TITLE 37 MENTAL HEALTH

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

ARTICLE 3 EXAMINATION, HOSPITALIZATION, AND TREATMENT OF INVOLUNTARY PATIENTS

37-3-81. Procedure for detention of patient beyond evaluation period; final disposition.

The patient may be detained at a facility beyond the evaluation period unless voluntary hospitalization is sought under subparagraph (a)(1)(A) of Code Section 37-3-64 only upon the recommendation of the chief medical officer of an evaluating facility where the patient has been examined under Part 2 of this article, which recommendation is supported by the opinions of two physicians or a physician and a psychologist who have personally examined the patient within the preceding five days and who agree that the patient is a mentally ill person requiring involuntary treatment but who does not meet the outpatient treatment requirements of paragraphs (1) and (2) of subsection (c) of Code Section 37-3-90. Such recommendation of the chief medical officer and the opinions of the physicians or physician and psychologist shall be entered on a certificate. The certificate shall be filed along with a petition for a hearing in the court of the county in which the patient is being detained for evaluation. Nothing in this chapter shall be construed to prohibit a physician or psychologist or a chief medical officer who has previously executed any other certificate authorized by the provisions of this chapter from executing a certificate provided for in this Code section for the same or any other patient. The certificate and petition shall be filed within five days, Saturdays, Sundays, and holidays excluded, after the patient is admitted to a facility for evaluation under Code Section 37-3-63. Such filing shall authorize detention of the patient by the facility pending completion of a full and fair hearing under this Code section. Copies of the certificate shall be served on the patient and his representatives within five days after the certificate is filed and shall be accompanied by:
1. A notice that a hearing will be held and the time and place thereof;
2. A notice that the patient has a right to counsel, that the patient or his representatives may apply immediately to the court to have counsel appointed if the patient cannot afford counsel, and that in such case the court will appoint counsel for the patient unless the patient indicates in writing that he does not desire to be represented by counsel;
3. A copy of the individualized service plan developed by the facility under this chapter shall be sent to the patient and shall be sent to the patient's representative if requested by such representative. Notice of the right to receive such plan shall be given to the representatives at the time the service plan is sent to the patient;
4. A notice that the patient has a right to be examined by a physician or psychologist of his own choice at his own expense and to have that physician or psychologist submit a suggested service plan for the patient which conforms with the requirements of paragraph (9) of Code Section 37-3-1; and
5. A notice that the patient may waive in writing the hearing described in subsection (c) of this Code section.
If the hearing is waived, the certificate shall serve as authorization for the patient to begin treatment under the terms of the individualized service plan; and the chief medical officer of the facility where the patient is located shall be responsible for the supervision of the service plan.
In any case in which a patient is retained in an evaluating facility pursuant to a petition filed under subsection (a) of this Code section, the court shall hold a full and fair hearing as provided in Code Section 37-3-81.1 unless the hearing is waived in writing by the patient. The hearing shall be held no sooner than seven days and no later than 12 days after the petition is filed with the court.

(Ga. L. 1857, p. 123, § 2; Code 1863, §§ 1297, 1298; Code 1868, §§ 1378, 1379; Code 1873, §§ 1357, 1358; Code 1882, §§ 1357, 1358; Civil Code 1895, §§ 1435, 1437; Civil Code 1910, §§ 1601, 1603; Code 1933, §§ 35-228, 35-230; Ga. L. 1958, p. 697, § 12; Ga. L. 1960, p. 837, § 12; Code 1933, § 88-512, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-522, enacted by Ga. L. 1965, p. 490, § 1; Code 1933, §§ 88-506.3, 88-506.4, 88-506.8, enacted by Ga. L. 1969, p. 505, § 1; Code 1933, § 88-506.2, enacted by Ga. L. 1978, p. 1789, § 1; Ga. L. 1979, p. 723, § 7; Ga. L. 1982, p. 3, § 37; Ga. L. 1982, p. 937, §§ 6, 8; Ga. L. 1983, p. 3, § 28; Ga. L. 1985, p. 1024, § 2; Ga. L. 1986, p. 1098, § 4; Ga. L. 1991, p. 1059, § 14; Ga. L. 1992, p. 1902, § 6; Ga. L. 1996, p. 6, § 37.)

Cross references.

