent to import guardianship procedure intoinvoluntary commitment procedure, when in fact it was the intentof the proviso within the amendment to make it clear that G.S.§ 122-46 would have no effect on guardianship proceedings, and viceversa.23Despite the confusion of the principal case, it serves to point uptwo problems worthy of mention. One is the feasibility of a jurytrial in hospitalization procedures, the other the relationship betweenhospitalization and guardianship or incompetency proceedings.24The majority of jurisdictions have dispensed with jury trials inhospitalization cases since they are not necessary for due process.2" It is difficult to ascertain exactly what the court envisaged. The ap-pointment of a guardian apparently is to enable the patient to invoke theprocedures under G.S. § 35-4 for restoration to competency by jury trial.Even so, restoration under G.S. § 35-4 does not affect the patient's statusin the hospital.22N.C. GEN. STAT. § 122-46.1 (Supp. 1961).23 "I should like to state simply that the purpose of the amendment wasto clarify the law in the following particulars, to-wit: . . . (2) To make itclear that G.S. 12246 would have no effect on guardianship proceedings, andvice versa .... Again, I should like to state that the question of trial byjury, the appointment of a guardian and the purpose for such appointmentwas not contemplated under G.S. 122-46 by the amendment. It was the solespecific purpose and intent of the proviso within the amendment to providethat the procedure for the restoration to sanity for those whose cases comewithin the classifications embraced in G.S. 35-2 or 35-3 would be as providedby G.S. 35-4 and 35-4.1." Letter from Clyde A. Shreve to George C.Cochran, August 3, 1962. Mr. Shreve was co-introducer of the amendment." See generally Curran, Hospitalization of the Mentally Ill, 31 N.C.L. Rnv.274 (1953) ; GUTTMACHER & WEIHI0FEN, PSYCHIATRY AND THE LAW (1952) ;LINDMAN AND MCINTYRE, THE MENTALLY DISABLED AND THE LAW (1961);Ross, Commitment of the Mentally Ill: Problems of Law and Policy, 57 MICn.L. REv. 945 (1959); Slovenko & Super, The Mentally Disabled, the Law,and the Report of the American Bar Foundation, 47 VA. L. REv. 1366 (1961).3 E.g., Clough v. Clough, 10 Colo. App. 433, 51 Pac. 513 (1897) ; Peoplev. Niesman, 356 Ill. 322, 190 N.E. 668 (1934) ; In re Brewer, 224 Iowa 773,276 N.W. 766 (1937) ; Ex parte Higgins v. Hoctor, 332 Mo. 1022, 62 S.W.2dNOTES AND COMMENTSContemporary writers2 6 on the subject have cited Alaska and Ken-tucky as the only states that require a jury trial in every case; how-ever, recent statutory changes in these two states now require a jurytrial only if requested by the patient." Thus Alaska and Kentuckyhave now joined approximately- thirty per cent of the states whichprovide optional jury trials.28Admission procedures to a mental hospital should be as simple aspossible. As a means to this end authorities, both medical and legal,have strongly urged dispensing with jury trials.29 The detrimentaleffect a trial may have on a mentally unbalanced person is readilyapparent. If he is required to sit through a trial and listen to hisphysician, his family, and other witnesses testify against him it maymake psychiatric treatment even more difficult.3" Also, the use of alay jury to determine such a highly technical question as insanity hasbeen compared to "calling the neighbors to diagnose meningitis orscarlet fever."3  A paranoiac, for example, can be lucid and con-vincing one instant and completely deranged the next. 2  Thementally ill person is much more likely to fool a jury than an expert,while the truly sane person should have no greater difficulty con-vincing a judge and expert physician of his sanity than he woulda jury.The relationship between hospitalization and incompetency differs410 (1933); It re Boyett, 136 N.C. 415, 48 S.E. 789 (1904); Ex parteDagley, 35 Okla. 180, 128 Pac. 699 (1912). See Wagner Elec. Mfg. Co. v.Lyndon, 262 U.S. 226 (1923); Montana Co. v. St. Louis Min. & Mill. Co.,152 U.S. 160 (1894). Cf. Maxwell v. Dow, 176 U.S. 581 (1900), Strauderv. West Virginia, 100 U.S. 303 (1880).2' See Ross, supra note 24, at 970.m ALASKA COm. LAWS ANN. § 51-4-4 (1949) required a jury trial incommitment proceedings. This was repealed by an Act of Congress, July 28,1956. The proclamation issued by the Acting Governor of Alaska on June19, 1957, made this effective July 1, 1957. The new law requires a jurytrial only upon written request at least two days prior to the hearing.ALASKA Com. LAWS ANN. § 51-4-20h(f) (Supp. 1958). Ky. REv. STAT.