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2018 Georgia Code 37-3-148 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 37-3-148 Case Law from Google Scholar Amendments to OCGA 37-3-148

TITLE 37 MENTAL HEALTH

Section 3. Examination, Treatment, etc., for Mental Illness, 37-3-1 through 37-3-168.

ARTICLE 6 RIGHTS AND PRIVILEGES OF PATIENTS, THEIR REPRESENTATIVES, ETC., GENERALLY

37-3-148. Right of patients or representatives to petition for writ of habeas corpus and for judicial protection of rights and privileges granted by this chapter.

  1. At any time and without notice, a person detained by a facility or a relative or friend on behalf of such person may petition, as provided by law, for a writ of habeas corpus to question the cause and legality of detention and to request any court of competent jurisdiction on its own initiative to issue a writ for release, provided that, in the case of any such petition for the release of a person detained in a facility pursuant to a court order under Code Section 17-7-130 or 17-7-131, a copy of the petition along with proper certificate of service shall also be served upon the presiding judge of the court ordering such detention and the prosecuting attorney for such court, which service may be made by certified mail or statutory overnight delivery, return receipt requested.
  2. A patient or his representatives may file a petition in the appropriate court alleging that the patient is being unjustly denied a right or privilege granted by this chapter or that a procedure authorized by this chapter is being abused. Upon the filing of such a petition, the court shall have the authority to conduct a judicial inquiry and to issue appropriate orders to correct any abuse under this chapter.

(Ga. L. 1958, p. 697, § 18; Ga. L. 1960, p. 837, § 17; Code 1933, § 88-517, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-502.11, enacted by Ga. L. 1969, p. 505, § 1; Code 1933, § 88-502.14, enacted by Ga. L. 1978, p. 1789, § 1; Ga. L. 1980, p. 678, § 2; Ga. L. 1984, p. 22, § 37; Ga. L. 2000, p. 1589, § 3.)

Editor's notes.

- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

Cross references.

- Habeas corpus generally, T. 9, C. 14.

Penalty for malicious confinement of sane person in asylum, § 16-5-43.

JUDICIAL DECISIONS

Inmate of the Milledgeville (now Central) State Hospital may file a petition to try the question of sanity. In fact no formal petition for a trial is required. If in fact an affidavit by a friend or relative is a prerequisite to such a trial, to the effect that the alleged cause of commitment did not and does not exist, and that, if it did, it had ceased to exist, such an affidavit made by counsel for the petitioning inmate is sufficient. Strickland v. Peacock, 88 Ga. App. 384, 77 S.E.2d 20 (1953) (decided under former Code 1933, §§ 35-236, 35-237).

Legislature clearly intended the committing court to be a continuing monitor in the case of the not guilty by reason of insanity defendant; the specific reference in subsection (a) of O.C.G.A. § 37-3-148 of notice to the committing court acknowledges and accounts for this as well as the common circumstance of a writ of habeas corpus being brought before a court other than the one ordering the detention; although it does not involve the writ of habeas corpus, to interpret subsection (b) of § 37-3-148 as allowing any forum other than the committing court as the "appropriate" one in the situation of a not guilty by reason of insanity committee would be to allow the adjudication of the petition without even notice to the very forum responsible for the ultimate determinations of detention and release. Ledbetter v. Cannon, 192 Ga. App. 392, 384 S.E.2d 875 (1989).

Committing court has exclusive jurisdiction to hear petition.

- Committing court for a not guilty by reason of insanity defendant has exclusive jurisdiction to hear petition for judicial protection of rights when the defendant seeks a modification of treatment involving off-campus privileges. Ledbetter v. Cannon, 192 Ga. App. 392, 384 S.E.2d 875 (1989).

Exhaustion of remedies not required before seeking habeas relief.

- Because an involuntary detainee is specifically granted the right to seek habeas relief "at any time" by § 37-3-148, exhaustion of remedies is not required before a person involuntarily committed to a mental health facility following an acquittal by reason of insanity may seek habeas relief. Hogan v. Nagel, 273 Ga. 577, 543 S.E.2d 705 (2001).

Involuntary detainee is not required to exhaust remedies available under the criminal procedure code, pursuant to O.C.G.A. § 17-7-131(f), prior to seeking habeas relief pursuant to O.C.G.A. § 37-3-148(a). Hogan v. Nagel, 276 Ga. 197, 576 S.E.2d 873 (2003).

Habeas relief properly sought for involuntarily detained patient.

- Trial court did not exceed the court's authority by granting a writ of habeas corpus, pursuant to O.C.G.A. § 9-14-19, to an involuntary detainee who had been committed to a state hospital upon a finding of not guilty by reason of insanity in the deaths of the detainee's grandparents and ordering that the state hospital officials prepare a plan for supervision and outpatient services upon the detainee's release; the detainee was entitled to seek relief by that route, pursuant to O.C.G.A.37-3-148(a), or by seeking a release petition pursuant to O.C.G.A. § 17-7-131(f). Hogan v. Nagel, 276 Ga. 197, 576 S.E.2d 873 (2003).