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

Law reviews.

- For article comparing hospitalization of mentally ill under former Code 1933, Ch. 49-6, to present procedures under this chapter, see 23 Ga. B.J. 191 (1960). For article discussing the development and practice of committing the mentally ill, see 20 J. of Pub. L. 3 (1971).

JUDICIAL DECISIONS

Determination of mental illness limited and summary proceedings.

- Jurisdiction of the ordinary (now probate judge) in issuing a commission to examine a person as to mental illness, competency, or the management of one's estate is limited; the proceedings are summary, and should be strictly construed. Proceedings must show on their face all facts essential to the ordinary's (now probate judge's) jurisdiction and strict compliance with statute. Trapnell v. Smith, 131 Ga. App. 254, 205 S.E.2d 875 (1974).

In finding for the government in an action brought by a wife after her husband shot her rendering her paraplegic, the court concluded that the wife failed to show that the alleged tortfeasor, a licensed social worker, had the requisite control over the husband to give rise to a legal duty as articulated by the Georgia Supreme Court in Bradley Center, Inc. v. Wessner, 250 Ga. 199 (1982); specifically, the court found that at no time did the husband meet the involuntary commitment standard under O.C.G.A. § 37-3-1(9.1), and that even if the husband had exhibited the statutory conditions for involuntary confinement, the social worker alone could not have had him committed in accordance with O.C.G.A. § 37-3-81. Grijalva v. United States, 289 F. Supp. 2d 1372 (M.D. Ga. 2003).

Facts sufficient to sustain criteria for civil commitment.

- When the physician's testimony in a release hearing shows only that the defendant did not engage in aggressive, psychotic behavior and was not mentally ill during the defendant's stay at the hospital while in a structured environment, and in view of defendant's medical history, the history of the defendant's functioning in society, and the history of the case, all of which are facts which the trial court is authorized to consider, the trial court was authorized to find that the criteria for civil commitment have been met. Pitts v. State, 151 Ga. App. 691, 261 S.E.2d 435 (1979).

Cited in Montgomery v. Gilbert, 112 Ga. App. 751, 146 S.E.2d 115 (1965); Crane v. Crane, 225 Ga. 605, 170 S.E.2d 392 (1969); Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980); Georgia Mental Health Inst. v. Brady, 263 Ga. 591, 436 S.E.2d 219 (1993).

OPINIONS OF THE ATTORNEY GENERAL

Medical admissions county was a county in which the procedure was governed by Ga. L. 1969, p. 505. 1972 Op. Att'y Gen. No. U72-29.

Effect of involuntary commitment.

- Involuntary commitment in a state hospital is not tantamount to an adjudication of incompetence and when the superintendent has not imposed any restriction upon the patient, the patient may exercise civil rights including the right to receive funds and property by inheritance without intervention of a guardian. 1962 Op. Att'y Gen. p. 407.

Evidence used to determine whether mentally ill person can afford counsel.

- Determination as to whether mentally ill person shall be financially unable to employ counsel to represent the person in a committal hearing would have to be made by the court from evidence obtained from sources other than from the statement of the mentally ill person. 1963-65 Op. Att'y Gen. p. 730.

If court determines that mentally ill person is financially able to employ counsel to represent the person in the committal hearing, then the court should not appoint an attorney to represent that person; if, however, the court determines that the person is financially unable to employ counsel, then the court shall appoint an attorney to represent that person. 1963-65 Op. Att'y Gen. p. 730.

Authority to commit, by implication carries authority to pay transportation cost.

- When person committed by judge of probate court to out-of-state psychiatric institution, law authorizing commitment by implication authorizes judge of probate court to arrange for necessary transportation. 1962 Op. Att'y Gen. p. 418.

RESEARCH REFERENCES

ALR.

- Test or criterion of mental condition within contemplation of statute providing for commitment of persons because of mental condition, 158 A.L.R. 1220.

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

Standard of proof required under statute providing for commitment of sexual offenders or sexual psychopaths, 96 A.L.R.3d 840.

Modern status of rules as to standard of proof required in civil commitment proceedings, 97 A.L.R.3d 780.

Validity, construction, and application of overt act requirement of state statutes providing for commitment of sexually dangerous persons, 56 A.L.R. 6th 647.

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