concurring:
I concur with the court to the extent it holds that appellant was not entitled as of right to a hearing prior to his return to Lorton Correctional Complex, and that the trial judge did not err in ordering appellant returned to Lorton. However, we are not holding that Super.Ct.Ment.H.R. 1 authorizes the court to order a hearing to examine whether appellant should remain at St. Elizabeths after being certified “restored to mental health.” Absent constitutional or statutory authority, imposition of such a *596hearing requirement is an unwarranted intrusion by the judiciary into the statutorily prescribed duties of the executive branch. See In re An Inquiry into Allegations of Misconduct Against Juveniles ... Department of Human Resources, D.C.App., 430 A.2d 1087, 1091 (1981). We are surely not holding that D.C.Code 1973, § 24-303(b) is unconstitutional in permitting retransfer to prison on a certificate that appellant was restored to mental health. Cf. Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642 (1968). Indeed, the court’s opinion implies and should express a holding that § 24-303(b) is constitutional without grafting further procedural steps on it.
Due process necessitates a hearing before a prisoner can be involuntarily transferred to a mental hospital pursuant to D.C.Code 1973, § 24-302. Dobbs v. Neverson, D.C.App., 393 A.2d 147, 153 n.12 (1978); Matthews v. Hardy, 137 U.S.App.D.C. 39, 420 F.2d 607 (1969), cert. denied, 397 U.S. 1010, 90 S.Ct. 1231, 25 L.Ed.2d 423 (1970). Transfer of persons back to prison for continued treatment of an “outpatient” nature in no way entails the same consideration and requirement of a hearing.1 In my view, the court lacked statutory authority to impose such a hearing. In addition, the judge’s order violated Super.Ct.Ment.H.R. 9(h) which states:
If a prisoner . . . consents to hospitalization, ... the court shall order the prisoner transferred to St. Elizabeth’s Hospital to receive treatment for his illness. If the prisoner recovers prior to the expiration of his [sentence], he shall be returned to the custody of the Department of Corrections and the clerk of the court shall be furnished a copy of the certification by the Superintendent of the hospital. [Emphasis added.]
Retransfer of appellant was not a matter for the court to decide. Thus, it is unnecessary to discuss the burden of proof issue.
. Language to the contrary in Matthews v. Hardy, supra at 44, 420 F.2d at 612, is dictum of the highest order.