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

37-3-150. Right to appeal orders of probate court, juvenile court, or hearing examiner; payment of costs of appeal; right to subsequent appeal; right to legal counsel on appeal.

The patient, the patient's representatives, or the patient's attorney may appeal any order of the probate court or hearing officer rendered in a proceeding under this chapter to the superior court of the county in which the proceeding was held, except as otherwise provided in Article 6 of Chapter 9 of Title 15, and may appeal any order of the juvenile court rendered in a proceeding under this chapter to the Court of Appeals or the Supreme Court. The appeal to the superior court shall be made in the same manner as appeals from the probate court to the superior court, except that the appeal shall be heard before the court sitting without a jury as soon as practicable but not later than 30 days following the date on which the appeal is filed with the clerk of the superior court. The appeal from the order of the juvenile court to the Court of Appeals or the Supreme Court shall be as provided by law but shall be heard as expeditiously as possible. The patient must pay all costs upon filing any appeal authorized under this Code section or must make an affidavit that he or she is unable to pay costs. The patient shall retain all rights of review of any order of the superior court, the Court of Appeals, or the Supreme Court, as provided by law. The patient shall have a right to counsel or, if unable to afford counsel, shall have counsel appointed for the patient by the court. The appeal rights provided to the patient, the patient's representatives, or the patient's attorney in this Code section are in addition to any other appeal rights which the parties may have, and the provision of the right for the patient, the patient's representatives, or the patient's attorney to appeal does not deny the right to the Department of Behavioral Health and Developmental Disabilities to appeal under the general appeal provisions of Code Sections 5-3-2 and 5-3-3.

(Code 1933, § 88-502.16, enacted by Ga. L. 1969, p. 505, § 1; Code 1933, § 88-502.19, enacted by Ga. L. 1978, p. 1789, § 1; Ga. L. 1986, p. 982, § 11; Ga. L. 1994, p. 1072, § 1; Ga. L. 1995, p. 10, § 37; Ga. L. 2009, p. 453, § 3-2/HB 228; Ga. L. 2016, p. 883, §§ 3-13, 3-14/HB 927.)

The 2016 amendment, effective January 1, 2017, substituted "Court of Appeals or the Supreme Court" for "Court of Appeals and the Supreme Court" twice and substituted "Court of Appeals, or the Supreme Court" for "Court of Appeals, and the Supreme Court" in the fifth sentence. See Editor's notes for applicability.

Editor's notes.

- Ga. L. 1986, p. 982, § 25, not codified by the General Assembly, provided that that Act would apply to all cases filed on or after July 1, 1986.

Ga. L. 2016, p. 883, § 1-1/HB 927, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Appellate Jurisdiction Reform Act of 2016.'"

Ga. L. 2016, p. 883, § 6-1/HB 927, not codified by the General Assembly, provides that: "Part III of this Act shall become effective on January 1, 2017, and shall apply to cases in which a notice of appeal or application to appeal is filed on or after such date."

Law reviews.

- For article on the 2016 amendment of this Code section, see 33 Georgia St. U. L. Rev. 205 (2016).

JUDICIAL DECISIONS

Judicial nature of judgments.

- Judgments by a court of ordinary (now probate court) ruling on mental competency or incompetency are judicial in nature and appealable to the superior court by the losing party. Tingle v. Harvill, 125 Ga. App. 312, 187 S.E.2d 536 (1972).

Procedure for determining competency seeks to protect the ward as well as the guardian and the members of the family who are required to receive notification by granting their full day in court including all appeals permitted in judicial proceedings. Tingle v. Harvill, 125 Ga. App. 312, 187 S.E.2d 536 (1972).

Guardian has the right of appeal to the superior court from an order of the court of ordinary (now probate court) restoring the ward to competency. Tingle v. Harvill, 125 Ga. App. 312, 187 S.E.2d 536 (1972).

Time for filing an appeal from the order of a court of ordinary (now probate court) in the application for the appointment of a guardian is governed by statute. Kiker v. Kiker, 126 Ga. App. 39, 189 S.E.2d 880 (1972).

Mental health facility has no right to appeal adverse commitment decision or to detain patient.

- Mental health facility did not have the right to appeal from an adverse involuntary commitment decision and the facility did not have statutory authority, nor would it have been constitutional, to detain the patient pending appeal of a probate court order of discharge. Georgia Mental Health Inst. v. Brady, 263 Ga. 591, 436 S.E.2d 219 (1993).

OPINIONS OF THE ATTORNEY GENERAL

When appointment of guardian ad litem required Assuming compliance with the requisite search for representatives, the probate court need appoint a guardian ad litem only when there is no one in the specified categories available to represent the patient's interests. 1977 Op. Att'y Gen. No. U77-65.

