Law reviews.

- For note, "Deinstitutionalization: Georgia's Progress in Developing and Implementing an 'Effectively Working Plan' as Required by Olmstead v. L.C. ex rel," see 25 Ga. St. U.L. Rev. 699 (2009).

CHAPTER 1 GOVERNING AND REGULATION OF MENTAL HEALTH

Article 1 General Provisions.
Article 2 Powers and Duties of the Department of Behavioral Health and Developmental Disabilities.
Article 3 Promulgation of Rules and Regulations.
Article 4 Hearings, Appeals, Evidence, etc.
Article 5 Enforcement Procedures.
Part 1 INSPECTION WARRANTS.
Part 2 INJUNCTIONS.
Part 3 CRIMINAL PENALTIES.
Article 6 Behavioral Health Reform and Innovation Commission.
Cross references.

- Mental competency proceedings for juveniles, T. 15, C. 11, A. 4.

Administrative Rules and Regulations.

- Rules and regulations on "Mental Health and Mental Retardation and Substance Abuse," Official Compilation of the Rules and Regulations of the State of Georgia, Department of Human Resources, Chapters 290-4-1 and 290-4-3 et seq.

RESEARCH REFERENCES

ALR.

- Adequacy of defense counsel's representation of criminal client regarding incompetency, insanity, and related issues, 17 A.L.R.4th 575.

ARTICLE 1 GENERAL PROVISIONS

37-1-1. Definitions.

As used in this title, the term:

  1. "Addictive disease" means a chronic, often relapsing, brain disease that causes compulsive alcohol or drug seeking and use despite harmful consequences to the individual who is addicted and to those around him or her.
  2. "Board" means the Board of Behavioral Health and Developmental Disabilities.
  3. "Commissioner" means the commissioner of behavioral health and developmental disabilities.
  4. "Community service board" means a public mental health, developmental disabilities, and addictive diseases board established pursuant to Code Section 37-2-6.
  5. "Consumer" means a natural person who has been or is a recipient of disability services.
  6. "County board of health" means a county board of health established in accordance with Chapter 3 of Title 31 and includes its duly authorized agents.
  7. "Department" means the Department of Behavioral Health and Developmental Disabilities and includes its duly authorized agents and designees.
  8. "Developmental disability" means a severe, chronic disability of an individual that:
    1. Is attributable to a significant intellectual disability, or any combination of a significant intellectual disability and physical impairments;
    2. Is manifested before the individual attains age 22;
    3. Is likely to continue indefinitely;
    4. Results in substantial functional limitations in three or more of the following areas of major life activities:
      1. Self-care;
      2. Receptive and expressive language;
      3. Learning;
      4. Mobility;
      5. Self-direction; and
      6. Capacity for independent living; and
    5. Reflects the person's need for a combination and sequence of special, interdisciplinary, or generic services, individualized supports, or other forms of assistance which are of lifelong or extended duration and are individually planned and coordinated.
  9. "Disability" means:
    1. Mental or emotional illness;
    2. Developmental disability; or
    3. Addictive disease.
  10. "Disability services" means services to the disabled or services which are designed to prevent or ameliorate the effect of a disability.
  11. "Disabled" means any person or persons having a disability.
  12. "Mental illness" means a disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.
  13. "Mentally ill" means having a mental illness.
  14. "Peace officer" means any federal, city, or county police officer, any officer of the Georgia State Patrol, or any sheriff or deputy sheriff.
  15. "Penal offense" means a violation of a law of the United States, this state, or a political subdivision thereof for which the offender may be confined in a state prison or a city or county jail or any other penal institution.
  16. "Physician" means any person duly authorized to practice medicine in this state under Chapter 34 of Title 43.
  17. "Psychologist" means any person duly licensed to practice psychology in this state under Chapter 39 of Title 43.
  18. "Regional board" means a regional board established in accordance with Code Section 37-2-4.1 as that Code section existed on June 30, 2002.
  19. "Regional coordinator" means an employee of the department who acts as the department's agent and designee to manage community services for consumers of disability services within a mental health, developmental disabilities, and addictive diseases region established in accordance with Code Section 37-2-3.
  20. "Regional office" means an office created pursuant to Code Section 37-2-4.1. Such office shall be an office of the department and serve as the entity for the administration of disability services in a region.
  21. "Regional planning board" means a planning board established in accordance with Code Section 37-2-4.1.
  22. "Regional services administrator" means an employee of the department who, under the supervision of the regional coordinator, manages the purchase or authorization of services, or both, for consumers of disability services, the assessment and coordination of services, and ongoing monitoring and evaluation of services provided within a region established in accordance with Code Section 37-2-3.
  23. "Regional state hospital administrator" means the chief administrative officer of a state owned or state operated hospital and the state owned or operated community programs in a region. The regional state hospital administrator has overall management responsibility for the regional state hospital and manages services provided by employees of the regional state hospital and employees of state owned or operated community programs within a mental health, developmental disabilities, and addictive diseases region established in accordance with Code Section 37-2-3.
  24. "Resident" means a person who is a legal resident of the State of Georgia.
  25. "State mental health facility" means, for purposes of this title and Title 31, a hospital, inpatient unit, or other institution operated by or under contract with the department for its operation, including the replacement or reorganization of the facility.

(Ga. L. 1958, p. 697, § 1; Ga. L. 1960, p. 837, § 1; Code 1933, § 88-501, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1969, p. 505, § 1; Ga. L. 1978, p. 1789, § 1; Ga. L. 1982, p. 3, § 37; Ga. L. 1991, p. 1059, § 6; Ga. L. 1993, p. 1445, § 5; Ga. L. 1994, p. 97, § 37; Ga. L. 2002, p. 1324, §§ 1-6, 2-1; Ga. L. 2006, p. 310, § 2/HB 1223; Ga. L. 2009, p. 453, § 3-1/HB 228; Ga. L. 2016, p. 257, § 7/SB 319.)

The 2016 amendment, effective April 26, 2016, substituted the present provisions of paragraph (17) for the former provisions, which read: "'Psychologist' means any person authorized under the laws of this state to practice as a licensed psychologist as set forth in paragraph (3) of Code Section 43-39-1."

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2009, a semicolon was deleted from the end of paragraph (2), a second subdivision (8)(D)(ii) was redesignated as subdivision (8)(D)(iii), and the definitions in paragraphs (12) and (13) were arranged in alphabetical order.

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which amends this Code section, provides, in § 19.1, not codified by the General Assembly, that the amendment is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed the 1993 amendment to this Code section.

Ga. L. 2006, p. 310, § 10/HB 1223, not codified by the General Assembly, provides that: "Nothing in this Act shall be construed to affect or abate any right accrued or vested prior to July 1, 2006, or any action or proceeding commenced prior to July 1, 2006, under any law amended or repealed by this Act."

Ga. L. 2006, p. 310, § 11/HB 1223, not codified by the General Assembly, provides that those provisions of that Act which authorize community service boards to amend their bylaws and authorize county governing authorities to appoint no sooner than May 1, 2006, any community service board members to take office on July 1, 2006, shall become effective April 21, 2006.

Ga. L. 2016, p. 257, § 1/SB 319, not codified by the General Assembly, provides: "The General Assembly finds that the mental health and wellness needs of Georgia's citizens require the availability of trained mental health professionals who can accurately diagnose, treat, prescribe, and appropriately assess the mental and emotional illnesses, disorders, and conditions from which they suffer and the vocational, educational, interpersonal, and intrapersonal needs essential to living and learning how to live productive and useful lives. It is the intent of the General Assembly to assure geographical and financial access for all of Georgia's citizens to excellent mental health services to the extent that Georgia's resources and regulations permit. To these ends, Georgia regulates its licensed psychiatrists, psychologists, professional counselors, marriage and family therapists, and clinical social workers who provide graduate level professional services to Georgia's private and public mental health services and to its public mental health, educational, and vocational support systems. The General Assembly seeks in such regulatory process to protect the public and assure it receives high quality and appropriate services and to define the scopes of practice and diagnostic authority for each of these professional groups consistent with the graduate level training and supervision, or its equivalent, that the members of each profession have sought and successfully completed. The General Assembly has empowered and authorized the Georgia Composite Medical Board, the State Board of Examiners of Psychologists, and the Georgia Composite Board of Professional Counselors, Social Workers, and Marriage and Family Therapists to fulfill these responsibilities and expects them to work together to assure a continuum of professional services that ensure appropriate diagnostic and assessment functions for each profession and the psychotherapeutic and counseling treatment services appropriate to each profession. The General Assembly recognizes that advances in medicine, science, education, training, and service delivery occur constantly in our modern history and therefore also expects the regulatory boards for each profession to assure that its licensees seek and successfully complete appropriate continuing education and training for the functions and services authorized to each profession."

Law reviews.

- For article, "Courts: General Provisions," 28 Ga. St. U.L. Rev. 293 (2011). For note on 1991 amendment of this Code section, see 8 Ga. St. U.L. Rev. 121 (1992).

JUDICIAL DECISIONS

Mental illness.

- Patient's personality disorders and schizo-affective disorder qualified as mental illness under O.C.G.A. § 37-1-1(12). Dupree v. Schwarzkophf, Ga. , S.E.2d (June 27, 2011).

Cited in Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980); Benham v. Edwards, 501 F. Supp. 1050 (N.D. Ga. 1980).

OPINIONS OF THE ATTORNEY GENERAL

"Doctors of medicine", similar terms construed.

- Terms "doctors of medicine," "licensed doctors of medicine," "doctors of medicine licensed to practice in the state," and similar terms used in § 43-34-21 include persons who have graduated from a medical college and hold the degree of Doctor of Medicine and those who hold the degree of Doctor of Osteopathy; where those terms are used to describe the qualifications of physicians to be hired by the Department of Human Resources, the department may hire physicians who have either degree. 1974 Op. Att'y Gen. No. 74-50.

Department may employ degree holders in osteopathy and medicine.

- Since the phrase "doctor of medicine who is licensed to practice in the state" refers to those persons who hold degrees as Doctors of Osteopathy as well as Doctors of Medicine, the department may employ persons holding either degree; however, while all practicing osteopaths are licensed by statute, thus qualifying all of them to practice in state hospitals or community service programs, not all hold "full practice" licenses. 1974 Op. Att'y Gen. No. 74-50.

RESEARCH REFERENCES

ALR.

- Adequacy of defense counsel's representation of criminal client - issues of incompetency, 70 A.L.R.5th 1.

Adequacy of defense counsel's representation of criminal client - pretrial conduct or conduct at unspecified time regarding issues of insanity, 72 A.L.R.5th 109.

37-1-2. Legislative findings as to mental health, developmental disability, and addictive disease problems and services; role of county governing authorities; purpose of this chapter and Chapter 2 of this title.

  1. The General Assembly finds that the state has a need to continually improve its system for providing effective, efficient, and quality mental health, developmental disability, and addictive disease services. Further, the General Assembly finds that a comprehensive range of quality services and opportunities is vitally important to the existence and well-being of individuals with mental health, developmental disability, or addictive disease needs and their families. The General Assembly further finds that the state has an obligation and a responsibility to develop and implement planning and service delivery systems which focus on a core set of consumer oriented, community based values and principles which include, but are not limited to, the following:
    1. Consumers and families should have choices about services and providers and should have substantive input into the planning and delivery of all services;
    2. A single point of accountability should exist for fiscal, service, and administrative issues to ensure better coordination of services among all programs and providers and to promote cost-effective, efficient service delivery and administration;
    3. The system should be appropriately comprehensive and adaptive to allow consumers and their families to access the services they desire and need;
    4. Public programs are the foundation of the service planning and delivery system and they should be valued and nurtured; at the same time, while assuring comparable standards of quality, private sector involvement should be increased to allow for expanded consumer choice and improved cost effectiveness;
    5. Planning should begin at the local level and include local government, consumers, families, advocates, and other interested local parties;
    6. The system should ensure that the needs of consumers who are most in need are met at the appropriate service levels; at the same time, prevention strategies should be emphasized for those disabilities which are known to be preventable;
    7. The system should be designed to provide the highest quality of services utilizing flexibility in funding, incentives, and outcome evaluation techniques which reinforce quality, accountability, efficiency, and consumer satisfaction;
    8. The functions of service planning, coordination, contracting, resource allocation, and consumer assessment should be separated from the actual treatment, habilitation, and prevention services provided by contractors;
    9. Consumers and families should have a single, community based point of entry into the system;
    10. Consumers, staff, providers, and regional planning board and community service board members should receive ongoing training and education and should have access to key management resources such as information systems and technical and professional support services; and
    11. The department is responsible for ensuring the appropriate use of state, federal, and other funds to provide quality services for individuals with mental health, developmental disabilities, or addictive disease needs who are served by the public system and to protect consumers of these services from abuse and maltreatment.
  2. Local governments, specifically county governing authorities, have provided outstanding leadership and support for mental health, developmental disability, and addictive disease programs, and the General Assembly finds that their investments, both personal and capital, should be valued and utilized in any improved system. As such, the state and any new governing structure should take special precautions to ensure that the county governing authorities have an expanded level of input into decision making and resource allocation and that any services or programs should continue to use and expand their use of county facilities and resources wherever appropriate and possible.
  3. The purpose of this chapter and Chapter 2 of this title is to provide for a comprehensive and improved mental health, developmental disability, and addictive disease services planning and delivery system in this state which will develop and promote the essential public interests of the state and its citizens. The provisions of this chapter and Chapter 2 of this title shall be liberally construed to achieve their purposes.

(Code 1981, §37-1-2, enacted by Ga. L. 1993, p. 1445, § 6; Ga. L. 1995, p. 10, § 37; Ga. L. 2002, p. 1324, § 1-6; Ga. L. 2009, p. 453, § 3-1/HB 228.)

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which enacts this Code section, provides, in § 19.1, not codified by the General Assembly, that this Code section is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed this Code section.

37-1-3. Board of Behavioral Health and Developmental Disabilities; members; removal.

  1. There is created the Board of Behavioral Health and Developmental Disabilities which shall establish the general policy to be followed by the Department of Behavioral Health and Developmental Disabilities. The powers, functions, and duties of the Board of Human Resources as they existed on June 30, 2009, with regard to the Division of Mental Health, Developmental Disabilities, and Addictive Diseases are transferred to the Board of Behavioral Health and Developmental Disabilities effective July 1, 2009. The board shall consist of nine members appointed by the Governor and confirmed by the Senate.
  2. The Governor shall designate the initial terms of the members of the board as follows: three members shall be appointed for one year; three members shall be appointed for two years; and three members shall be appointed for three years. Thereafter, all succeeding appointments shall be for three-year terms from the expiration of the previous term.
  3. Vacancies in office shall be filled by appointment by the Governor in the same manner as the appointment to the position on the board which becomes vacant. An appointment to fill a vacancy other than by expiration of a term of office shall be for the balance of the unexpired term.
  4. Members of the board may be removed from office under the same conditions for removal from office of members of professional licensing boards provided in Code Section 43-1-17.
  5. There shall be a chairperson of the board elected by and from the membership of the board who shall be the presiding officer of the board.
  6. The members of the board shall receive a per diem allowance and expenses as shall be set and approved by the Office of Planning and Budget in conformance with rates and allowances set for members of other state boards.