Petition for unconditional release denied.

- Patient, who was involuntarily committed to a hospital after the patient was found not guilty by reason of insanity of several crimes, was not entitled to an unconditional release from the hospital because the patient, who had to take medication, had engaged in dangerous or threatening acts towards others, the patient's personality disorders and the patient's schizo-affective disorder qualified as mental illnesses under O.C.G.A. § 37-1-1(12), and the patient's schizo-affective disorder also would have made the defendant an imminent threat of harm to others if the defendant was unconditionally released. Dupree v. Schwarzkophf, Ga. , S.E.2d (June 27, 2011).

OPINIONS OF THE ATTORNEY GENERAL

Alcoholics have the same rights as those afforded the mentally ill. 1973 Op. Att'y Gen. No. U73-109.

Reasonable interpretation can be made that the civil procedure code, is inapplicable to former Code 1933, § 88-517 (see O.C.G.A. § 37-3-148). The civil procedure statutes, (see O.C.G.A. Art. 2, Ch. 14, T. 9), concerns itself with the exclusive procedures for suing out a writ by one restrained by virtue of a sentence imposed by a state court of record; the validity of this conclusion turns on the interpretation of the word "sentence." 1967 Op. Att'y Gen. No. 67-320.

RESEARCH REFERENCES

ALR.

- Showing as to mental condition which will entitle one restrained on ground of insanity to release, 19 A.L.R. 715.

Habeas corpus on ground of restoration to sanity of one confined as an incompetent other than in connection with crime, 21 A.L.R.2d 1004.

Constitutional right to jury trial in proceeding for adjudication of incompetency or insanity or for restoration, 33 A.L.R.2d 1145.

Right, without judicial proceeding, to arrest and detain one who is, or is suspected of being, mentally deranged, 92 A.L.R.2d 570.

Validity of statutory provision for commitment to mental institution of one acquitted of crime on ground of insanity without formal determination of mental condition at time of acquittal, 50 A.L.R.3d 144.

Cases Citing O.C.G.A. § 37-3-148

Total Results: 3  |  Sort by: Relevance  |  Newest First

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Georgia Mental Health Inst. v. Brady, 436 S.E.2d 219 (Ga. 1993).

Cited 34 times | Published | Supreme Court of Georgia | Nov 8, 1993 | 263 Ga. 591, 93 Fulton County D. Rep. 3957

...bring, for instance, for declaratory judgment, for a writ of mandamus, for a writ of habeas corpus, or for injunctive relief, seeking a determination concerning his or her rights or privileges or concerning any alleged abuses by a facility. See OCGA § 37-3-148, which specifies that patients have the right to bring such actions....
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Hogan v. Nagel, 543 S.E.2d 705 (Ga. 2001).

