New Castle County - Civil Division
Renata J. Henry, Director
Delaware Health and Social Services
1901 N. DuPont Highway
New Castle, Delaware 19720
Re: Reports to the State Bureau of Identification
By letter of January 15, 2003, you asked whether the Delaware Psychiatric Center ("DPC")(1) is required or permitted to report to the State Bureau of Identification ("SBI") the identity of persons detained for 24 hours or less pursuant to 16 Del. C. §5122. For the reasons stated below, we conclude that the identity of such persons may not be reported to the SBI unless, during the detention authorized by §5122, a commitment proceeding pursuant to 16 Del. C. Chapter 50 is initiated.
The SBI was created in 1939 to maintain data relating to criminal records. 42 Del. Laws c. 181. The law, as originally enacted and later recodified in 1953, required a person in charge of ". . . insane institutions to which there are committed persons . . . declared to be criminally insane" to report to SBI data identifying "all persons so committed . . . ." 11 Del. C. §8505 (1953).
In 1981, Chapter 85 of Title 11 was revised and reenacted. At that time, §8509 required a person in charge of "an institution to which there are committed individuals convicted of crime, or persons declared to be not guilty by reason of mental illness or declared incompetent to stand trial for criminal offenses" to report to SBI identifying data "of all individuals so committed . . . ."
In 1994, 11 Del. C. §8509 was amended to include civilly committed patients of mental institutions:
Every person in responsible charge of an institution to which there are committed individuals convicted of crime, persons declared to be not guilty by reason of mental illness, declared incompetent to stand trial for criminal offenses or involuntarily committed for mental illness pursuant to Title 16, Chapter 50, shall transmit to the Bureau [identifying data] of all adults so committed and shall report any subsequent change in release status. . . .
11 Del. C. §8509 (emphasis added).
Since the authority for emergency detentions is found in Chapter 51 rather than Chapter 50 of Title 16, such detentions, although involuntary, do not strictly come within the requirements of §8509. Moreover, the statutory history supports the position that §8509 was not intended to require reporting of the identity of individuals subject only to an emergency detention authorized by §5122.
Historically, all laws relating to voluntary and involuntary admission to the Delaware State Hospital, now the DPC, were found in Chapter 51 of Title 16. However, in1975, the legislature repealed those sections of Chapter 51 which provided for involuntary admission and created Chapter 50 to "establish a procedure for compulsory confinement which satisfied the requirements of due process." Delaware State Hospital v. Morris, 541 A.2d 139, 141 (1988). 60 Del. Laws c. 95. Significantly, the procedure for emergency apprehension, detention and treatment of one believed to be dangerously mentally ill was not included in Chapter 50 but remained in §5122 of Chapter 51. In 1992, §5122 was amended to reduce the time limit for an emergency detention from 72 to 24 hours. 68 Del. Laws c. 308.
Thus, when 11 Del. C. §8509 was amended in 1994 to require reporting the identity of individuals involuntarily committed under Chapter 50, the emergency detention provisions of §5122 were well established. Had detention under §5122 been intended to be included, the legislature would not have limited the clear wording of the act to Chapter 50 commitments. Giuricich v. Emtrol Corp., 449 A.2d 232, 239 (Del. 1982) ("A Legislature is presumed to be aware of existing law").
Therefore, the DPC is not required to report to SBI the identity of persons detained for 24 hours or less pursuant to 16 Del. C. §5122.
Moreover, the DPC is not permitted voluntarily to report the identity of such persons to SBI. The Mental Health Patients' Bill of Rights, 16 Del. C. §5161, mandates confidentiality of patient information and records and prohibits their release except under specified circumstances. 16 Del. C. §5161(b)(13). The 1994 act that amended 11 Del. C. §8509 to require reporting involuntary commitments pursuant to Chapter 50 also created an exception to the prohibition on release of information for reports to SBI required by §8509(2). 69 Del. Laws c. 224. 16 Del. C. §5161(b)(13)(g) & (b)(14). There is no such exception for reporting any information concerning mental health patients to SBI not required by law to be reported. Since the identities of persons detained pursuant to §5122 are not required to be reported, they may not be reported voluntarily.
A patient initially detained pursuant to 16 Del. C. §5122 may remain hospitalized for more than 24 hours only if "admitted or committed . . . under some other provision of law." 16 Del. C. §5122(d). One such "provision of law" is the involuntary commitment procedure set out in Chapter 50. Briefly, that procedure is initiated when a psychiatrist executes a certificate complying with §5003. The psychiatrist's certificate authorizes involuntary provisional admission (§5004), within two working days of which the DPC must file in Superior Court a verified complaint complying with §5007. Within eight working days of the filing of the complaint, the court must hold a hearing to determine whether there is probable cause for the involuntary patient's continued confinement. 16 Del. C. §5008. If so, the confinement is continued pending a further hearing, usually scheduled for six weeks after the probable cause hearing.
It is not uncommon for a patient, including a patient who first was hospitalized pursuant to §5122, to be provisionally involuntarily admitted by the authority of a psychiatrist's certificate, and shortly thereafter to be discharged or agree to a voluntary admission. In such cases, no complaint is filed or, if one has been filed, the complaint is dismissed. In either event, there is no court hearing and no court order concerning the propriety of the provisional admission. Nevertheless, such a patient should be considered to have been "involuntarily committed for mental illness pursuant to Title 16, Chapter 50" for purposes of reporting identifying information to SBI.
