The opinion
Mackenzie, J.
(dissenting in part). I respectfully dissent from that portion of the majority opinion holding that the trial judge erred by granting summary judgment as to the individual defendant peace officers and deputy sheriffs.
Section 427b of the Mental Health Code, MCL 330.1427b; MSA 14.800(427b), provides that peace officers acting in compliance with the code are acting in the course of their official duty and are not liable for actions taken unless they engage in behavior involving gross negligence or wilful and wanton misconduct. Section 427(1) of the code provides in pertinent part:
If a peace officer observes an individual conducting himself or herself in a manner which causes the peace officer to reasonably believe that the individual is a person requiring treatment . . . the peace officer may take the individual into protective custody and transport the individual to a hospital for examination ... or may notify the community mental health emergency service unit for the purpose of requesting mental health intervention services .... [MCL 330.1427(1); MSA 14.800(427)(1). Emphasis added.]
This language clearly makes the decision whether or not to take a person into protective custody or to notify the community mental heath emergency service unit discretionary with the peace officer. Compare MCL 330.1426; MSA 14.800(426). It does not create an affirmative duty on the part of police officers to take into custody persons requiring treatment. See Gilchrist v City of Livonia, 599 F Supp 260 (ED Mich, 1984).
Here, plaintiffs’ complaint indicates that defendants decided not to place Edward Hoffman in *11 protective custody. It does not allege that this decision constituted gross negligence or wilful and wanton misconduct. In my opinion, the officers’ decision to release Hoffman to the custody of his family was within the decision granted them under § 427 of the Mental Health Code and, thus, consistent with § 427b of the code, they are not civilly liable for that decision.
Accordingly, I would affirm the trial court’s grant of summary judgment in favor of defendants Clolinger, Adams, Warden and Spaniola.