(Code 1981, §37-1-3, enacted by Ga. L. 2009, p. 453, § 3-1/HB 228.)

37-1-4. Department of Behavioral Health and Developmental Disabilities; functions, duties; commissioner.

  1. There is created a Department of Behavioral Health and Developmental Disabilities. The powers, functions, and duties of the Department of Human Resources as they existed on June 30, 2009, relating to the Division of Mental Health, Developmental Disabilities, and Addictive Diseases are transferred to the Department of Behavioral Health and Developmental Disabilities effective July 1, 2009.
  2. There is created the position of commissioner of behavioral health and developmental disabilities. The commissioner shall be the chief administrative officer of the department and be both appointed and removed by the board, subject to the approval of the Governor. Subject to the general policy established by the board, the commissioner shall supervise, direct, account for, organize, plan, administer, and execute the functions vested in the department.
  3. There shall be created in the department such divisions as may be found necessary for its effective operation. The commissioner shall have the power to allocate and reallocate functions among the divisions within the department.

(Code 1981, §37-1-4, enacted by Ga. L. 2009, p. 453, § 3-1/HB 228.)

37-1-5. Department to succeed to applicable rules and regulations; transfer of rights, responsibilities, duties, personnel, and property.

  1. The Department of Behavioral Health and Developmental Disabilities shall succeed to all rules, regulations, policies, procedures, and administrative orders of the Department of Human Resources that are in effect on June 30, 2009, or scheduled to go into effect on or after July 1, 2009, and which relate to the functions transferred to the Department of Behavioral Health and Developmental Disabilities pursuant to Code Section 37-1-4 and shall further succeed to any rights, privileges, entitlements, obligations, and duties of the Department of Human Resources that are in effect on June 30, 2009, which relate to the functions transferred to the Department of Behavioral Health and Developmental Disabilities pursuant to Code Section 37-1-4. Such rules, regulations, policies, procedures, and administrative orders shall remain in effect until amended, repealed, superseded, or nullified by the Department of Behavioral Health and Developmental Disabilities by proper authority or as otherwise provided by law.
  2. The rights, privileges, entitlements, and duties of parties to contracts, leases, agreements, and other transactions entered into before July 1, 2009, by the Department of Human Resources which relate to the functions transferred to the Department of Behavioral Health and Developmental Disabilities pursuant to Code Section 37-1-4 shall continue to exist; and none of these rights, privileges, entitlements, and duties are impaired or diminished by reason of the transfer of the functions to the Department of Behavioral Health and Developmental Disabilities. In all such instances, the Department of Behavioral Health and Developmental Disabilities shall be substituted for the Department of Human Resources, and the Department of Behavioral Health and Developmental Disabilities shall succeed to the rights and duties under such contracts, leases, agreements, and other transactions.
  3. All persons employed by the Department of Human Resources in capacities which relate to the functions transferred to the Department of Behavioral Health and Developmental Disabilities pursuant to Code Section 37-1-4 on June 30, 2009, shall, on July 1, 2009, become employees of the Department of Behavioral Health and Developmental Disabilities in similar capacities, as determined by the commissioner of behavioral health and developmental disabilities. Such employees shall be subject to the employment practices and policies of the Department of Behavioral Health and Developmental Disabilities on and after July 1, 2009, but the compensation and benefits of such transferred employees shall not be reduced as a result of such transfer. Employees who are subject to the rules of the State Personnel Board and who are transferred to the department shall retain all existing rights under such rules. Retirement rights of such transferred employees existing under the Employees' Retirement System of Georgia or other public retirement systems on June 30, 2009, shall not be impaired or interrupted by the transfer of such employees and membership in any such retirement system shall continue in the same status possessed by the transferred employees on June 30, 2009. Accrued annual and sick leave possessed by said employees on June 30, 2009, shall be retained by said employees as employees of the Department of Behavioral Health and Developmental Disabilities.
  4. On July 1, 2009, the Department of Behavioral Health and Developmental Disabilities shall receive custody of the state owned real property in the custody of the Department of Human Resources on June 30, 2009, and which pertains to the functions transferred to the Department of Behavioral Health and Developmental Disabilities pursuant to Code Section 37-1-4.

(Code 1981, §37-1-5, enacted by Ga. L. 2009, p. 453, § 3-1/HB 228; Ga. L. 2012, p. 446, § 2-56/HB 642.)

The 2012 amendment, effective July 1, 2012, in subsection (c), in the third sentence, deleted "and thereby under the State Personnel Administration" following "State Personnel Board" and substituted "under such rules" for "under the State Personnel Administration" at the end.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2009, "State Personnel Administration" was substituted for "State Merit System of Personnel Administration" twice in the third sentence of subsection (c).

Editor's notes.

- Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

37-1-6. Service of notice of pendency of action by second original process.

When any action is brought against the department, the board, the commissioner, or any employee or agent thereof or when any action is brought in which the department could be held responsible for damages awarded in such action, it shall be the duty of the plaintiff to provide for service of notice of the pendency of such action by providing for service of a second original process, issued from the court in which the action is filed, upon the commissioner personally or upon a person designated by the commissioner in writing to serve as agent for the acceptance of such service of process. The service of process in such action shall not be perfected until such second original process has been served as provided in this Code section. The provisions of this Code section shall be cumulative of any other requirements imposed by law for the service of process or notice.

(Code 1981, §37-1-6, enacted by Ga. L. 2010, p. 286, § 1/SB 244.)

Effective date.

- This Code section became effective July 1, 2010.

ARTICLE 2 POWERS AND DUTIES OF THE DEPARTMENT OF BEHAVIORAL HEALTH AND DEVELOPMENTAL DISABILITIES

Cross references.

- Juvenile Court disposition of mentally ill or mentally retarded child, Uniform Rules for the Juvenile Courts of Georgia, Rule 20.3.

Law reviews.

- For annual survey on administrative law, see 66 Mercer L. Rev. 1 (2014).

37-1-20. Obligations of the Department of Behavioral Health and Developmental Disabilities.

The department shall:

  1. Establish, administer, and supervise the state programs for mental health, developmental disabilities, and addictive diseases;
  2. Direct, supervise, and control the medical and physical care and treatment; recovery; and social, employment, housing, and community supports and services based on single or co-occurring diagnoses provided by the institutions, contractors, and programs under its control, management, or supervision;
  3. Plan for and implement the coordination of mental health, developmental disability, and addictive disease services with physical health services, and the prevention of any of these diseases or conditions, and develop and promulgate rules and regulations to require that all health services be coordinated and that the public and private providers of any of these services that receive state support notify other providers of services to the same patients of the conditions, treatment, and medication regimens each provider is prescribing and delivering;
  4. Ensure that providers of mental health, developmental disability, or addictive disease services coordinate with providers of primary and specialty health care so that treatment of conditions of the brain and the body can be integrated to promote recovery, health, and well-being;
  5. Have authority to contract, including performance based contracts which may include financial incentives or consequences based on the results achieved by a contractor as measured by output, quality, or outcome measures, for services with community service boards, private agencies, and other public entities for the provision of services within a service area so as to provide an adequate array of services and choice of providers for consumers and to comply with the applicable federal laws and rules and regulations related to public or private hospitals; hospital authorities; medical schools and training and educational institutions; departments and agencies of this state; county or municipal governments; any person, partnership, corporation, or association, whether public or private; and the United States government or the government of any other state;
  6. Establish and support programs for the training of professional and technical personnel as well as regional advisory councils and community service boards;
  7. Have authority to conduct research into the causes and treatment of disability and into the means of effectively promoting mental health and addictive disease recovery;
  8. Assign specific responsibility to one or more units of the department for the development of a disability prevention program. The objectives of such program shall include, but are not limited to, monitoring of completed and ongoing research related to the prevention of disability, implementation of programs known to be preventive, and testing, where practical, of those measures having a substantive potential for the prevention of disability;
  9. Establish a system for local administration of mental health, developmental disability, and addictive disease services in institutions and in the community;
  10. Make and administer budget allocations to fund the operation of mental health, developmental disabilities, and addictive diseases facilities and programs;
  11. Coordinate in consultation with providers, professionals, and other experts the development of appropriate outcome measures for client centered service delivery systems;
  12. Establish, operate, supervise, and staff programs and facilities for the treatment of disabilities throughout this state;
  13. Disseminate information about available services and the facilities through which such services may be obtained;
  14. Supervise the local office's exercise of its responsibility concerning funding and delivery of disability services;
  15. Supervise the local offices concerning the administration of grants, gifts, moneys, and donations for purposes pertaining to mental health, developmental disabilities, and addictive diseases;
  16. Supervise the administration of contracts with any hospital, community service board, or any public or private providers without regard to regional or state boundaries for the provision of disability services and in making and entering into all contracts necessary or incidental to the performance of the duties and functions of the department and the local offices;
  17. Regulate the delivery of care, including behavioral interventions and medication administration by licensed staff, or certified staff as determined by the department, within residential settings serving only persons who are receiving services authorized or financed, in whole or in part, by the department;
  18. Classify host homes for persons whose services are financially supported, in whole or in part, by funds authorized through the department. As used in this Code section, the term "host home" means a private residence in a residential area in which the occupant owner or lessee provides housing and provides or arranges for the provision of food, one or more personal services, supports, care, or treatment exclusively for one or two persons who are not related to the occupant owner or lessee by blood or marriage. A host home shall be occupied by the owner or lessee, who shall not be an employee of the same community provider which provides the host home services by contract with the department. The department shall approve and enter into agreements with community providers which, in turn, contract with host homes. The occupant owner or lessee shall not be the guardian of any person served or of their property nor the agent in such person's advance directive for health care. The placement determination for each person placed in a host home shall be made according to such person's choice as well as the individual needs of such person in accordance with the requirements of Code Section 37-3-162, 37-4-122, or 37-7-162, as applicable to such person;
  19. Provide guidelines for and oversight of host homes, which may include, but not be limited to, criteria to become a host home, requirements relating to physical plants and supports, placement procedures, and ongoing oversight requirements;
  20. Supervise the regular visitation of disability services facilities and programs in order to assure contracted providers are licensed and accredited by the designated agencies prescribed by the department, and in order to evaluate the effectiveness and appropriateness of the services, as such services relate to the health, safety, and welfare of service recipients, and to provide technical assistance to programs in delivering services;
  21. Establish a unit of the department which shall receive and consider complaints from individuals receiving services, make recommendations to the commissioner regarding such complaints, and ensure that the rights of individuals receiving services are fully protected;
  22. With respect to housing opportunities for persons with mental illness and co-occurring disorders:
    1. Coordinate the department's programs and services with other state agencies and housing providers;
    2. Facilitate partnerships with local communities;
    3. Educate the public on the need for supportive housing;
    4. Collect information on the need for supportive housing and monitor the benefit of such housing; and
    5. Identify and determine best practices for the provision of services connected to housing;
  23. Exercise all powers and duties provided for in this title or which may be deemed necessary to effectuate the purposes of this title;
  24. Assign specific responsibility to one or more units of the department for the development of programs designed to serve disabled infants, children, and youth. To the extent practicable, such units shall cooperate with the Georgia Department of Education and the University System of Georgia in developing such programs;
  25. Have the right to designate private institutions as state institutions; to contract with such private institutions for such activities, in carrying out this title, as the department may deem necessary from time to time; and to exercise such supervision and cooperation in the operation of such designated private institutions as the department may deem necessary;
  26. Establish policies and procedures governing fiscal standards and practices of community service boards and their respective governing boards; and
  27. Coordinate the establishment and operation of a data base and network to serve as a comprehensive management information system for disability services and programs.

(Code 1933, §§ 88-601, 88-602, 88-603, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-603, enacted by Ga. L. 1976, p. 953, § 1; Ga. L. 1982, p. 3, § 37; Ga. L. 1987, p. 3, § 37; Ga. L. 1993, p. 1445, § 7; Ga. L. 2002, p. 1324, § 1-6; Ga. L. 2003, p. 558, §§ 5, 6; Ga. L. 2008, p. 263, § 2/SB 469; Ga. L. 2009, p. 8, § 37/SB 46; Ga. L. 2009, p. 453, § 3-1/HB 228; Ga. L. 2014, p. 309, § 1/SB 349; Ga. L. 2015, p. 1361, § 1/HB 512.)

The 2014 amendment, effective April 16, 2014, inserted ", including performance based contracts which may include financial incentives or consequences based on the results achieved by a contractor as measured by output, quality, or outcome measures," near the beginning of paragraph (5); deleted "and" at the end of paragraph (23); substituted "; and" for a period at the end of paragraph (24); and added paragraph (25).

The 2015 amendment, effective July 1, 2015, substituted "advisory councils" for "planning boards" in paragraph (6); substituted "local administration" for "regional administration" in paragraph (9); deleted "to regional offices established by the board pursuant to Code Section 37-2-4.1" following "budget allocations" in paragraph (10); substituted "the local office's exercise of its responsibility concerning" for "the regional office's exercise of its responsibility and authority concerning" in paragraph (14); substituted "local offices concerning the administration" for "regional offices concerning the receipt and administration" in paragraph (15); substituted "local offices" for "regional offices" in paragraph (16); added paragraph (20); redesignated former paragraphs (20) through (25) as present paragraphs (21) through (26), respectively; deleted "and" at the end of paragraph (25); substituted "; and" for a period at the end of paragraph (26); and added paragraph (27).

Code Commission notes.

- The amendment of this Code section by Ga. L. 2009, p. 8, § 37, irreconcilably conflicted with and was treated as superseded by Ga. L. 2009, p. 453, § 3-1. See County of Butts v. Strahan, 151 Ga. 417 (1921).

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which amends this Code section, provides, in § 19.1, not codified by the General Assembly, that the amendment is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed the 1993 amendment to this Code section.

RESEARCH REFERENCES

ALR.

- Adequacy of defense counsel's representation of criminal client - issues of incompetency, 70 A.L.R.5th 1.

Adequacy of defense counsel's representation of criminal client - pretrial conduct or conduct at unspecified time regarding issues of insanity, 72 A.L.R.5th 109.

JUDICIAL DECISIONS

Cited in Lakeview Behavioral Health Sys., LLC v. UHS Peachford, LP, 321 Ga. App. 820, 743 S.E.2d 492 (2013).

37-1-21. Institutional powers and duties.