To reach this conclusion, it is necessary to consider the purpose of reporting the identity of those involuntarily committed to the DPC. That purpose is clear from an examination of the act which first created the requirement, titled "An Act to Amend Title 11 and Title 16 of the Delaware Code Relating to Involuntary Commitment Record Checks for Sales of Firearms." 69 Del. Laws c. 224. As discussed above, this act modified the SBI reporting statute to require reporting of those involuntarily committed pursuant to Chapter 50 and also amended the Mental Health Patients' Bill of Rights to except the required reports to SBI from the otherwise applicable obligation to keep all such information confidential. A third provision of the act amended 11 Del. C. §1448A which requires clearance from SBI prior to transfer of a firearm to preclude transfer to a person who is prohibited by state or federal law from owning or possessing a firearm. References in §1448A to the records maintained by SBI were changed from "criminal history records" to "criminal history and involuntary commitment of an adult records." Thus, it is clear that the purpose of the act was to enable SBI to identify persons prohibited by from possessing a firearm because of involuntary commitment.
Delaware law prohibits purchase, ownership, possession or control of a deadly weapon by a person "who has ever been committed for a mental disorder to any hospital, mental institution or sanitarium" except under certain circumstances. 11 Del. C. §1448. Federal law restricts possession of a firearm by a person "who has been adjudicated as a mental defective or who has been committed to a mental institution." 18 U.S.C. §922. Neither statute defines the word "committed" as used therein and we have located no cases interpreting the Delaware statute. However, we may look for guidance to cases in which the federal statute has been interpreted.
In reviewing the few cases in which state mental commitment procedures have been considered to determine whether an individual had been "committed" for purposes of the federal firearm ban, it is possible to identify some guidelines. First, it is clear that judicial action is not a necessary prerequisite to a finding that a person has been committed. U.S. v. Chamberlain, 159 F.3d 656, 661 (1st Cir. 1998), U.S. v. Vertz, 40 Fed. Appx. 69, 75 (6th Cir. 2002). Second, the prevailing view is that the terminology used in the commitment statute is not determinative. U.S. v. Waters, 23 Fed.3d 29, 34 (2d Cir. 1994), U.S. v. Chamberlain, supra., at 663, U. S. v. Vertz, supra., at 74. Cf. U.S. v. Hansel, 474 F.2d 1120 (8th Cir. 1973), U.S. v. Giardina, 861 F.2d 1334 (5th Cir. 1988). Thus, the reference in 16 Del. C. Chapter 50 to "provisional admission" prior to a judicial hearing does not preclude a finding of commitment.
Third, something more than an initial allegation of mental illness is necessary to transform an emergency admission into a commitment for purposes of a firearm ban. In U.S. v. Vertz, supra, the Sixth Circuit examined Michigan law to determine whether an involuntary admission was a commitment for purposes of the federal firearm statute when the patient had agreed to a voluntary admission after a commitment procedure had been initiated but before a judicial hearing. Much like Delaware's procedure, Michigan law provided for an emergency admission of up to 24 hours based on the petition of any adult accompanied by a certification from a physician or a licensed psychologist. Further involuntary hospitalization required that the patient be examined within the 24 hour admission by a psychiatrist who must then certify the need for continued hospitalization. Following that certification, the patient could be hospitalized pending a court hearing. Although Vertz had agreed to voluntary admission prior to a hearing, the Sixth Circuit found that the psychiatrist's certificate, executed after examination during the 24-hour involuntary admission, provided the "necessary affirmation of the validity of the involuntary admission" to render it a commitment for purposes of the firearm ban. 40 Fed. Appx., 69, 75.
It is likely that a federal court, interpreting Delaware law for purposes of the federal firearm ban, would conclude that one who has been involuntarily provisionally admitted by authority of a psychiatrist's certificate complying with 16 Del. C. §5003 has been committed. Similarly, it is likely that a Delaware court interpreting the same law for purposes of 11 Del. C. §1448 would reach the same conclusion. Since it is those persons prohibited by federal or state law from possessing firearms whose identities are intended to be reported to SBI, such a report should be made for any person concerning whom a §5003 psychiatrist's certificate has been executed, even if that person is discharged or voluntarily admitted prior to any judicial hearing.
In conclusion, it is our opinion that the DPC may not report to SBI the identities of persons detained for 24 hours or less pursuant to 16 Del. C. §5122. However, the DPC should report to SBI the identities of all persons who have been provisionally admitted on authority of a psychiatrist's certificate conforming to 16 Del. C. §5003, even if the patient is thereafter discharged or voluntary admitted prior to a judicial hearing.
Please do not hesitate to contact our office if we can be of additional assistance.
Very truly yours,
Phebe S. Young
Deputy Attorney General
Keith R. Brady
Assistant State Solicitor
cc: The Honorable M. Jane Brady, Attorney General
Philip Johnson, Opinion Coordinator
1. For purposes of this Opinion, reference to the DPC includes hospitals certified by the Secretary pursuant to 16 Del. C. §5001(2).
2. Section 5161 also was amended to require that mental hospitals report, "pursuant to 11 Del. C. §1448A", information identifying "adults who are involuntarily committed". 69 Del. Laws c. 224 §3. However, 11 Del. C. §1448A does not include any such requirement.