Probate judge may not appoint physicians who are not residents of the judge's county to a panel whose purpose is to determine the mental competency of a person, unless it is made to appear that there are not two physicians who do reside in the county. 1975 Op. Att'y Gen. No. U75-52.

Georgia Law 1986, p. 982, which affects procedures in probate courts in certain counties, does not affect mental health cases heard by probate courts under O.C.G.A. §§ 37-3-150,37-7-150 and37-4-110. 1986 Op. Att'y Gen. No. U86-18.

RESEARCH REFERENCES

ALR.

- Effect of death of appellant upon appeal from judgment of mental incompetence against him, 54 A.L.R.2d 1161.

PART 2 R IGHTS AND PRIVILEGES AS TO MANNER OF CARE AND TREATMENT AND AS TO MAINTENANCE AND RELEASE OF CLINICAL RECORDS

Cross references.

- Medical reports in narrative form, § 24-8-826.

When medical information may be released, § 24-12-1 et seq.

Rights of mentally ill persons regarding consent to surgical or medical treatment generally, § 31-9-4.

Cases Citing O.C.G.A. § 37-3-150

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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

...stayed the probate court's order of immediate discharge and permitted GMHI to hold Brady until GMHI exhausted the appellate process. Brady then filed this petition for writ of habeas corpus and injunctive relief in superior court. She relied on OCGA § 37-3-150 to contend that GMHI did not have the right to appeal....

...3; it does not specify that a mental health facility has a right to appeal, but neither does it specify that the facility does not have such a right. [1] Brady contended that the exclusion of mental health facilities from the persons entitled to appeal under § 37-3-150 precludes those facilities from appealing....

...2. We first address the issue of the right to appeal and begin with the proposition that a specific statute governs over a more general statute where they are in conflict. First Nat. Bank v. Sinkler, 170 Ga. App. 668, 670 (1) (317 SE2d 897) (1984). Section 37-3-150 is the more specific statute, as it focuses on appeals of probate court rulings under Chapter 3 of Title 37....

...appeal statutes, especially considering that for so long before 1969 the General Assembly had specified that applicants had the right to appeal. These considerations lead inescapably to the conclusion that the legislature has expressed its will that § 37-3-150 exclusively governs the right to appeal commitment decisions of a probate court and that only patients have the right to appeal such decisions....

...t in unreasonable consequences and must square with common sense and sound reasoning. State v. Mulkey, 252 Ga. 201, 204 (312 SE2d 601) (1984). We find that an unreasonable result will obtain if *594 GMHI has the right to appeal under § 5-3-2. Under § 37-3-150, a patient's appeal must be heard in superior court within 30 days, and, to facilitate this expedited review, the patient is denied the valuable right to a jury trial....

...In contrast, in a facility's appeal under § 5-3-2, there would be no requirement for expedited review, subjecting the patient to the strain, stigma, and expense of the mental health proceeding for an extended period of time, and the facility would be entitled to a valuable right denied to patients under § 37-3-150 the right to a trial by jury. This contrasting treatment on appeal is unreasonable and illogical. (c) For the foregoing reasons, we conclude that the General Assembly must have intended § 37-3-150 to exclusively control the parties who have a right to appeal from a commitment decision and for mental health facilities not to have that right....

...All the Justices concur, *596 except Hunt, P. J., Hunstein and Carley, JJ., who dissent. Case No. S93A0977. Judgment reversed. All the Justices concur. HUNT, Presiding Justice, dissenting. The majority begins its analysis of this case by concluding that OCGA § 37-3-150 conflicts with OCGA §§ 5-3-2 and 5-3-3, but such a conclusion is unnecessary....

...Accordingly, I respectfully dissent to the majority's holding that the Georgia Mental Health Institute does not have the right to appeal under OCGA §§ 5-3-2 and 5-3-3. I am authorized to state that Justice Hunstein and Justice Carley join in this dissent. [1] In relevant part, § 37-3-150 provides that [t]he patient, his representatives, or his attorney may appeal any order of the probate court ......

...the mentally ill, see Ga. L. 1964, pp. 499, 530-546, and which repealed §§ 49-604 and 49-606 of the 1933 Code and enacted new sections 49-604 and 49-606 to harmonize them with the new Title 88-5, Ga. L. 1964 at 658-661. NOTES [1] In relevant part, § 37-3-150 provides that [t]he patient, his representatives, or his attorney may appeal any order of the probate court ......

...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. Those types of proceedings would not be "proceeding[s] under [Chapter 3 of Title 37]," § 37-3-150, as, given the historical context of the appeal statute, we construe "proceedings under [Chapter 3 of Title 37]" to refer to the probate court proceedings detailed in Chapter 3 of Title 37 that led to the court's decision on the involuntary hospitalization and treatment of a patient....