  1. The department is designated and empowered as the agency of this state responsible for supervision and administrative control of: state facilities for the treatment of mental illness or the habilitation and treatment of individuals with developmental disabilities; programs for the care, custody, and treatment of addictive disease; and other facilities, institutions, or programs which now or hereafter come under the supervision and administrative control of the department. With respect to all such facilities, institutions, or programs the department shall have the following powers and duties:
    1. To create all necessary offices, appoint and remove all officers of such facilities, institutions, or programs, prescribe and change the duties of such officers from time to time, and fix their salaries, other than the commissioner's salary, as provided for by the pay plan covering positions in accordance with rules and regulations of the State Personnel Board. The department shall discharge and cause to be prosecuted any officer or other person who shall assault any patient in any of such facilities or institutions or who shall knowingly use toward any such patient any other or greater force than the occasion may require;
    2. To refuse or accept and hold in trust for any such facility, institution, or program any grant or devise of land or bequest or donation of money or other property for the particular use specified or, if no use is specified, for the general use of such facility, institution, or program;
    3. To bring suit in its name for any claims which any such facility or institution may have, however arising;
    4. To appoint police of such facilities, institutions, or programs who are authorized, while on the grounds or in the buildings of the respective facilities, institutions, or programs to make arrests with the same authority, power, privilege, and duties as the sheriffs of the respective counties in which such facilities, institutions, or programs are situated; and
    5. To have full authority to receive and treat patients ordered admitted to such facilities, institutions, or programs pursuant to any law, to receive any voluntary patients, to discharge such patients pursuant to law, to contract with patients or other persons acting on behalf of patients or legally responsible therefor, and in general to exercise any power or function with respect to patients provided by law. It is the intent of the General Assembly to provide always the highest quality of diagnosis, treatment, custody, and care consistent with medical, therapeutic, and habilitative evidence based practice and knowledge. It is the further intent of the General Assembly that the powers and duties of the department with respect to patients shall be administered by persons properly trained professionally for the exercise of their duties, consistent with the intention expressed in this Code section.
  2. The board is empowered to prescribe all rules and regulations for the management of such facilities, institutions, and programs not conflicting with the law.

(Code 1933, § 88-115, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 2002, p. 1324, § 1-6; Ga. L. 2009, p. 453, § 3-1/HB 228; Ga. L. 2009, p. 745, § 2/SB 97; Ga. L. 2010, p. 286, § 2/SB 244; Ga. L. 2012, p. 446, § 2-57/HB 642.)

The 2010 amendment, effective July 1, 2010, deleted ". If because of the contagious or infectious nature of the disease of persons arrested facilities are not available for their detention, such police shall be authorized to confine such persons within the respective facilities, institutions, or programs pending trial as provided in other cases. After trial and conviction of any such person, he or she shall be sentenced to serve his or her term of sentence in the secured ward of the facility, institution, or program" following "situated" at the end of paragraph (a)(4).

The 2012 amendment, effective July 1, 2012, in the first sentence of paragraph (a)(1), inserted ", other than the commissioner's salary,", deleted "under the State Personnel Administration and" following "covering positions", and deleted ", except that the commissioner shall not be subject to the State Personnel Administration or the rules and regulations of the State Personnel Board" following "State Personnel Board" at the end.

Cross references.

- Tuberculosis hospitals, T. 31, C. 14.

Editor's notes.

- Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

JUDICIAL DECISIONS

Cited in Hicks v. Shea, 149 Ga. App. 396, 254 S.E.2d 511 (1979); Fields v. Pittman, 571 F. Supp. 32 (N.D. Ga. 1983).

OPINIONS OF THE ATTORNEY GENERAL

It is the express intent of the General Assembly to always provide the highest degree of medical, scientific, and other diagnosis, treatment, custody, and care as is consistent with medical practice. 1965-66 Op. Att'y Gen. No. 65-74.

Authority to classify and operate certain institutions.

- Department of Human Resources has authority to classify units of Gracewood State School and Hospital and Central State Hospital as skilled nursing home and general hospital and has ample authority to operate these institutions. 1969 Op. Att'y Gen. No. 69-243.

Regulation of abortion procedures by board within constitutional limitations.

- Under its purposely broad statutory authority to safeguard the public health as well as under its statutory authority in specific areas of the public health field, the Board of Human Resources may regulate, for public health purposes, the performance of abortion procedures, limited, however, by the constitutional doctrines enunciated by the Supreme Court of the United States. 1973 Op. Att'y Gen. No. 73-24.

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, § 20.

C.J.S.

- 39A C.J.S., Health and Environment, §§ 4, 6.

37-1-22. Redesignated.

Reserved.

Editor's notes.

- Ga. L. 2011, p. 752, § 37(2), effective May 13, 2011, redesignated former Code Section 37-1-22 as present Code Section 37-1-40, and reserved the designation of this Code section.

37-1-23. Rules of practice and procedure; availability.

The board is directed to prescribe rules of practice and procedure in order to implement this chapter. The department is directed to make the board's and the department's rules available for distribution.

(Code 1933, § 88-308, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1993, p. 1445, § 9; Ga. L. 2002, p. 1324, § 1-6; Ga. L. 2009, p. 453, § 3-1/HB 228.)

Cross references.

- County boards of health generally, T. 31, C. 3.

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which amends this Code section, provides, in § 19.1, not codified by the General Assembly, that the amendment is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed the 1993 amendment to this Code section.

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, § 45.

C.J.S.

- 39A C.J.S., Health and Environment, §§ 20, 23, 24, 25.

37-1-24. Use of psychologist or physician in lieu of one another.

No provision in this title shall require the department or any facility or private facility or any community service board to utilize a physician in lieu of a psychologist or a psychologist in lieu of a physician in performing functions under this title even though this title authorizes either a physician or a psychologist to perform the function.

(Code 1981, §37-1-24, enacted by Ga. L. 1991, p. 1059, § 7; Ga. L. 1993, p. 1445, § 10; Ga. L. 2002, p. 1324, § 1-6; Ga. L. 2009, p. 453, § 3-1/HB 228.)

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which amends this Code section, provides, in § 19.1, not codified by the General Assembly, that the amendment is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed the 1993 amendment to this Code section.

Law reviews.

- For note on 1991 enactment of this Code section, see 8 Ga. St. U.L. Rev. 121 (1992).

37-1-25. Purchase of real property authorized.

The department is authorized to purchase land or lands adjacent to or near lands now under the control of the department where, in the opinion of the department, the land is needed for the benefit of one of the institutions under its control and management, to pay for such land out of any funds which may be available for such purpose, and to take title to land so purchased in the name of the State of Georgia for the use of the department.

(Code 1981, §37-1-25, enacted by Ga. L. 2009, p. 453, § 3-1/HB 228.)

37-1-26. Sale of surplus products.

  1. The department shall sell, to the best advantage, all surplus products of the Central State Hospital or other institutions under the control and supervision of the department and shall apply the proceeds thereof to the maintenance of the institution from which such surplus products are received. Should any surplus funds arise from this source, they shall be paid into the state treasury annually; and the department shall, at the end of each quarter, make a detailed report of all such transactions to the Governor.
  2. It is not the intention of this Code section to encourage competition in any way by the state, its institutions, agencies, departments or branches, or other subdivisions with the individual, private farmers of this state, or others, in the production and sale of agricultural or industrial commodities or products in due course of commerce.

(Code 1981, §37-1-26, enacted by Ga. L. 2009, p. 453, § 3-1/HB 228.)

37-1-27. Legislative findings; Suicide Prevention Program; implementation.

  1. The General Assembly makes the following findings:
    1. Every year in Georgia, approximately 850 people die from suicide;
    2. More Georgians die from suicide than from homicide;
    3. More teenagers and young adults die from suicide than from cancer, heart disease, AIDS, birth defects, stroke, pneumonia, influenza, and chronic lung disease combined;
    4. Many who attempt suicide do not seek professional help after the attempt;
    5. In Georgia, three out of four suicide deaths involve a firearm;
    6. Factors such as aging, drug and alcohol abuse, unemployment, mental illness, isolation, and bullying in school contribute to causes of suicide; and
    7. Education is necessary to inform the public about the causes of suicide and the early intervention programs that are available.
  2. There is created the Suicide Prevention Program to be managed by the department.
  3. The department, in implementing the Suicide Prevention Program, shall:
    1. Establish a link between state agencies and offices, including but not limited to the Division of Aging Services and Division of Family and Children Services of the Department of Human Services, the Department of Public Health, local government agencies, health care providers, hospitals, nursing homes, and jails to collect data on suicide deaths and attempted suicides;
    2. Work with public officials to improve firearm safety;
    3. Improve education for nurses, judges, physician assistants, social workers, psychologists, and other counselors with regard to suicide education and prevention and expand educational resources for professionals working with those persons most at risk of suicide;
    4. Provide training and minimal screening tools for clergy, teachers and other educational staff, and correctional workers on how to identify and respond to persons at risk of suicide;
    5. Provide educational programs for family members of persons at an elevated risk of suicide;
    6. Develop standardized protocols to be used by the department in reviewing suicide death scene investigations;
    7. Work to increase the number of follow-back studies of suicides;
    8. Work to increase the number of hospitals that code for external causes of injury;
    9. Implement a state-wide reporting system for reporting suicides;
    10. Support pilot projects to link and analyze information on self-destructive behavior from various, distinct data systems; and
    11. Perform such other tasks as deemed appropriate to further suicide education and prevention in Georgia.
  4. The Suicide Prevention Program shall coordinate with and receive technical assistance from epidemiologists and other staff of the Department of Public Health to support the research and outreach efforts related to this program.

(Code 1981, §37-1-27, enacted by Ga. L. 2009, p. 453, § 3-1/HB 228; Ga. L. 2011, p. 705, § 5-20/HB 214.)

The 2011 amendment, effective July 1, 2011, substituted "Department of Public Health" for "Department of Community Health" in paragraph (c)(1); and substituted "Department of Public Health" for "Division of Public Health of the Department of Community Health" in subsection (d).

Cross references.

- Training of public school personnel in suicide prevention and awareness; no duty of care imposed, § 20-2-779.1.

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011).

37-1-28. Conviction data.

  1. As used in this Code section, the term "conviction data" means a record of a finding or verdict of guilty or a plea of guilty or a plea of nolo contendere with regard to any crime, regardless of whether an appeal of the conviction has been sought.
  2. The department may receive from any law enforcement agency conviction data that is relevant to a person whom the department or its contractors is considering as a final selectee for employment in a position the duties of which involve direct care, treatment, custodial responsibilities, or any combination thereof for its clients. The department may also receive conviction data which is relevant to a person whom the department or its contractors is considering as a final selectee for employment in a position if, in the judgment of the employer, a final employment decision regarding the selectee can only be made by a review of conviction data in relation to the particular duties of the position and the security and safety of clients, the general public, or other employees.
  3. The department shall establish a uniform method of obtaining conviction data under subsection (a) of this Code section which shall be applicable to the department and its contractors. Such uniform method shall require the submission to the Georgia Crime Information Center of fingerprints and the records search fee in accordance with Code Section 35-3-35. Upon receipt thereof, the Georgia Crime Information Center shall promptly transmit fingerprints to the Federal Bureau of Investigation for a search of bureau records and an appropriate report and shall promptly conduct a search of its own records and records to which it has access. After receiving the fingerprints and fee, the Georgia Crime Information Center shall notify the department in writing of any derogatory finding, including, but not limited to, any conviction data regarding the fingerprint records check or if there is no such finding.
  4. All conviction data received shall be for the exclusive purpose of making employment decisions or decisions concerning individuals in the care of the department and shall be privileged and shall not be released or otherwise disclosed to any other person or agency. Immediately following the employment decisions or upon receipt of the conviction data, all such conviction data collected by the department or its agent shall be maintained by the department or agent pursuant to laws regarding and the rules or regulations of the Federal Bureau of Investigation and the Georgia Crime Information Center, as is applicable. Penalties for the unauthorized release or disclosure of any conviction data shall be as prescribed pursuant to laws regarding and rules or regulations of the Federal Bureau of Investigation and the Georgia Crime Information Center, as is applicable.
  5. The department may promulgate written rules and regulations to implement the provisions of this Code section.
  6. The department shall be authorized to conduct a name or descriptor based check of any person's criminal history information, including arrest and conviction data, and other information from the Georgia Crime Information Center regarding any adult person who provides care or is in contact with persons under the care of the department without the consent of such person and without fingerprint comparison to the fullest extent permissible by federal and state law.
  7. If the department is participating in the program described in subparagraph (a)(1)(F) of Code Section 35-3-33, the Georgia Bureau of Investigation and the Federal Bureau of Investigation shall be authorized to retain fingerprints obtained pursuant to this Code section for such program and the department shall notify the individual whose fingerprints were taken of the parameters of such retention.

(Code 1981, §37-1-28, enacted by Ga. L. 2009, p. 453, § 3-1/HB 228; Ga. L. 2010, p. 286, § 3/SB 244; Ga. L. 2018, p. 507, § 2-11/SB 336.)

The 2010 amendment, effective July 1, 2010, substituted "department or its contractors" for "department, its contractors, or a district or county health agency" twice in subsection (b); deleted former subsection (f), which read: "The department may receive from any law enforcement agency criminal history information, including arrest and conviction data, and any and all other information which it may be provided pursuant to state or federal law which is relevant to any person in the care of the department. The department shall establish a uniform method of obtaining criminal history information under this subsection. Such method shall require the submission to the Georgia Crime Information Center of fingerprints together with any required records search fee in accordance with Code Section 35-3-35. Upon receipt thereof, the Georgia Crime Information Center shall promptly transmit the fingerprints submitted by the department to the Federal Bureau of Investigation for a search of bureau records and an appropriate report and shall promptly conduct a search of its own records and records to which it has access. Such method shall also permit the submission of the names alone of such persons to the proper law enforcement agency for a name based check of such person's criminal history information as maintained by the Georgia Crime Information Center and the Federal Bureau of Investigation. In such circumstances, the department shall submit fingerprints of those persons together with any required records search fee, to the Federal Bureau of Investigation within 15 calendar days of the date of the name based check on that person. The fingerprints shall be forwarded to the Federal Bureau of Investigation through the Georgia Crime Information Center in accordance with Code Section 35-3-35. Following the submission of such fingerprints, the department may receive the criminal history information, including arrest and conviction data, relevant to such person."; and redesignated former subsection (g) as present subsection (f).

The 2018 amendment, effective July 1, 2018, added subsection (g).

Law reviews.

- For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 119 (2018).

37-1-29. Crisis stabilization unit defined; certification of units; minimum standards and requirements; designation as an emergency receiving facility; legislative intent.

