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
37-3-163. Recognition of patient's physical integrity; rights to refuse medication; obtaining consent to treatment and surgery; emergency surgery; immunity of hospital or physician; direction of notice of actions taken under Code section.
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It shall be the policy of this state to recognize the personal physical integrity of all patients.
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It shall be the policy of this state to protect, within reason, the right of every individual to refuse medication except in cases where a physician determines that refusal would be unsafe to the patient or others. If the patient continues to refuse medication after such initial emergency treatment, a concurring opinion from a second physician must be obtained before medication can be continued without the patient's consent. Further, in connection with any hearing under this chapter, the patient has the right to appear and testify as free from any side effects or adverse effects of the medication as is reasonably possible.
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Any patient objecting to the treatment being administered to him shall have a right to request a protective order pursuant to Code Section 37-3-148.
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Except as provided in subsections (b) and (e) of this Code section, consent to medical treatment and surgery shall be obtained and regulated by Chapter 9 of Title 31.
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In cases of grave emergency where the medical staff of the facility in which a mentally ill individual has been accepted for treatment determines that immediate surgical or other intervention is necessary to prevent serious physical consequences or death and where delay in obtaining consent would create a grave danger to the physical health of such person, as determined by at least two physicians, then essential surgery or other intervention may be administered without the consent of the person, the spouse, next of kin, attorney, guardian, or any other person. In such cases, a record of the determination of the physicians shall be entered into the medical records of the patient and this will be proper consent for such surgery or other intervention. Such consent will be valid notwithstanding the type of admission of the patient and it shall also be valid whether or not the patient has been adjudged incompetent. This Code section is intended to apply to those individuals who, as a result of their advanced age, impaired thinking, or other disability, cannot reasonably understand the consequences of withholding consent to surgery or other intervention as contemplated by this Code section. Any hospital or any physician, agent, employee, or official who obtains consent or relies on such consent, as authorized by this Code section, and who acts in good faith and within the provisions of this chapter shall be immune from civil or criminal liability for his or her actions in connection with the obtaining of or the relying upon such consent; provided, however, that nothing in this Code section shall be construed to relieve any hospital or any physician, agent, employee, or official from liability for failing to meet the applicable standard of care in the provision of treatment to a patient. Actual notice of any action taken pursuant to this Code section shall be given to the patient and the spouse, next of kin, attorney, guardian, or representative of the patient as soon as practicably possible.
(Code 1933, § 88-508.11, enacted by Ga. L. 1977, p. 889, § 1; Code 1933, § 88-502.6, enacted by Ga. L. 1978, p. 1789, § 1; Ga. L. 1995, p. 1302, § 13; Ga. L. 2011, p. 346, § 3/HB 343.)
The 2011 amendment,
effective July 1, 2011, in the fifth sentence of subsection (e), inserted "hospital or any" near the beginning, inserted "or her" near the middle, and added the proviso at the end.
Cross references.
- Rights of mentally ill persons regarding consent to surgical or medical treatment generally,
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31-9-4.
JUDICIAL DECISIONS
Involuntary administration of drugs by state does not violate due process.
- State's policy and procedure for the involuntary administration of antipsychotic drugs to patients at the state mental hospital does not violate substantive or procedural due process. Hightower by Dehler v. Olmstead, 959 F. Supp. 1549 (N.D. Ga. 1996).
No legal authority to confine voluntary patient.
- When the patient, who was voluntarily confined, killed and wounded another, the trial court erred by denying the physicians' motions for summary judgment when, at the relevant time, the patient was an out-patient. The physicians had no control of the patient in the sense that the physician could claim legal authority to confine or restrain the patient against the patient's will unless the patient met the criteria for involuntary commitment. Additionally, there was no evidence from which one could conclude that the physicians knew or reasonably should have known that the patient was likely to cause bodily harm to oneself or to the victims. Keppler v. Brunson, 205 Ga. App. 32, 421 S.E.2d 306 (1992).
Motion to involuntarily medicate defendant improperly granted.
- Trial court erred in granting the state's motion to involuntarily medicate the defendant in an attempt to make the defendant competent to stand trial because the defendant argued that the defendant had a statutory right to avoid involuntary medication; and, under the four-part Sell test (Sell v. United States, 539 U.S. 166, 123 S. Ct. 2174, 156 L. E. 2d 197 (2003)), the state failed to demonstrate that involuntarily medicating the defendant would significantly further important government interests and that the administration of the medication was medically appropriate for the defendant as the trial court failed to specify the anti-psychotic medication or the dosages that could be forcibly administered to the defendant. Henderson v. State, 344 Ga. App. 89, 808 S.E.2d 752 (2017).
RESEARCH REFERENCES
ALR.
- Nonconsensual treatment of involuntarily committed mentally ill persons with neuroleptic or antipsychotic drugs as violative of state constitutional guaranty, 74 A.L.R.4th 1099.
Propriety of surgically invading incompetent or minor for benefit of third party, 4 A.L.R.5th 1000.