Cited 4 times | Published | Supreme Court of Georgia | Mar 2, 2001 | 273 Ga. 577

...[1] Following the conclusion of those proceedings and federal habeas proceedings, [2] he instituted this habeas action in 1999. The appellants moved to dismiss the petition, contending that Nagel was first required to file another petition under OCGA § 17-7-131(f). OCGA § 37-3-148(a) provides that the writ of habeas corpus is always available to challenge an illegal detention in a mental hospital; OCGA § 17-7-131(f) provides that an insanity acquittee may only be discharged by the committing court under the procedures set forth in the code section and sharply limits the availability of these procedures. The reconciliation of these two provisions "is one of legislative intent, to be determined by construction of the particular statutes." [3] OCGA § 37-3-148(a) states that a person detained in a mental health facility may "[a]t any time and without notice ......
...The failure of the legislature to craft an exception to the time requirement when it created an express exception to the notice requirement is strong evidence that it did not intend any exception. [4] The dissent asserts that the phrase "as provided by law" in OCGA § 37-3-148(a) refers to the criminal procedure code....
...a writ of habeas corpus. [5] This interpretation is more logically sound than the dissent's assertion that the legislature relied upon the phrase "as provided by law" to craft an exhaustion of remedies requirement. Additionally, the language in OCGA § 37-3-148(a) requiring notice to the committing court was added in 1980 when OCGA § 17-7-131 provided, as it does today, that an insanity acquittee could be discharged only by the committing court....
...the court implicitly assumed that the state would not require exhaustion of remedies. Richardson v. Hall [10] fails to support the dissent's position. In that case, there was no specific statute granting the availability of habeas relief. Here, OCGA § 37-3-148(a) provides that habeas relief is available "at any time" to detainees such as Nagel....
...Among those subject to involuntary detention in a mental health facility are non-criminal patients who are committed pursuant to OCGA § 37-1-1 et seq., the Georgia Mental Health Code, as well as criminal defendants, such as Nagel, who are found not guilty by reason of insanity. OCGA § 37-3-148(a) provides, in part, that [a]t any time and without notice, a person detained by a facility ......
..."Refusal to accord habeas corpus relief to confinees who are able to prove at a habeas corpus hearing that they no longer meet the standards for commitment could not be defended under any principles of due process." Benham v. Ledbetter, 785 F.2d 1480, 1493(IV)(D) (11th Cir.1986). Thus, OCGA § 37-3-148(a) is properly construed as a general statute, the substantive provisions of which apply equally to all involuntary patients without regard to whether the underlying *708 basis for their commitment is civil or criminal....
...e a copy of his habeas petition upon the presiding judge of the Superior Court of Troup County "and the prosecuting attorney for such court, which service may be made by certified mail or statutory overnight delivery, return receipt requested." OCGA § 37-3-148(a). The general availability of habeas relief under OCGA § 37-3-148(a) does not necessarily mean that an insanity acquittee does not have to comply with OCGA § 17-7-131(f). As previously noted, OCGA § 37-3-148(a) specifies that an involuntary patient has the right to petition for habeas, "as provided by law...." The majority simply chooses to ignore this phrase, apparently misconstruing it as a limited reference to the law of habeas corpus and,...
...he committing court in accordance with the procedures specified in this subsection...." If release is denied, the detainee cannot file "a further release application" for 12 months after the hearing on the "last preceding application." Although OCGA § 37-3-148(a) applies to all involuntary patients, OCGA § 17-7-131(f) is applicable only to insanity acquittees....
...243 (1906) (dealing with child custody and distinguished in Richardson, supra at 607, 34 S.E.2d 888.) Thus, an insanity acquittee may not fail to pursue the available specific statutory remedy for discharge under OCGA § 17-7-131(f), and instead file a habeas corpus petition pursuant to the general provisions of OCGA § 37-3-148(a)....
...an insanity acquittee cannot obtain that relief unless the right to file an application for release in accordance with OCGA § 17-7-131(f) is not available. By requiring service on the presiding judge of the committing court and the prosecutor, OCGA § 37-3-148(a) insures that the habeas respondents, such as Appellants, can plead the availability of the specific statutory remedy as a defense in any habeas proceeding initiated by an insanity acquittee who has not applied for release initially under OCGA § 17-7-131(f)....
...Hall , apparently conceding by its failure to do so that that case is controlling authority which cannot be successfully distinguished. Nagel urges that it is distinguishable because a specific statute recognizes the availability to him of habeas relief. However, OCGA § 37-3-148(a) does not specifically authorize habeas corpus relief for insanity acquitees....
...of a crime, but who was found to be insane. OCGA § 17-7-131(f) provides that an insanity acquittee "may only be discharged" by complying with its provisions. Just as the word "only" in that statute does not negate the general applicability of OCGA § 37-3-148(a), the phrase "at any time" in the latter provision does not foreclose the specific applicability of OCGA § 17-7-131(f). If the General Assembly had intended that habeas corpus replace OCGA § 17-7-131(f) as the remedy for insanity acquittees, then it would have repealed that statute. Instead, it amended OCGA § 37-3-148(a) to require service of the habeas petition on the presiding judge and prosecuting attorney....
...The sole question presented for decision was whether such an involuntary patient had additional recourse to habeas during the year in which he could not pursue that statutory remedy. In answer to that question, the Eleventh Circuit correctly concluded that the failure of OCGA § 37-3-148(a) to extend the habeas remedy expressly to detainees found not guilty by reason of insanity "does not require a conclusion that the legislature intended by silence to deny insanity acquittees the right to seek habeas ......
...-month period, alleging that his current mental condition renders the present confinement unlawful. Enforcement of the principle of exhaustion of available remedies does not deny an insanity acquittee recourse to the habeas remedy authorized by OCGA § 37-3-148(a), but it *712 does require that he comply with the mandate of OCGA § 17-7-131(f) and pursue that statutory remedy first....
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Hogan v. Nagel, 276 Ga. 197 (Ga. 2003).

Published | Supreme Court of Georgia | Feb 10, 2003 | 576 S.E.2d 873

...filed by appellee David Nagel, who has been in the custody of the Department of Human Resources since 1981, when, as a teenager, he was tried for the murders of his grandparents and found not guilty by reason of insanity. See OCGA §§ 37-3-1 (9.1); 37-3-148....
...In the first appeal of this case, we determined, in effect, that an insanity acquittee under an order of involuntary commitment has two parallel judicial means by which he might secure his release on the ground that he no longer meets the criteria for civil commitment: by a petition for writ of habeas corpus (OCGA § 37-3-148 (a)) and by petition for release under OCGA § 17-7-131 (f)....
...This issue was decided adversely to appellants in the previous appearance of this case in this Court when we held that appellee, an involuntary detainee, was not required to exhaust remedies available under the criminal procedure code (OCGA § 17-7-131 (f)) before seeking habeas relief pursuant to OCGA § 37-3-148 (a)....
...While “[t]he trial court, rather than mental health professionals, has the responsibility for deciding applications for release under OCGA § 17-7-131 [(f)]” (Nagel v. State, 262 Ga. 888 (1) (427 SE2d 490) (1993)), a detainee seeking release by means of a petition for writ of habeas corpus pursuant to OCGA § 37-3-148 (a) need only establish by a preponderance of admissible evidence the illegality of his continued detention in a mental hospital, i.e., that he no longer meets the standards for commitment....