  1. As used in this Code section, the term "crisis stabilization unit" means a short-term residential program operated for the purpose of providing psychiatric stabilization and detoxification services that complies with applicable department standards and that provides brief, intensive crisis services 24 hours a day, seven days a week.
  2. The department shall be authorized to certify crisis stabilization units pursuant to this Code section for the purpose of providing psychiatric stabilization and detoxification services in a community based setting rather than inpatient hospitalization and other higher levels of care.
  3. The department shall establish minimum standards and requirements for the certification of crisis stabilization units in its policies and procedures. Following any changes to such policies and procedures pertaining to crisis stabilization units, notification of such changes shall be posted on the department's website within 45 days and shall remain posted on the website for at least six months. Such policies and procedures shall include, but not be limited to, the following:
    1. The capacity to carry out emergency receiving and evaluating functions;
    2. Voluntary and involuntary admission criteria;
    3. The prohibition to hold itself out as a hospital or bill for hospital or inpatient services;
    4. The unit is operated by an accredited and licensed, if applicable, health care authority;
    5. The unit has operating agreements with private and public inpatient hospitals and treatment facilities;
    6. The unit operates within the guidelines of the federal Emergency Medical Treatment and Active Labor Act with respect to stabilization and transfer of clients;
    7. Length of stay;
    8. Designation of transitional beds;
    9. Billing;
    10. Physician and registered professional nurse oversight;
    11. Staff to client ratios;
    12. Patient restraint or seclusion;
    13. Safety and emergency protocols;
    14. Pharmacy services;
    15. Medication administration; and
    16. Reporting requirements.
  4. A crisis stabilization unit shall be designated as an emergency receiving facility under Code Sections 37-3-40 and 37-7-40 and an evaluation facility under Code Sections 37-3-60 and 37-7-60, but shall not be designated as a treatment facility under Code Section 37-3-80 or 37-7-80. Crisis stabilization units may admit individuals on a voluntary basis. Individuals may be provided 24 hour observation, detoxification and stabilization services, medication prescribed by a physician, and other appropriate treatment or services.
  5. No entity shall operate as a crisis stabilization unit without having a valid certificate issued pursuant to this Code section.
  6. Application for a certificate to operate a crisis stabilization unit shall be submitted to the department in the manner prescribed by the department's policies and procedures.
  7. The department shall issue a certificate to an applicant who meets all the standards and requirements as set forth in the department's policies and procedures for the certification of crisis stabilization units. The certificate shall be nontransferable for a change of location or governing body.
  8. Each certified crisis stabilization unit shall permit authorized department representatives to enter upon and inspect any and all premises for which a certificate has been granted or applied for.
  9. The department may deny any application for certification which does not meet all the standards and requirements set forth in the department's policies and procedures for the certification of crisis stabilization units and may suspend or revoke a certification which has been issued if an applicant or a certified crisis stabilization unit violates any such policies and procedures; provided, however, that before any order is entered denying a certification application or suspending or revoking a certification previously granted, the applicant or certificate holder, as the case may be, shall be afforded an opportunity for a hearing as provided for in Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."
  10. Any program certified as a crisis stabilization unit pursuant to this Code section shall be exempt from the requirements to obtain a certificate of need pursuant to Article 3 of Chapter 6 of Title 31.
  11. It is the intent of the General Assembly that this Code section provide a public benefit and comply with all safety net obligations in this title and that patients without private health care coverage receive priority consideration for crisis stabilization unit placement.

(Code 1981, §37-1-29, enacted by Ga. L. 2011, p. 346, § 1/HB 343; Ga. L. 2015, p. 1062, § 1/SB 131.)

Effective date.

- This Code section became effective July 1, 2011.

The 2015 amendment, effective July 1, 2015, substituted "authorized to certify" for "authorized to license" in subsection (b); in the introductory paragraph of subsection (c), in the first sentence, substituted "the certification" for "the licensure", added "in its policies and procedures" at the end, added the second sentence, substituted "Such policies and procedures" for "Such standards and requirements" at the beginning of the third sentence; substituted "certificate" for "license" in subsections (e), (f), (h) and in two places in subsection (g); substituted "policies and procedures" for "rules and regulations" in subsection (f); in subsection (g), substituted "standards and requirements as set forth in the department's policies and procedures for the certification" for "rules and regulations for the licensure" in the first sentence; in subsection (h), substituted "certified crisis stabilization unit" for "licensee" near the beginning and deleted "so that verification of compliance with all relevant laws or regulations can be made" at the end; substituted the present provisions of subsection (i) for the former provisions, which read: "The department may deny any license application which does not meet all the rules and regulations for the licensure of crisis stabilization units and may suspend or revoke a license which has been issued if an applicant or a licensee violates any such rules and regulations; provided, however, that before any order is entered denying a license application or suspending or revoking a license previously granted, the applicant or license holder, as the case may be, shall be afforded an opportunity for a hearing as provided for in Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.'"; substituted "certified" for "licensed" in subsection (j); and deleted former subsection (l), which read: "The department shall promulgate rules and regulations in accordance with the General Assembly's intent as set out in subsection (k) of this Code section to implement the provisions of this Code section."

ARTICLE 3 PROMULGATION OF RULES AND REGULATIONS

Cross references.

- Administration and enforcement of health laws generally, T. 31, C. 5.

37-1-40. Power of board to provide and promote standards, rules, and regulations.

The board shall adopt and promulgate written rules, regulations, and standards as may be deemed necessary to effectuate the purposes of this title and which shall be the basis of state financial participation in mental health, developmental disabilities, and addictive diseases programs.

(Code 1933, § 88-601, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-603, enacted by Ga. L. 1976, p. 953, § 1; Code 1981, §37-1-41; Ga. L. 1993, p. 1445, § 8; Ga. L. 2002, p. 1324, § 1-6; Ga. L. 2009, p. 453, § 3-1/HB 228; Code 1981, §37-1-40, as redesignated by Ga. L. 2011, p. 752, § 37/HB 142.)

The 2011 amendment, effective May 13, 2011, part of an Act to revise, modernize, and correct the Code, redesignated former Code Section 37-1-22 as Code Section 37-1-40.

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which amends this Code section, provides, in § 19.1, not codified by the General Assembly, that the amendment is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed the 1993 amendment to this Code section.

Ga. L. 2011, p. 752, § 37/HB 142, effective May 13, 2011, redesignated former Code Section 37-1-40 as Code Section 37-1-41.

OPINIONS OF THE ATTORNEY GENERAL

Department of Human Resources can enter into contract with a county board of health and, on the department's part, the consideration given for the contract may be the services of a state employee. 1975 Op. Att'y Gen. No. 75-22.

Consideration given by county for contract may be rendering services to state which county would not otherwise be obligated to perform, or, if the county is already obligated to perform such services, some other consideration such as money may be substituted. 1975 Op. Att'y Gen. No. 75-22.

Department of Human Resources may contract for mental retardation services with agencies that spend moneys received under those contracts for building improvements; provided, however, that public agencies may make permanent improvements only on property to which the agencies hold fee simple title. 1977 Op. Att'y Gen. No. 77-81.

Authority to give consideration.

- Since counties and the department have authority to contract, it was self-evident that counties and the department have authority to give consideration for the contract since, pursuant to § 13-3-40, consideration was essential to a contract and a contract without consideration was unenforceable. 1975 Op. Att'y Gen. No. 75-22.

Only limitation on power of the Department of Human Resources to contract would be that the purpose of any particular contract would have to come within the parameters of the grant of contracting power contained in the statute. 1975 Op. Att'y Gen. No. 75-22.

37-1-41. Rules and regulations of Board of Behavioral Health and Developmental Disabilities.

All rules and regulations of the Board of Behavioral Health and Developmental Disabilities shall be adopted pursuant to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."

(Code 1933, § 88-307, enacted by Ga. L. 1964, p. 499, § 1; Code 1981, §37-1-40; Ga. L. 1993, p. 1445, § 11; Ga. L. 2009, p. 453, § 3-1/HB 228; Code 1981, §37-1-41, as redesignated by Ga. L. 2011, p. 752, § 37/HB 142.)

The 2011 amendment, effective May 13, 2011, part of an Act to revise, modernize, and correct the Code, redesignated former Code Section 37-1-40 as Code Section 37-1-41.

Cross references.

- County boards of health generally, T. 31, C. 3.

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1994, p. 437, § 12, effective July 1, 1994, not codified by the General Assembly, amends Ga. L. 1993, p. 1445, § 19.1 to exempt the 1993 amendment of this Code section from repeal on June 30, 1999.

JUDICIAL DECISIONS

Administrative appeal procedures not provided.

- O.C.G.A. § 37-1-41, which requires that county boards of health conduct hearings before adopting rules and regulations, did not provide administrative appeal procedures to a hotel, motel, and restaurant association in a dispute over the assessment of inspection fees by a county board of health where no hearing had been held. Aldridge v. Georgia Hospitality & Travel Ass'n, 251 Ga. 234, 304 S.E.2d 708 (1983) (decided prior to 1993 amendment).

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, §§ 20, 36.

C.J.S.

- 39A C.J.S., Health and Environment, § 18 et seq.

ALR.

- Regulation of business of tattooing, 81 A.L.R.3d 1212.

Adequacy of defense counsel's representation of criminal client - issues of incompetency, 70 A.L.R.5th 1.

Adequacy of defense counsel's representation of criminal client - pretrial conduct or conduct at unspecified time regarding issues of insanity, 72 A.L.R.5th 109.

ARTICLE 4 HEARINGS, APPEALS, EVIDENCE, ETC.

37-1-50. Necessity of hearing; powers of hearing examiner, qualification.

Reserved. Repealed by Ga. L. 2010, p. 286, § 4/SB 244, effective July 1, 2010.

Editor's notes.

- This Code section was based on Code 1933, § 88-304, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1977, p. 309, § 1; Ga. L. 1993, p. 1445, § 12; Ga. L. 2009, p. 453, § 3-1/HB 228.

37-1-51 and 37-1-52.

Reserved. Repealed by Ga. L. 1993, p. 1445, § 12, effective July 1, 1994.

Editor's notes.

- These Code sections were based on Code 1933, §§ 88-303, 88-305, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1982, p. 3, § 37.

Ga. L. 1994, p. 437, § 12, effective July 1, 1994, not codified by the General Assembly, amends Ga. L. 1993, p. 1445, § 19.1 to exempt the 1993 repeal of these Code sections from repeal on June 30, 1999.

37-1-53. Classification of privileged materials.

Notwithstanding any other provision of law to the contrary, the department is authorized by regulation to classify as confidential and privileged documents, reports, and other information and data obtained by them from persons, firms, corporations, municipalities, counties, and other public authorities and political subdivisions where such matters relate to secret processes, formulas, and methods or where such matters were obtained or furnished on a confidential basis. All matters so classified shall not be subject to public inspection or discovery and shall not be subject to production or disclosure in any court of law or elsewhere until and unless the judge of the court of competent jurisdiction, after in camera inspection, determines that the public interest requires such production and disclosure or that such production and disclosure may be necessary in the interest of justice. This subsection shall not apply to clinical records maintained pursuant to Code Sections 37-3-166, 37-3-167, 37-4-125, 37-4-126, 37-7-166, and 37-7-167.

(Code 1933, § 88-306, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1993, p. 1445, § 12; Ga. L. 2009, p. 453, § 3-1/HB 228.)

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1994, p. 437, § 12, effective July 1, 1994, not codified by the General Assembly, amends Ga. L. 1993, p. 1445, § 19.1 to except the 1993 amendment of this Code section from repeal on June 30, 1999.

Administrative Rules and Regulations.

- Hearing and hearing records, confidentiality, custody, language, access, costs, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Human Resources, Administration, Hearings and Petitions for Rule-Making, Sec. 290-1-1-.18.

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, § 45.

C.J.S.

- 39A C.J.S., Health and Environment, §§ 20, 23, 24, 25.

ARTICLE 5 ENFORCEMENT PROCEDURES

Cross references.

- Administration and enforcement of health laws generally, T. 31, C. 5.

PART 1 I NSPECTION WARRANTS

Cross references.

- Searches and seizures generally, T. 17, C. 5.

Further provisions regarding use of inspection warrants in enforcement of public health laws, § 31-5-20 et seq.

37-1-70. Definitions.

As used in this part, the term:

  1. "Inspection warrant" means a warrant authorizing a search or inspection of private property where such a search or inspection is one that is necessary for the enforcement of a "mental health law."
  2. "Mental health law" means Code Sections 37-3-7, 37-3-8, and 37-4-7, Chapter 6 of this title, and any rule or regulation duly promulgated thereunder.

(Code 1933, § 88-301a, enacted by Ga. L. 1975, p. 693, § 1; Ga. L. 1993, p. 1445, § 13; Ga. L. 2009, p. 453, § 3-1/HB 228; Ga. L. 2010, p. 286, § 5/SB 244.)

The 2010 amendment, effective July 1, 2010, substituted "37-4-7" for "37-4-4" in paragraph (2).

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1994, p. 437, § 12, effective July 1, 1994, not codified by the General Assembly, amends Ga. L. 1993, p. 1445, § 19.1 to except the 1993 amendment of this Code section from repeal on June 30, 1999.

RESEARCH REFERENCES

ALR.

- Adequacy of defense counsel's representation of criminal client - issues of incompetency, 70 A.L.R.5th 1.

37-1-71. Persons who may obtain inspection warrants; authorization of searches and inspections of property.

The commissioner or the commissioner's delegate, in addition to other procedures now or hereafter provided, may obtain an inspection warrant under the conditions specified in this chapter. Such warrant shall authorize the commissioner or the commissioner's delegate to conduct a search or inspection of property either with or without the consent of the person whose property is to be searched or inspected if such search or inspection is one that is elsewhere authorized under the rules and regulations duly promulgated under this title.

(Code 1933, § 88-302a, enacted by Ga. L. 1975, p. 693, § 1; Ga. L. 1993, p. 1445, § 14; Ga. L. 2009, p. 453, § 3-1/HB 228.)

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1994, p. 437, § 12, effective July 1, 1994, not codified by the General Assembly, amends Ga. L. 1993, p. 1445, § 19.1 to except the 1993 amendment of this Code section from repeal on June 30, 1999.

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, §§ 27, 37.

C.J.S.

- 39A C.J.S., Health and Environment, §§ 51 et seq., 57, 71, 85, 85, 86.

37-1-72. Issuance; grounds.

  1. Inspection warrants shall be issued only by a judge of a court of record whose territorial jurisdiction encompasses the property to be inspected.
  2. The issuing judge shall issue the warrant when the judge is satisfied that the following conditions are met:
    1. The one seeking the warrant must establish under oath or affirmation that the property to be inspected is to be inspected as a part of a legally authorized program of inspection which includes that property or that there is probable cause for believing that there is a condition, object, activity, or circumstance which legally justifies such an inspection of that property; and
    2. The issuing judge determines that the issuance of the warrant is authorized by this part.

(Code 1933, §§ 88-303a, 88-304a, enacted by Ga. L. 1975, p. 693, § 1; Ga. L. 2009, p. 453, § 3-1/HB 228.)

RESEARCH REFERENCES

C.J.S.

- 39A C.J.S., Health and Environment, §§ 84, 85, 86.

37-1-73. Contents.

The inspection warrant shall be validly issued only if it meets the following requirements:

  1. The warrant is attached to the affidavit required to be made in order to obtain the warrant;
  2. The warrant describes either directly or by reference to the affidavit the property upon which the inspection is to occur and is sufficiently accurate that the executor of the warrant and the owner or possessor of the property can reasonably determine from it the property of which the warrant authorizes an inspection;
  3. The warrant indicates the conditions, objects, activities, or circumstances which the inspection is intended to check or reveal; and
  4. The warrant refers in general terms to the statutory or regulatory provisions sought to be enforced.

(Code 1933, § 88-305a, enacted by Ga. L. 1975, p. 693, § 1; Ga. L. 2009, p. 453, § 3-1/HB 228.)

RESEARCH REFERENCES

C.J.S.