§ 202.080 (1952) required a jury trial in every case. This section was re-pealed in 1960. Ky. Laws 1960, ch. 67, § 35. Ky. REv. STAT. § 202.140(1962) now provides that a jury trial is still required in all instances if thepetition requests the person be adjudged incompetent.8 For a table showing the statutory provisions as to jury trials in theother states, see LINDMAN & MCINTYRE, op. cit. supra note 24, at 58-62.' See GUTTMACHER & WEIHOFEN, op. cit. supra note 24, at 300; LIND-MAN & MCINTYRE, op. cit. supra note 24, at 27, 41; Ross, suepra note 24, at970.See generally Ross, supra note 24.81 STERN, MENTAL ILLNESS: A GUIDE FOR THE FAMILY 37 (1952).8 See Ross, supra note 24, at 970.1963]NORTH CAROLINA LAW REVIEWgreatly.among the states.33 There is considerable controversy overwhether a person in need of confinement in a mental hospital is neces-sarily incapable of managing his own affairs.,4 Incompetency maybd the result of independent judicial action, as it is in North Carolina,6r it may be one of the issues decided at a hospitalization proceeding. 5The appointment of a guardian, however, is a consequence of anadjudication of incompetency in North Carolina.8" The legislative,trend appears to be toward complete separation of hospitalizationand incompetency." The Draft Act" prepared by the National Insti-tute of Mental Health states that an order of hospitalization decidesno more than the need for hospitalization. Several states haveadopted modified versions of this act.39The separation of the two procedures is based upon the presump-tion that a person in need of hospitalization may still be quite capableof handling certain of his affairs, just as an incompetent may not need.hospitalization. In support of this view, it has been espoused that"from a medical viewpoint, there is no necessary relationship be-tween commitability and competency."4  Mental disabilities vary-to such a degree that any connection between hospitalization and in-competency seems unjustified.FRANK W. BuLLocK, JR., See Ross, supra note 24, at 980-95; LINDMAN & MCINTYRE, op. cit.supra note 24, at 220, 235-8. Hospitalization and incompetency are twodistinct legal concepts fulfilling different purposes. Although both result ina loss of rights, hospitalization affects the person's freedom to be at large•while incompetency results in a loss of civil rights and gives the incompetentthe legal status of a minor.8 See Ross, supra note 24, at 980-95; LINDMAN & MCINTYRE, op. Cit.sitpra note 24, at 220, 235-8.'0 Ibid."N.C. GEN. STAT. §§ 35-2, -3 (Supp. 1961). In some of the states'which merge hospitalization and incompetency a guardian is not always ap-pointed. Thus the incompetent is in the position of being unable to managehis own affairs and yet has no one to do so for him. See LINDMAN & Mc-INTYRE, op. cit. supra note 24, at 220, 235-8.IT See LINDMAN & MCINTYRE, op. cit. supra note 24, at 221.11 NATIONAL INSTITUTE OF MENTAL HEALTH, FEDERAL SECURITY AGENCY,A DRAFT ACT GOVERNING HOSPITALIZATION OF THE MENTALLY ILL, SCOPEoF THE D rAr Acr 2, PUBLIC HEALTH SERVICE PUB. No. 51, 1952. For a'brief summary of the act by one of its authors, see Felix, Hospitalization ofthe MentaUy Ill, 107 Am[. J. PSYCHIATRY 712 (1951). See also Ross, supranote 24; Slovenko & Super, supra note 24."0 See LINDMAN & MCINTYRE, op. ci. supra note 24, at 221; Ross, supranote 24, at 949 n. 19, 991.' GUTTMACHER & WEIHOFEN, op. cit. supra note 24, at 339.[Vol. 41

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Insane Persons -- Guardianship -- Restoration to Sanity After In re Wilson

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