- 39A C.J.S., Health and Environment, §§ 84, 85, 86.

37-1-74. Exclusion of evidence obtained.

No facts discovered or evidence obtained in an inspection conducted under authority of an inspection warrant issued pursuant to this part shall be competent as evidence in any criminal proceeding against any party.

(Code 1933, § 88-306a, enacted by Ga. L. 1975, p. 693, § 1; Ga. L. 2009, p. 453, § 3-1/HB 228.)

RESEARCH REFERENCES

C.J.S.

- 39A C.J.S., Health and Environment, §§ 85, 85, 86.

PART 2 I NJUNCTIONS

37-1-90. Injunctions for the purpose of enjoining violations of the provisions of this title.

The Department of Behavioral Health and Developmental Disabilities is empowered to institute appropriate proceedings for injunction in the courts of competent jurisdiction in this state for the purpose of enjoining a violation of any provision of this title as now existing or as may be hereafter amended or of any regulation or order duly issued by the board or department. The department is also empowered to maintain action for injunction to abate any public nuisance which is injurious to the public health, safety, or comfort. Such actions may be maintained notwithstanding the fact that such violation also constitutes a crime and notwithstanding that other adequate remedies at law exist. Such actions may be instituted in the name of the department in the county in which a violation of any provision of this title occurs.

(Code 1933, § 88-302, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1993, p. 1445, § 15; Ga. L. 2009, p. 453, § 3-1/HB 228.)

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1994, p. 437, § 12, effective July 1, 1994, not codified by the General Assembly, amends Ga. L. 1993, p. 1445, § 19.1 to except the 1993 amendment of this Code section from repeal on June 30, 1999.

JUDICIAL DECISIONS

Cited in Cobb County Health Dep't v. Henson, 226 Ga. 801, 177 S.E.2d 710 (1970); Cason v. Upson County Bd. of Health, 227 Ga. 451, 181 S.E.2d 487 (1971).

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Health, §§ 43, 50.

C.J.S.

- 39A C.J.S., Health and Environment, §§ 44, 51.

ALR.

- Adequacy of defense counsel's representation of criminal client - issues of incompetency, 70 A.L.R.5th 1.

PART 3 C RIMINAL PENALTIES

37-1-100. Penalty for violations of the provisions of this title.

Any person violating the provisions of this title shall be guilty of a misdemeanor.

(Code 1933, § 88-301, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 2009, p. 453, § 3-1/HB 228.)

JUDICIAL DECISIONS

Cited in Culverhouse v. Atlanta Ass'n for Convalescent Aged Persons, 127 Ga. App. 574, 194 S.E.2d 299 (1972).

RESEARCH REFERENCES

C.J.S.

- 39A C.J.S., Health and Environment, § 88.

ALR.

- Adequacy of defense counsel's representation of criminal client - issues of incompetency, 70 A.L.R.5th 1.

Adequacy of defense counsel's representation of criminal client - pretrial conduct or conduct at unspecified time regarding issues of insanity, 72 A.L.R.5th 109.

ARTICLE 6 BEHAVIORAL HEALTH REFORM AND INNOVATION COMMISSION

Effective date.

- This article became effective July 1, 2019.

37-1-110. Legislative findings.

The General Assembly finds and determines that:

  1. Over the last decade the State of Georgia has invested significant resources toward the transformation of the behavioral health service delivery system; and
  2. The conclusion of the settlement agreement with the United States Department of Justice will mark significant accomplishments in system performance and presents the opportunity to conduct a systematic study to promote the continued progress of the state behavioral health system. Such a study and the formulation of recommendations for behavioral health innovation can best be carried out through an established commission.

(Code 1981, §37-1-110, enacted by Ga. L. 2019, p. 614, § 1/HB 514.)

37-1-111. Commission created; "commission" defined.

  1. There is created the Georgia Behavioral Health Reform and Innovation Commission for the purpose of conducting a comprehensive review of the behavioral health system in Georgia. Such review shall include the behavioral health services and facilities available in this state, the identification of behavioral health issues in children, adolescents, and adults, the role the educational system has in the identification and treatment of behavioral health issues, the impact behavioral health issues have on the court system and correctional system, the legal and systemic barriers to treatment of mental illnesses, workforce shortages that impact the delivery of care, whether there is sufficient access to behavioral health services and supports and the role of payers in such access, the impact on how untreated behavioral illness can impact children into adulthood, the need for aftercare for persons exiting the criminal justice system, and the impact of behavioral illness on the state's homeless population.
  2. As used in this article, the term "commission" means the Georgia Behavioral Health Reform and Innovation Commission.

(Code 1981, §37-1-111, enacted by Ga. L. 2019, p. 614, § 1/HB 514.)

37-1-112. Members; terms; officers; operational matters.

  1. The commission shall be composed of 24 members as follows:
    1. The following members appointed by the Governor:
      1. A chairperson;
      2. A psychiatrist who specializes in children and adolescents;
      3. A psychiatrist who specializes in adults;
      4. A health care provider with expertise in traumatic brain injuries;
      5. A state education official with broad experience in education policy;
      6. A chief executive officer of a mental health facility;
      7. A forensic psychologist;
      8. A local education official; and
      9. A professional who specializes in substance abuse and addiction;
    2. The following members appointed by the President of the Senate:
      1. Two members of the Senate;
      2. A sheriff;
      3. A licensed clinical behavioral health professional;
      4. A behavioral health advocate; and
      5. A representative of a community service board;
    3. The following members appointed by the Speaker of the House of Representatives:
      1. Two members of the House of Representatives;
      2. A police chief;
      3. A licensed clinical behavioral health professional;
      4. A behavioral health advocate; and
      5. A judge who presides in an accountability court, as defined in Code Section 15-1-18; and
    4. The following members appointed by the Chief Justice of the Supreme Court of Georgia:
      1. One Justice of the Supreme Court of Georgia; and
      2. Two judges.
  2. Each nonlegislative member of the commission shall be appointed to serve for a term of two years or until his or her successor is duly appointed. Legislative members of the commission shall serve until completion of their current terms of office. Any member may be appointed to succeed himself or herself on the commission. If a member of the commission is an elected or appointed official, such member, or his or her designee, shall be removed from the commission if such member no longer serves as such elected or appointed official.
  3. The following members shall serve as nonvoting ex officio members of the commission:
    1. Commissioner of the Department of Behavioral Health and Developmental Disabilities or his or her designee;
    2. Commissioner of the Department of Juvenile Justice or his or her designee;
    3. Commissioner of the Department of Corrections or his or her designee;
    4. Commissioner of the Department of Community Health or his or her designee;
    5. Commissioner of the Department of Community Supervision;
    6. Director of the Georgia Bureau of Investigation or his or her designee; and
    7. Director of the Division of Family and Children Services of the Department of Human Services or his or her designee.
  4. The commission may elect officers, other than the chairperson, as it deems necessary. The chairperson shall vote only to break a tie.
  5. The commission shall be attached for administrative purposes only to the Office of Planning and Budget. The Office of Planning and Budget and the Department of Behavioral Health and Developmental Disabilities shall provide staff support for the commission. The Office of Planning and Budget and the Department of Behavioral Health and Developmental Disabilities shall use any funds specifically appropriated to such office and department to support the work of the commission.

(Code 1981, §37-1-112, enacted by Ga. L. 2019, p. 614, § 1/HB 514.)

37-1-113. Meetings; prior approval of agenda; quorum; allowances and reimbursements.

  1. The commission may conduct meetings at such places and times as it deems necessary or convenient to enable it to fully and effectively exercise its powers, perform its duties, and accomplish the objectives and purposes of this article. The commission shall hold meetings at the call of the chairperson. The commission shall meet not less than twice every year.
  2. Until the conclusion of the settlement agreement with the United States Department of Justice, the agenda for any meeting of the commission shall be submitted to the Governor's Executive Counsel for prior approval.
  3. A quorum for transacting business shall be a majority of the members of the commission.
  4. Legislative members of the commission shall receive the allowances provided for in Code Section 28-1-8. Nonlegislative members shall receive a daily expense allowance in the amount specified in subsection (b) of Code Section 45-7-21 as well as the mileage or transportation allowance authorized for state employees. Members of the commission who are state officials, other than legislative members, or state employees shall receive no compensation for their services on the commission, but shall be reimbursed for expenses incurred by them in the performance of their duties as members of the commission in the same manner as they are reimbursed for expenses in their capacities as state officials or state employees. The funds necessary for the reimbursement of the expenses of state officials, other than legislative members, and state employees shall come from funds appropriated to or otherwise available to their respective departments. All other funds necessary to carry out the provisions of this article shall come from funds appropriated to the Senate and the House of Representatives.

(Code 1981, §37-1-113, enacted by Ga. L. 2019, p. 614, § 1/HB 514.)

37-1-114. Duties and powers; use of third parties.

  1. The commission shall have the following duties:
    1. To review the conditions, needs, issues, and problems related to behavioral health issues in this state and to recommend any action, including proposed changes to rules, regulations, policies, and programs, and proposed legislation which the commission deems necessary or appropriate;
    2. To evaluate and consider the best practices, experiences, and results of legislation in other states with regard to the behavioral health system with respect to both children and adults; and
    3. To annually report on the work of the commission to the Governor, President of the Senate, and Speaker of the House of Representatives.
  2. The commission shall have the following powers:
    1. To evaluate how the laws, rules, regulations, policies, and programs affecting the behavioral health system in this state are working;
    2. To request and receive data from and review the records of appropriate state agencies and courts to the greatest extent allowed by state and federal law;
    3. To accept public or private grants, devises, and bequests;
    4. To authorize entering into contracts or agreements through the commission's chairperson necessary or incidental to the performance of its duties;
    5. To establish rules and procedures for conducting the business of the commission; and
    6. To conduct studies, hold public meetings, collect data, or take any other action the commission deems necessary to fulfill its responsibilities.
  3. The commission shall be authorized to retain the services of attorneys, consultants, subject matter experts, economists, budget analysts, data analysts, statisticians, and other individuals or organizations as determined appropriate by the commission. Such services may be obtained through a request for proposal process conducted through the Office of Planning and Budget; provided, however, that any final selection shall be approved by the commission.

(Code 1981, §37-1-114, enacted by Ga. L. 2019, p. 614, § 1/HB 514.)

37-1-115. Subcommittees.

  1. The chairperson of the commission shall appoint the following subcommittees from among the membership of the commission and may also appoint up to two other noncommission-member persons as he or she may determine to be necessary as relevant to and consistent with this article:
    1. Children and Adolescent Behavioral Health;
    2. Involuntary Commitment;
    3. Hospital and Short-Term Care Facilities;
    4. Mental Health Courts and Corrections; and
    5. Workforce and System Development.
  2. The chairperson, at his or her discretion, may designate and appoint other subcommittees from among the membership of the commission and may also appoint up to two other noncommission-member persons as he or she may determine to be necessary as relevant to and consistent with this article.

(Code 1981, §37-1-115, enacted by Ga. L. 2019, p. 614, § 1/HB 514.)

37-1-116. Abolishment and termination.

The commission shall be abolished and this article shall stand repealed on June 30, 2023.

(Code 1981, §37-1-116, enacted by Ga. L. 2019, p. 614, § 1/HB 514.)

CHAPTER 2 ADMINISTRATION OF MENTAL HEALTH, DEVELOPMENTAL DISABILITIES, ADDICTIVE DISEASES, AND OTHER DISABILITY SERVICES

Article 1 General Provisions.
Article 2 Administration of Mental Disability Services.
Part 1 OFFICE OF DISABILITY SERVICES OMBUDSMAN.
Part 2 ADDITIONAL POWERS AND DUTIES.
Cross references.

- State health planning and development generally, T. 31, C. 6.

Regulation and construction of hospitals and other health care facilities, T. 31, C. 7.

Editor's notes.

- Ga. L. 1992, p. 1357, § 1 designated Code Sections 37-2-1 through 37-2-12 as Article 1 of this chapter and enacted Code Sections 37-2-30 [repealed] through 37-2-34, designated as Article 2.

Administrative Rules and Regulations.

- Rules and regulations on "Mental Health and Mental Retardation and Substance Abuse," Official Compilation of the Rules and Regulations of the State of Georgia, Department of Human Resources, Chapters 290-4-1 and 290-4-3 et seq.

Law reviews.

- For annual survey on administrative law, see 66 Mercer L. Rev. 1 (2014). For note on 1991 amendments to this chapter, see 8 Ga. St. U.L. Rev. 121 (1992).

RESEARCH REFERENCES

ALR.

- Validity, construction, and effect of statute requiring consultation with, or approval of, local governmental unit prior to locating group home, halfway house, or similar community residence for the mentally ill, 51 A.L.R.4th 1096.

ARTICLE 1 GENERAL PROVISIONS

Editor's notes.

- Ga. L. 1992, p. 1357, designated Code Sections 37-2-1 through 37-2-12 as Article 1 of this chapter.

37-2-1. Declaration of purpose.

  1. The State of Georgia recognizes its responsibility for its citizens who are mentally ill or developmentally disabled including individuals with epilepsy, cerebral palsy, autism, and other neurologically disabling conditions or who abuse alcohol, narcotics, or other drugs and recognizes an obligation to such citizens to meet their needs through a coordinated system of community facilities, programs, and services.
  2. It is the policy of this state to provide adequate mental health, developmental disability, addictive disease, and other disability services to all its citizens. It is further the policy of this state to provide such services through a unified system which encourages cooperation and sharing of resources among all providers of such services, both governmental and private.
  3. It is the purpose of this chapter to enable and encourage the development of comprehensive, preventive, early detection, habilitative, rehabilitative, and treatment disability services; to improve and expand community programs for the disabled; to provide continuity of care through integration of county, area, regional, and state services and facilities for the disabled; to provide for joint disability services and the sharing of manpower and other resources; and to monitor and restructure the system of providing disability services in the State of Georgia to make better use of the combined public and private resources of the state and local communities.
  4. The provisions of this chapter shall be liberally construed to achieve the objectives set forth in this Code section.

(Code 1933, § 88-601, enacted by Ga. L. 1976, p. 953, § 1; Ga. L. 1986, p. 1213, § 1; Ga. L. 1993, p. 1445, § 16; Ga. L. 1995, p. 1302, § 17; Ga. L. 2002, p. 1324, § 1-7; Ga. L. 2009, p. 453, § 3-1/HB 228.)

Cross references.

- Special education services for children who are physically, mentally, or emotionally disabled, § 20-2-152.

State health planning and development generally, T. 31, C. 6.

Coverage for autism, § 33-24-59.10.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1993, "the" was deleted following "encourage the" near the beginning of subsection (c).

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which amends this Code section, provides, in § 19.1, not codified by the General Assembly, that the amendment is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed the 1993 amendment to this Code section.

JUDICIAL DECISIONS

Community service boards.

- Limited sovereign immunity waiver was subject to a specific exception for assault or battery, and in determining whether this exception applied, it was not necessary that the act have been committed by a state officer or employee. A community service board was a state agency and was immune from a claim arising from the stabbing death of a resident at a community home run by the board. Limited sovereign immunity waiver in the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., was subject to a specific exception for assault or battery, and in determining whether this exception applied, it was not necessary that the act have been committed by a state officer or employee; a community service board was a state agency, and was immune from a claim arising from the stabbing death of a resident at a community home run by the community service board. Oconee Cmty. Serv. Bd. v. Holsey, 266 Ga. App. 385, 597 S.E.2d 489 (2004).

Legislature did not intend for community service boards to be part of the Department of Human Resources (DHR) (now known as the Department of Behavioral Health and Developmental Disabilities for these purposes) or its employees to be department employees under ordinary circumstances; thus, a suit claiming that DHR was liable for the alleged negligence of a board employee should have been dismissed. Dep't of Human Res. v. Crews, 278 Ga. App. 56, 628 S.E.2d 191 (2006).

Cited in Lewis v. Griffin, 258 Ga. 887, 376 S.E.2d 364 (1989); Youngblood v. Gwinnett Rockdale Newton Cmty. Serv. Bd., 273 Ga. 715, 545 S.E.2d 875 (2001); Summerlin v. Ga. Pines Cmty. Serv. Bd., 278 Ga. App. 831, 630 S.E.2d 115 (2006).

37-2-2. Definitions.

As used in this chapter, the term:

  1. "Community service board" means a public mental health, developmental disabilities, and addictive diseases board established pursuant to Code Section 37-2-6.
  2. "Community service board area" means an area inclusive of the counties which fall within the boundaries of a community service board as designated by the department pursuant to subsection (b) of Code Section 37-2-3 for the establishment of a community service board.
  3. "Community service board service area" means a community service board area and any other county or portion thereof in which the community service board provides services.
  4. "Council" means the Behavioral Health Coordinating Council established pursuant to Code Section 37-2-4.
  5. "Governing board" means the governing board of a community service board established pursuant to subsection (b) of Code Section 37-2-6.
  6. "Health services" means any education or service provided by the department, the Department of Public Health, or the Department of Human Services, either directly or by contract.
  7. "Hospital" means a state owned or state operated facility providing services which include, but are not limited to, inpatient care and the diagnosis, care, and treatment or habilitation of the disabled. Such hospital may also provide or manage state owned or operated programs in the community.

(Code 1933, § 88-602, enacted by Ga. L. 1976, p. 953, § 1; Ga. L. 1986, p. 1213, § 1; Ga. L. 1993, p. 1445, § 16; Ga. L. 1995, p. 1302, § 17; Ga. L. 2002, p. 1324, §§ 1-7, 2-2; Ga. L. 2006, p. 310, § 3/HB 1223; Ga. L. 2009, p. 453, § 3-1/HB 228; Ga. L. 2011, p. 705, § 6-3/HB 214; Ga. L. 2014, p. 309, § 2/SB 349.)

The 2011 amendment, effective July 1, 2011, substituted "Department of Public Health" for "Department of Community Health" in paragraph (5).

The 2014 amendment, effective April 16, 2014, added paragraph (5) and redesignated former paragraphs (5) and (6) as present paragraphs (6) and (7), respectively.

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which amends this Code section, provides, in § 19.1, not codified by the General Assembly, that the amendment is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed the 1993 amendment to this Code section.

Ga. L. 2006, p. 310, § 10/HB 1223, not codified by the General Assembly, provides that: "Nothing in this Act shall be construed to affect or abate any right accrued or vested prior to July 1, 2006, or any action or proceeding commenced prior to July 1, 2006, under any law amended or repealed by this Act."

Ga. L. 2006, p. 310, § 11/HB 1223, not codified by the General Assembly, provides that those provisions of that Act which authorize community service boards to amend their bylaws and authorize county governing authorities to appoint no sooner than May 1, 2006, any community service board members to take office on July 1, 2006, shall become effective April 21, 2006.

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011).

JUDICIAL DECISIONS

Board employee not department employee.

- Legislature did not intend for community service boards to be part of the Department of Human Resources (DHR) (now known as the Department of Behavioral Health and Developmental Disabilities for these purposes) or its employees to be department employees under ordinary circumstances; thus, a suit claiming that DHR was liable for the alleged negligence of a board employee should have been dismissed. Dep't of Human Res. v. Crews, 278 Ga. App. 56, 628 S.E.2d 191 (2006).

37-2-2.1. Creation of Division of Mental Health, Developmental Disabilities, and Addictive Diseases.

Repealed by Ga. L. 2009, p. 453, § 3-1/HB 228, effective July 1, 2009.

Editor's notes.

- This Code section was based on Code 1981, § 37-2-2.1, enacted by Ga. L. 1986, p. 1213, § 1; Ga. L. 1993, p. 1445, § 16; Ga. L. 2002, p. 1324, § 1-7.

37-2-3. Designation of boundaries for mental health, development disabilities, and addictive diseases regions; community service board areas.

  1. The board shall designate boundaries for mental health, developmental disabilities, and addictive diseases regions and may modify the boundaries of such regions from time to time as deemed necessary by the board.
  2. The department, with the approval of the commissioner, shall designate community service board areas, which shall serve as boundaries for the establishment of community service boards within this state for the purpose of delivering disability services. The department shall be authorized to initiate the redesignation of such community service board area boundaries and may consider requests from a county or group of counties or a community service board or a group of community service boards for recommended changes to the boundaries of the community service board areas. The department, with the approval of the commissioner, is authorized to redesignate two or more community service board areas as a single community service board area. Two or more community service boards may request that the department, with the approval of the commissioner, merge the community service board areas served by such boards into a single community service board area. If the department, with the approval of the commissioner, authorizes the redesignation or merging of community services board areas pursuant to this paragraph, the assets, equipment, and resources of such community service boards shall become the assets, equipment, and resources of the reconstituted community service board serving the successor single board area. It is the intent of the General Assembly not to limit a community service board to serving only those counties within the boundaries of its community service board area.
  3. To the extent practicable, the boundaries for regional planning boards and offices and community service areas shall not subdivide any county unit. In dividing the state into areas, the board and the department shall take into consideration such factors as geographic boundaries, roads and other means of transportation, population concentrations, city and county lines, other relevant community services, and community economic and social relationships. Consideration shall also be given to the existence of facilities and personnel available in the areas for the delivery of disability services.

(Code 1933, § 88-604, enacted by Ga. L. 1976, p. 953, § 1; Ga. L. 1986, p. 1213, § 1; Ga. L. 1993, p. 1445, § 16; Ga. L. 2002, p. 1324, § 1-7; Ga. L. 2006, p. 310, § 4/HB 1223; Ga. L. 2009, p. 453, § 3-1/HB 228; Ga. L. 2011, p. 705, § 6-3/HB 214; Ga. L. 2014, p. 309, § 3/SB 349.)

The 2011 amendment, effective July 1, 2011, substituted "Department of Public Health" for "Department of Community Health" in the first sentence of subsection (c).

The 2014 amendment, effective April 16, 2014, in subsection (b), substituted "community service board areas as a single community service board area." for "contiguous community service board areas as a single community service board area upon the request of the community service boards serving such areas; and, if so authorized" in the third sentence, added the fourth sentence, and added "If the department, with the approval of the commissioner, authorizes the redesig- nation or merging of community services board areas pursuant to this paragraph" at the beginning of the fifth sentence; and in subsection (c), deleted "or conflict with any districts established by the Department of Public Health and the state relating to the planning for, or delivery of, health services" at the end of the first sentence.

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which amends this Code section, provides, in § 19.1, not codified by the General Assembly, that the amendment is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed the 1993 amendment to this Code section.

Ga. L. 2006, p. 310, § 10/HB 1223, not codified by the General Assembly, provides that: "Nothing in this Act shall be construed to affect or abate any right accrued or vested prior to July 1, 2006, or any action or proceeding commenced prior to July 1, 2006, under any law amended or repealed by this Act."

Ga. L. 2006, p. 310, § 11/HB 1223, not codified by the General Assembly, provides that those provisions of that Act which authorize community service boards to amend their bylaws and authorize county governing authorities to appoint no sooner than May 1, 2006, any community service board members to take office on July 1, 2006, shall become effective April 21, 2006.

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011).

37-2-4. Behavioral Health Coordinating Council; membership; meetings; obligations.

  1. There is created the Behavioral Health Coordinating Council. The council shall consist of the commissioner of behavioral health and developmental disabilities; the commissioner of community health; the commissioner of public health; the commissioner of human services; the commissioner of juvenile justice; the commissioner of corrections; the commissioner of community supervision; the commissioner of community affairs; the Commissioner of Labor; the State School Superintendent; the chairperson of the State Board of Pardons and Paroles; two members, appointed by the Governor; the ombudsman appointed pursuant to Code Section 37-2-32; an adult consumer of public behavioral health services, appointed by the Governor; a family member of a consumer of public behavioral health services, appointed by the Governor; a parent of a child receiving public behavioral health services, appointed by the Governor; a member of the House of Representatives, appointed by the Speaker of the House of Representatives; and a member of the Senate, appointed by the Lieutenant Governor.
  2. The commissioner of behavioral health and developmental disabilities shall be the chairperson of the council. A vice chairperson and a secretary shall be selected by the members of the council as prescribed in the council's bylaws.
  3. Meetings of the council shall be held quarterly, or more frequently, on the call of the chairperson. Meetings of the council shall be held with no less than five days' public notice for regular meetings and with such notice as the bylaws may prescribe for special meetings. Each member shall be given written notice of all meetings. All meetings of the council shall be subject to the provisions of Chapter 14 of Title 50. Minutes or transcripts shall be kept of all meetings of the council and shall include a record of the votes of each member, specifying the yea or nay vote or absence of each member, on all questions and matters coming before the council. No member may abstain from a vote other than for reasons constituting disqualification to the satisfaction of a majority of a quorum of the council on a recorded vote. No member of the council shall be represented by a delegate or agent.
  4. Except as otherwise provided in this Code section, a majority of the members of the council then in office shall constitute a quorum for the transaction of business. No vacancy on the council shall impair the right of the quorum to exercise the powers and perform the duties of the council. The vote of a majority of the members of the council present at the time of the vote, if a quorum is present at such time, shall be the act of the council unless the vote of a greater number is required by law or by the bylaws of the council.
  5. The council shall:
    1. Develop solutions to the systemic barriers or problems to the delivery of behavioral health services by making recommendations that implement funding, policy changes, practice changes, and evaluation of specific goals designed to improve services delivery and outcome for individuals served by the various departments;
    2. Focus on specific goals designed to resolve issues for provision of behavioral health services that negatively impact individuals serviced by at least two departments;
    3. Monitor and evaluate the implementation of established goals; and
    4. Establish common outcome measures.
    1. The council may consult with various entities, including state agencies, councils, and advisory committees and other advisory groups as deemed appropriate by the council.
    2. All state departments, agencies, boards, bureaus, commissions, and authorities are authorized and required to make available to the council access to records or data which are available in electronic format or, if electronic format is unavailable, in whatever format is available. The judicial and legislative branches are authorized to likewise provide such access to the council.
  6. The council shall be attached to the Department of Behavioral Health and Developmental Disabilities for administrative purposes only as provided by Code Section 50-4-3.
    1. The council shall submit annual reports no later than October 1 of its recommendations and evaluation of its implementation to the Office of Health Strategy and Coordination.
    2. The recommendations developed by the council shall be presented to the board of each member department for approval or review at least annually.
  7. For purposes of this Code section, the term "behavioral health services" has the same meaning as "disability services" as defined in Code Section 37-1-1.

(Code 1933, § 88-611, enacted by Ga. L. 1976, p. 953, § 1; Ga. L. 1982, p. 3, § 37; Ga. L. 1986, p. 1213, § 1; Ga. L. 1993, p. 1445, § 16; Ga. L. 2002, p. 1324, § 1-7; Ga. L. 2009, p. 453, § 3-1/HB 228; Ga. L. 2010, p. 286, § 6/SB 244; Ga. L. 2011, p. 705, § 5-21/HB 214; Ga. L. 2015, p. 422, § 5-58/HB 310; Ga. L. 2015, p. 617, § 1/HB 288; Ga. L. 2019, p. 148, § 2-17/HB 186.)

The 2010 amendment, effective July 1, 2010, inserted "the commissioner of community affairs; the Commissioner of Labor; the State School Superintendent; the chairperson of the State Board of Pardons and Paroles; the ombudsman appointed pursuant to Code Section 37-2-32;" in the middle of subsection (a).

The 2011 amendment, effective July 1, 2011, inserted "the commissioner of public health;" near the middle of subsection (a).

The 2015 amendments. The first 2015 amendment, effective July 1, 2015, inserted "the commissioner of community supervision;" in the second sentence of subsection (a). See Editor's notes for applicability. The second 2015 amendment, effective July 1, 2015, inserted "two members, appointed by the Governor;" in the second sentence of subsection (a).

The 2019 amendment, effective July 1, 2019, in paragraph (h)(1), inserted "no later than October 1" and substituted "its implementation to the Office of Health Strategy and Coordination" for "their implementation to the Governor and the General Assembly" at the end.

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which amends this Code section, provides, in § 19.1, not codified by the General Assembly, that the amendment is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed the 1993 amendment to this Code section.

Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides: "This Act shall become effective July 1, 2015, and shall apply to sentences entered on or after such date."

Ga. L. 2019, p. 148, § 2-1/HB 186, not codified by the General Assembly, provides: "This part shall be known and may be cited as 'The Health Act.'"

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011). For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 231 (2015). For annual survey of administrative law, see 67 Mercer L. Rev. 1 (2015).

37-2-4.1. Local mental health, developmental disabilities, and addictive diseases offices; regional mental health, developmental disabilities, and addictive disease advisory councils.

  1. The department may create local mental health, developmental disabilities, and addictive diseases offices. The number of these offices may be modified from time to time as deemed necessary by the department.
  2. The department shall create a separate regional mental health, developmental disabilities, and addictive diseases advisory council for each region of the department as established under Code Section 37-2-3. Each regional advisory council may provide recommendations for the coordinated and comprehensive planning for its region in conformity with minimum standards and procedures established by the department.
  3. The powers, functions, obligations, and duties of the regional mental health, mental retardation, and substance abuse boards as they existed on June 30, 2002, are transferred to the department. The department shall succeed to all rights, privileges, entitlements, contracts, leases, agreements, and other transactions of the regional boards which were in effect on June 30, 2002, and none of those rights, privileges, entitlements, contracts, leases, agreements, and other transactions shall be impaired or diminished by reason of such transfer. In all such instances, the department shall be substituted for such regional board and the department shall succeed to the rights and duties under such contracts, leases, agreements, and other transactions.

(Code 1981, §37-2-4.1, enacted by Ga. L. 1986, p. 1213, § 1; Ga. L. 1993, p. 1445, § 16; Ga. L. 2002, p. 1324, § 1-7; Ga. L. 2009, p. 453, § 3-1/HB 228; Ga. L. 2015, p. 1361, § 2/HB 512.)

The 2015 amendment, effective July 1, 2015, substituted "department may create local" for "department shall create regional" in the first sentence of subsection (a); and substituted the present provisions of subsection (b) for the former provisions, which read: "The department shall create a separate regional mental health, developmental disabilities, and addictive diseases planning board for each regional office established under subsection (a) of this Code section. Each board shall provide and facilitate coordinated and comprehensive planning for its region in conformity with minimum standards and procedures established by the department. Each board shall be designated with such identifying words before the term 'regional mental health, developmental disabilities, and addictive diseases planning board' as that regional planning board may, from time to time, choose and designate by official action."

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which amends this Code section, provides, in § 19.1, not codified by the General Assembly, that the amendment is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed the 1993 amendment to this Code section.

37-2-5. Regional advisory councils - Establishing policy and direction for disability services; membership; bylaws; meetings; expenses.

  1. Each regional advisory council shall engage in disability services planning within its region and may perform other functions as may be provided or authorized by law, such as:
    1. Informing the department of local needs and priorities;
    2. Organizing natural supports;
    3. Recommending community improvements;
    4. Providing input to the department regarding the local perspective of consumers, families, and community stakeholders; and
    5. Encouraging prevention programs.
  2. Membership on the regional advisory council within an established region shall be determined as follows:
    1. Each county with a population of 50,000 or less according to the United States decennial census of 1990 or any future such census shall appoint one member to the council;
    2. Each county with a population of more than 50,000 according to the United States decennial census of 1990 or any future such census shall appoint one member for each population increment of 50,000 or any portion thereof;
    3. The appointment or appointments for each county shall be made by the county governing authority; and
    4. The county governing authority shall appoint a consumer of disability services, a family member of a consumer, an advocate for disability services, or a local leader or business person with an interest in mental health, developmental disabilities, and addictive diseases; provided, however, that for counties with more than one appointment, the county governing authority shall seek to ensure that such appointments represent various groups and disability services.
      1. A member of the community service board which serves that region;
      2. An employee or board member of a private or public entity which contracts with the department, the Department of Human Services, or the Department of Public Health to provide health, mental health, developmental disabilities, or addictive diseases services within the region;
      3. An employee of such local office or employee or board member of any private or public group, organization, or service provider which contracts with or receives funds from such local office; or
      4. An employee or board member of the department, the Department of Human Services, or the Department of Public Health.

        A person shall not be eligible to be appointed to or serve on a regional advisory council if such person's spouse, parent, child, or sibling is a member of that regional advisory council or a member, employee, or board member specified in paragraph (1) of this subsection. No person who has served a full term or more on a regional advisory council or regional planning board may be appointed to a community service board until a period of at least two years has passed since the time such person served on the regional advisory council or the regional planning board. No person who has served on a regional planning board and who becomes a member of a regional advisory council after June 30, 2015, may be appointed to a community service board until a period of at least two years has passed since the time such person has served on the regional planning board or regional advisory council.

  3. In making appointments to the regional advisory council, the various county governing authorities shall consider the cultural and social characteristics, including gender, race, ethnic, and age characteristics, of the regional and county populations. The county governing authorities are further encouraged to ensure that each disability group is viably represented on the regional advisory council, and in so doing the county governing authority may consider suggestions for appointments from clinical professional associations as well as advocacy groups, including but not limited to the Georgia Mental Health Consumer Network, People First of Georgia, the Georgia Parent Support Network, National Alliance for the Mentally Ill Georgia, the American Association for Retired Persons, Georgians for Children, Mental Health America of Georgia, Georgia ARC Network, and the Georgia Council on Substance Abuse and their local chapters and affiliates.
  4. The initial term of a new member of a regional advisory council shall be determined by the commissioner in order to establish staggered terms on the council. At such time as the terms of the members of the council are equally staggered, the term of a member of the regional advisory council shall be for a period of three years and until the member's successor is appointed and qualified. A member may serve no more than two consecutive terms. The term of a regional advisory council member shall terminate upon resignation, death, or inability to serve due to medical infirmity or other incapacity or such other reasonable condition as the regional advisory council may impose under its bylaws. Vacancies on the regional advisory council shall be filled in the same manner as the original appointment.
  5. Prior to August 1, 2015, each regional advisory council shall adopt bylaws governing its operation and management. At a minimum, the bylaws shall provide for staggered terms of the council, requirements for an annual meeting to elect officers, a mechanism for ensuring that consumers of disability services and family members of consumers constitute a majority of the appointments to the council, and a mechanism for ensuring that each disability service is equitably represented by appointments to the council. Any council member who serves an initial term of less than three years may be eligible to be reappointed for two full consecutive three-year terms. The chairperson and vice chairperson of the regional advisory council shall be elected from among the members of the council to serve a term of one year with the option of reelection for an additional one-year term. The bylaws shall provide for any other officers and their means of selection, as well as any necessary committees or subcommittees of the council. Prior to their adoption by the regional advisory council, the bylaws shall be submitted to the department for review and approval. The regional advisory council must have the written approval of the commissioner prior to the adoption of bylaws.
  6. The regional advisory council shall meet not less than once every four months, beginning on July 1 and continuing through the next June 30, which time frame shall be the fiscal year for each regional advisory council.
  7. Each member of the regional advisory council may, upon approval of the department, receive reimbursement for actual expenses incurred in carrying out the duties of such office in conformance with rates and allowances set for state employees by the Office of Planning and Budget and the same mileage allowance for use of a personal car as that received by all other state officials and employees or a travel allowance of actual transportation cost if traveling by public carrier.
  8. Each regional advisory council which is composed of members who are appointed thereto by the governing authority of only one county shall have a minimum of six members, notwithstanding the provisions of subsection (b) of this Code section, which members shall in all other respects be appointed as provided in this Code section.

(b.1)A county governing authority may appoint the school superintendent, a member of the county board of health, a member of the local board of education, or any other elected or appointed official to serve on the regional advisory council, provided that such person meets the qualifications of paragraph (4) of subsection (b) of this Code section, such person does not serve on a community service board, and such appointment does not violate the provisions of Chapter 10 of Title 45.

(b.2) (1)A person shall not be eligible to be appointed to or serve on a regional advisory council if such person is:

(Code 1933, §§ 88-605, 88-606, enacted by Ga. L. 1976, p. 953, § 1; Ga. L. 1986, p. 1213, § 1; Ga. L. 1993, p. 1445, § 16; Ga. L. 1994, p. 437, § 2; Ga. L. 2000, p. 440, § 2; Ga. L. 2002, p. 1324, § 1-7; Ga. L. 2009, p. 453, § 3-1/HB 228; Ga. L. 2011, p. 705, § 6-3/HB 214; Ga. L. 2015, p. 1361, § 3/HB 512.)

The 2011 amendment, effective July 1, 2011, substituted "Department of Public Health" for "Department of Community Health" in subparagraphs (b.2)(1)(B) and (b.2)(1)(D).

The 2015 amendment, effective July 1, 2015, substituted "regional advisory council" for "regional planning board" and substituted "council" for "board" throughout; substituted the present provisions of subsection (a) for the former provisions, which read: "Each regional planning board shall engage in disability services planning including job supports and housing within its region and shall perform such other functions as may be provided or authorized by law."; deleted "or" at the end of subparagraph (b.2)(1)(A); in subparagraph (b.2)(1)(C), substituted "local office" for "regional office" in two places; in paragraph (b.2)(2), substituted "regional advisory council" for "regional board" in the second sentence, in the third sentence, inserted "planning" preceding "board" near the beginning, substituted "after June 30, 2015" for "on June 30, 2002" in the middle, and added "or regional advisory council" at the end; substituted "shall consider" for "shall ensure that appointments are reflective of" in the first sentence of subsection (c); deleted former paragraph (d)(1), which read: "In addition, members of the regional mental health, mental retardation, and substance abuse boards in office on June 30, 2002, shall become members of the regional planning board for the area in which they reside on July 1, 2002, and shall serve out the balance of their terms."; redesignated former paragraph (d)(2) as present subsection (d); substituted "2015" for "2002" in the first sentence of subsection (e); substituted "four months" for "two months" in subsection (f); and substituted "the department" for "the regional coordinator" in subsection (g).

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which amends this Code section, provides, in § 19.1, not codified by the General Assembly, that the amendment is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed the 1993 amendment to this Code section.

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011).

JUDICIAL DECISIONS

Property interest of participants in supportive living program.

- Rules and regulations of state and local supportive living program give participants in the program a property interest subject to due process including an evidentiary hearing prior to termination from the program. Fields v. Pittman, 571 F. Supp. 32 (N.D. Ga. 1983).

37-2-5.1. Allocation of funds.

  1. State, federal, and other funds appropriated to the department and available for the purpose of funding the planning and delivery of disability services shall be distributed in accordance with this subsection. All funds associated with services to clients residing within a given region shall be managed through the department; the term "all funds" shall include funding for hospitals, community service boards, private and public contracts, and any contracts relating to service delivery for clients within the given region. The department shall establish a funding amount for regions conditioned upon the amount of funds appropriated. The funding amount shall be determined, in part, based on consumer service needs, service and program history, population based funding needs, infrastructure mandates, program efficiency and effectiveness, geographic distances, and other factors affecting the cost and level of service needs within each region.
  2. The department shall establish guidelines to ensure that regions receive such funding based on client population, past and future service delivery needs and capabilities, and in consideration of special needs populations, such as homeless and transient populations. The department shall ensure that funds are managed based primarily on services to clients and in compliance with all federal, state, and regulatory requirements.
  3. The department, in compliance with the provisions of the General Appropriations Act and other applicable laws, is authorized to move funds to and between community and institutional programs based on need, and the department shall develop appropriate allocation and accounting mechanisms to move funds in a planned and rational manner between hospitals, community service boards, and other providers based on client needs and utilization.

(Code 1981, §37-2-5.1, enacted by Ga. L. 1993, p. 1445, § 16; Ga. L. 1994, p. 437, § 3; Ga. L. 2002, p. 1324, § 1-7; Ga. L. 2009, p. 453, § 3-1/HB 228; Ga. L. 2015, p. 1361, § 4/HB 512.)

The 2015 amendment, effective July 1, 2015, deleted former subsection (a), which read: "Each region shall be served by a regional coordinator who shall be duly qualified and appointed by the commissioner. The regional coordinator shall serve as the supervisor of the regional office, which shall be a unit of the department. The regional coordinator shall serve at the pleasure of the commissioner. The commissioner shall be authorized to appoint an interim regional coordinator at any time that the position of regional coordinator is vacant and prior to the appointment of a duly qualified and approved successor."; deleted former subsection (b), which read: "The regional coordinator may appoint such other staff including a regional services administrator and personnel to work for the regional office as the department deems necessary and appropriate. The regional coordinator and such staff and personnel shall be employees of the department. Expenses for the regional office and planning board, the employment of the regional coordinator, other staff and personnel, and the operation of the regional office shall be funded by the department as funds are appropriated by the General Assembly. The department shall impose limits on the administrative and operating expenditures of the regional office and planning board."; and redesignated former subsection (c) as present subsections (a) through (c).

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which enacts this Code section, provides, in § 19.1, not codified by the General Assembly, that this Code section is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed this Code section.

OPINIONS OF THE ATTORNEY GENERAL

Hiring and firing executive director.

- Executive director (now regional coordinator) of a regional board may be hired by the state division director only with the approval of the regional board, and may be fired by the state division director, either on the division director's own initiative or in compliance with the request of a majority of the regional board membership. 1995 Op. Att'y Gen. No. U95-3.

37-2-5.2. Local offices - Duties, functions, and powers.

Under the supervision of the department, each local office shall have the following duties and functions:

  1. To receive and administer gifts, moneys, and donations for purposes pertaining to mental health, developmental disability, and addictive disease services;
  2. To encourage the development, in cooperation with the department, of private and public providers of programs and disability services which respond to the needs of consumers and families of consumers within the region;
  3. To serve as the representative of the citizens of the area in regard to disability services;
  4. To receive and consider complaints and grievances submitted by individuals, associations, or agencies involved with the delivery or receipt of disability services and, if deemed appropriate, to seek resolution in coordination with the department, through processes which may include impartial mediation and alternative dispute resolution, of such complaints and grievances with the appropriate hospital, community service board, or other private or public provider of service;
  5. To assure the highest achievable level of public awareness and understanding of both available and needed disability services;
  6. To visit regularly disability services facilities and programs which serve the region in order to assure contracted providers are licensed and accredited by the designated agencies prescribed by the department, and in order to evaluate the effectiveness and appropriateness of the services, as such services relate to the health, safety, and welfare of service recipients, and to provide technical assistance to programs in delivering services; and
  7. To participate with other local offices and planning boards, the department, local, state, or federal government agencies, educational institutions, and public and private organizations in the coordination of planning, research, service development, and evaluation activities:
    1. To work cooperatively with all units of county and local government, including the county boards of health, within the region; and
    2. To establish goals and objectives, not inconsistent with those established by the department, for its region.

(Code 1981, §37-2-5.2, enacted by Ga. L. 1993, p. 1445, § 16; Ga. L. 2002, p. 1324, § 1-7; Ga. L. 2009, p. 453, § 3-1/HB 228; Ga. L. 2010, p. 286, § 7/SB 244; Ga. L. 2010, p. 878, § 37/HB 1387; Ga. L. 2015, p. 1361, § 5/HB 512.)

The 2010 amendments. The first 2010 amendment, effective July 1, 2010, in paragraph (a)(1), substituted "identifying the needs and priorities for" for "for the funding and provisions of all" in the first sentence and substituted "informs" for "is a basis for" near the end of the last sentence. The second 2010 amendment, effective June 3, 2010, part of an Act to revise, modernize, and correct the Code, revised language in paragraph (a)(8).

The 2015 amendment, effective July 1, 2015, deleted the subsection (a) designation; substituted "local office" for "regional office" in the introductory paragraph; deleted former paragraph (a)(1), which read: "To prepare, in consultation with consumers and families, community programs, hospitals, other public and private providers, its regional planning board, and appropriate advisory and advocacy groups, an annual plan identifying the needs and priorities for disability services in the region. The plan shall be submitted to the department at a time and in the manner specified by the department so as to ensure that the plan informs the annual appropriations request; deleted former paragraph (a)(2), which read: "To provide, as funds become available, for consumer assessment and service authorization and coordination for each consumer receiving services within the region;"; deleted former paragraph (a)(3), which read: "To exercise responsibility and authority as specified in this chapter within the region in all matters relating to the funding and delivery of disability services;"; redesignated former paragraph (a)(4) as present paragraph (1), and, in paragraph (1), deleted "grants," preceding "gifts"; deleted paragraph (a)(5), which read: "To enter into contracts on behalf of the department with any hospital, community service board, or other public or private providers without regard to regional or state boundaries for the provision of disability services, and to enter into all contracts on behalf of the department necessary or incidental to the performance of duties and functions of the department and regional office;"; redesignated former paragraphs (a)(6) through (a)(11) as present paragraphs (2) through (7); inserted "in coordination with the department" near the middle of paragraph (4); substituted "local offices" for "regional offices" near the beginning of the introductory paragraph (7); added "and" at the end of subparagraph (7)(A); substituted a period for "; and" at the end of subparagraph (7)(B); deleted former subparagraph (a)(11)(C), which read: "To participate in the establishment and operation of a data base and network, coordinated by the department, to serve as a comprehensive management information system for disability services and programs."; deleted former subsection (b), which read: "It is the express intent of this chapter to confer upon the regional offices as the administrative entities of the department the flexibility, responsibility, and authority necessary to enter into contracts on behalf of the department with a wide range of public and private providers to ensure that consumers are afforded cost-effective, locally based, and quality disability services. Under the supervision of the department, regional offices are specifically authorized to enter into contracts on behalf of the department directly with any county governing authority, any disability services organization created or designated by such county governing authority, any county board of health, any private or public provider, or any hospital for the provision of disability services."; and deleted former subsection (c), which read: "Each regional office shall account for all funds received, expended, and administered and shall make reports to the department regarding the funds received from the department. The audit of such activity shall be part of the annual audit of the department."

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which enacts this Code section, provides, in § 19.1, not codified by the General Assembly, that this Code section is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed this Code section.

37-2-6. Community mental health, developmental disabilities, and addictive diseases service boards - Community service board creation; membership; participation of counties; transfer of powers and duties; alternate method of establishment; bylaws; reprisals prohibited.

  1. Community service boards in existence on June 30, 2014, are re-created effective July 1, 2014, to provide mental health, developmental disabilities, and addictive diseases services. Such community service boards may enroll and contract with the department, the Department of Human Services, the Department of Public Health, or the Department of Community Health to become a provider of mental health, developmental disabilities, and addictive diseases services or health, recovery, housing, or other supportive services. Such boards shall be considered public agencies. Each community service board shall be a public corporation and an instrumentality of the state; provided, however, that the liabilities, debts, and obligations of a community service board shall not constitute liabilities, debts, or obligations of the state or any county or municipal corporation and neither the state nor any county or municipal corporation shall be liable for any liability, debt, or obligation of a community service board. Each community service board re-created pursuant to this Code section is created for nonprofit and public purposes to exercise essential governmental functions. The re-creation of community service boards pursuant to this Code section shall not alter the provisions of Code Section 37-2-6.2 which shall apply to those re-created community service boards and their employees covered by that Code section and those employees' rights are retained.
  2. The governing board of each community service board shall consist of members appointed by the governing authorities of the counties within the community service board area. Membership on such governing board shall be determined as follows:
      1. The governing authority of each county within the community service board area:
        1. With a population of 50,000 or less according to the most recent United States decennial census shall appoint one member to such governing board; and
        2. With a population of more than 50,000 according to the most recent United States decennial census shall appoint one member for each population increment of 50,000 or any portion thereof; or
      2. In the event that the number of governing board member positions established in accordance with subparagraph (A) of this paragraph would exceed nine, the membership of such governing board pursuant to this subsection shall be appointed as follows and the bylaws shall be amended accordingly:
        1. For community service boards whose community service board area contains nine or fewer counties, the membership of the board shall be set at nine members and appointments to the board shall be made by the governing authority of each county within the community service board area in descending order from the county with the largest population to the county with the smallest population according to the most recent United States decennial census and this method shall be repeated until all nine members of the governing board of the community service board are appointed. If a county governing authority fails to make an appointment within a reasonable time, the next descending county by population shall make an appointment and the method shall continue; and
        2. For community service boards whose community service board area contains more than nine counties, one member of the governing board of the community service board shall be appointed by the governing authority of each county within the community service board area, so that the number of members on the governing board is equal to the number of counties in the community service board area.

        The county governing authority shall appoint as at least one of its appointments a consumer of disability services; a psychiatrist, a psychologist, or other behavioral health or development disabilities professional; a law enforcement officer; a family member of a consumer; an advocate for disability services; a parent of a child with mental illness or addictive disease; or a local leader or businessperson with an interest in mental health, developmental disabilities, and addictive diseases; provided, however, that for counties with more than one appointment, the county governing authority shall seek to ensure that such appointments represent various groups and disability services;

    1. In addition to the members appointed pursuant to paragraph (1) of this subsection, the governing board of each community service board may appoint one additional member in order to address variation in the population sizes of counties or the financial contributions of counties within the community service board area. The bylaws of the community service board shall address the establishment of the additional governing board membership position, if established, and the purpose or purposes for which such position is created. The term of office of such additional member shall be the same as that of other members of the governing board of the community service board as provided in subsection (h) of this Code section;
    2. In addition to the members appointed pursuant to paragraphs (1) and (2) of this subsection, each governing board of a community service board shall have additional members who shall serve on such governing board while concurrently holding elective or appointive office and who shall be appointed by a county governing authority as follows:
      1. The number of elected or appointed officials serving on the governing board of a community service board shall be equal to one-third, defined herein as 33 percent or 0.33, of the number of the members of such board appointed in accordance with paragraph (1) of this subsection. In the event the calculation of such percentage yields a whole number and a fraction of a whole number, then the number of members to be appointed shall be equal to the nearest whole number; however, a fraction equal to 50 percent or greater shall be rounded to the next highest whole number;
      2. The governing authority of each county in the community service board area making the largest cash or in-kind financial contribution in descending order to the community service board in the county fiscal year immediately prior to the time of such appointment shall make one appointment of an elected or appointed official to the community service board until the number of such appointments required by this paragraph is reached. For community service boards whose community service board areas contains fewer counties than the number of appointments made pursuant to this paragraph, the membership appointments of elected or appointed officials to the governing board shall be made in the descending order prescribed in this paragraph and this method shall be repeated until all members who hold elective or appointive office are appointed to the governing board of the community service board. In the event that the number of such county governing authorities making a cash or in-kind financial contribution to the community service board does not result in the number of appointments required by this paragraph, the remaining appointment or appointments shall be made by the governing authority or authorities of the county or counties in the community service board area with the largest population in descending order according to the most recent United States decennial census until the number of appointments required by this paragraph is reached. For community service boards whose community service board area contains three or fewer counties, the membership appointments of elected or appointed officials to the governing board shall be made in the descending order prescribed in this paragraph and this method shall be repeated until all members who hold elective or appointive office are appointed to the governing board of the community service board. In the event there is no county in the community service board area where the governing authority made a cash or in-kind financial contribution to the community service board in the county fiscal year immediately prior to the time of such appointment, the appointments required by this paragraph shall be made by the governing authority or authorities of the county or counties in the community service board area with the largest population in descending order according to the most recent United States decennial census until the number of appointments required by this paragraph is reached;
      3. As used in this paragraph, the term "elective or appointive office" or "elected or appointed official" means:
        1. The elected chief executive officer, by whatever name called, of the county governing authority making the appointment to the governing board of the community service board;
        2. An elected member of such county governing authority;
        3. The county manager of such county governing authority where such position exists as defined in Code Section 36-5-22;
        4. The sheriff of such county;
        5. The elected chief executive officer, by whatever named called, an elected member of the governing authority, or an appointed city manager of any municipality lying wholly or partially within such county;
        6. A member of the board of education of such county or a member of the governing board of any municipal school system lying wholly or partially within such county;
        7. The school superintendent of such county or the superintendent of any municipal school system lying wholly or partially within such county;
        8. The appointed public safety commissioner, police chief, or fire chief of such county or any municipality lying wholly or partially within such county; or
        9. Any other elected official from within such county;
      4. No member of the governing board of the community service board appointed pursuant to this paragraph shall continue to serve on the governing board if such member no longer holds the elective or appointive office which made him or her eligible for appointment to such board. The term of office of an elected official appointed to serve as a member of the governing board of a community service board shall be the same as such official's elective term of office. The term of office of an appointed official appointed to serve as a member of such governing board shall be the same as that of other members of such governing board; and
      5. As used in this paragraph, the term "in-kind financial contribution" means the most current dollar value of any physical facilities or buildings and equipment, including vehicles, of all kinds provided at no cost by the county governing authority for use by the community service board.
    3. Each community service board in existence on June 30, 2014, shall reconstitute the membership of its governing board in accordance with the provisions of paragraphs (2) and (3) of this subsection, effective July 1, 2014.

      A community service board which increases or reduces the number of its members of its governing board in accordance with paragraphs (2) and (3) of this subsection shall revise its bylaws adopted in accordance with subsection (h) of this Code section to reflect such increases or reductions. A community service board which reduces the number of members of its governing board shall designate which position or positions are to be eliminated and shall make reasonable efforts to eliminate any position or positions of governing board members whose terms expire on or before June 30, 2014; provided, however, that members serving on the governing board of a community service board whose terms do not expire on or before June 30, 2014, shall continue to serve out the terms of office to which they were appointed, regardless of whether this causes a governing board to temporarily exceed the maximum number of members. Any additional positions created in conformity with such paragraphs (2) and (3) may be filled on July 1, 2014, and the governing authority of a county that is otherwise authorized to appoint such additional member or members to the governing board of a community service board may do so no sooner than May 1, 2014, but any person so appointed shall not take office until July 1, 2014. If a position on such governing board of the community service board is not filled on July 1, 2014, a vacancy in that position shall be deemed to have occurred on that date. A governing board of the community service board is authorized to make whatever changes necessary in the terms of office of its members in order to achieve the staggering of terms required by subsection (h) of this Code section;

      1. A person shall not be eligible to be appointed to or serve on a governing board of a community service board if such person is:
        1. A member of the regional planning board which serves the region in which that community service board is located;
        2. An employee or board member of a public or private entity which contracts with the department to provide mental health, developmental disabilities, and addictive diseases services within the community service board area served by that community service board;
        3. An employee of that community service board or employee or board member of any private or public group, organization, or service provider which contracts with or receives funds from that community service board; or
        4. A former employee of that community service board until a period of at least two years has passed since the time such person was employed by that community service board.
      2. A person shall not be eligible to be appointed to or serve on a governing board of a community service board if such person's spouse, parent, child, or sibling is a member of that governing board or a member, employee, or board member specified in this paragraph. With respect to appointments by the same county governing authority, no person who has served a full term or more on a governing board of a community service board may be appointed to a regional planning board until a period of at least two years has passed since the time such person served on the governing board of a community service board, and no person who has served a full term or more on a regional planning board may be appointed to the governing board of a community service board until a period of at least two years has passed since the time such person has served on the regional planning board; and
    4. A governing board of a community service board created in accordance with this subsection shall reconstitute its governing board membership in conformity with the most recent United States decennial census in accordance with subparagraph (d)(2)(C) of Code Section 1-3-1.
  3. In making appointments to the governing board of a community service board, the county governing authorities shall ensure that such appointments are reflective of the cultural and social characteristics, including gender, race, ethnic, and age characteristics, of the community service board area and county populations. The county governing authorities are further encouraged to ensure that each disability group is represented on the governing board of the community service board, and in making such appointments the county governing authorities may consider suggestions from clinical professional associations as well as advocacy groups. For the purposes of this subsection, the term "advocacy groups" means any organizations or associations that advocate for, promote, or have an interest in disability services and are exempted as a charitable organization from federal income tax pursuant to Section 501(c) of the Internal Revenue Code; provided, however, that "advocacy groups" shall not mean paid providers of disability services or health services.
  4. Each county in which the governing authority of the county is authorized to appoint members to the governing board of the community service board shall participate with the board in the operation of the program through the community service board. All contractual obligations, including but not limited to real estate leases, rentals, and other property agreements, other duties, rights, and benefits of the mental health, developmental disabilities, and addictive diseases service areas in existence on June 30, 2014, shall continue to exist along with the new powers granted to the community service boards effective July 1, 2014.
  5. Notwithstanding any other provision of this chapter, a community service board may be constituted in a method other than that outlined in subsection (b) of this Code section if:
    1. A board of health of a county desiring to be the lead county board of health for that county submits a written agreement to the former Division of Mental Health, Developmental Disabilities, and Addictive Diseases (now known as the Department of Behavioral Health and Developmental Disabilities) of the former Department of Human Resources before July 1, 1993, to serve as the community service board and to continue providing disability services in that county after July 1, 1994, and the governing authority for that county adopted a resolution stating its desire to continue the provision of disability services through its board of health after July 1, 1994, and submitted a copy of such resolution to the former division before July 1, 1993; or
      1. The lead county board of health for a community mental health, mental retardation, and substance abuse service area, as designated by the former Division of Mental Health, Developmental Disabilities, and Addictive Diseases (now known as the Department of Behavioral Health and Developmental Disabilities) of the former Department of Human Resources on July 15, 1993, but which area excludes any county which meets the requirements of paragraph (1) of this subsection, submitted a written agreement to the former division and to all counties within such service area to serve as the community service board for that area and to continue providing disability services after July 1, 1994, which agreement was submitted between July 31, 1993, and December 31, 1993; and
      2. Each county governing authority which is within the service area of a lead county board of health which has submitted an agreement pursuant to subparagraph (A) of this paragraph adopted a resolution stating its desire to continue the provision of disability services through such lead county board of health after July 1, 1994, and submitted a copy of that resolution to the former division, the regional board, and the lead county board of health between July 31, 1993, and December 31, 1993; and
    2. The lead county board of health qualifying as such under paragraph (1) or (2) of this subsection agrees in writing to appoint a director for mental health, mental retardation, and substance abuse other than the director of the county board of health as stipulated in Code Section 31-3-12.1, to appoint an advisory council on mental health, mental retardation, and substance abuse consisting of consumers, families of consumers, and representatives from each of the counties within the boundaries of the community service board, and to comply with all other provisions relating to the delivery of disability services pursuant to this chapter.
  6. If the conditions enumerated in subsection (e) of this Code section are not met prior to or on December 31, 1993, a community service board as provided in subsection (b) shall be established and appointed by January 31, 1994, to govern the provision of disability services within the boundaries of the community service board. Such community service board shall have the authority to adopt bylaws and undertake organizational and contractual activities after January 31, 1994; provided, however, that the community service board established pursuant to this Code section may not begin providing services to clients until July 1, 1994.
  7. If a community service board is established pursuant to paragraph (2) of subsection (e) of this Code section, such community service board must operate as established at least until June 30, 1996; provided, however, that in each fiscal year following June 30, 1996, the counties included under the jurisdiction of such a community service board may vote to reconstitute the community service board pursuant to the provisions of subsection (b) of this Code section by passage of a resolution by a majority of the county governing authorities within the jurisdiction of the community service board prior to January 1, 1997, or each year thereafter.
  8. The governing board of each community service board shall adopt bylaws and operational policies and guidelines in conformity with the provisions of this chapter. Those bylaws shall address governing board appointment procedures, initial terms of governing board members, the staggering of terms, quorum, a mechanism for ensuring that consumers of disability services and family members of consumers constitute no less than 50 percent of the governing board members appointed pursuant to paragraphs (1) and (2) of subsection (b) of this Code section, and a mechanism for ensuring equitable representation of the various disability groups. A quorum for the transaction of any business and for the exercise of any power or function of the governing board of the community service board shall consist of a majority of the total number of filled governing board member positions appointed pursuant to subsection (b) of this Code section. A vote of the majority of such quorum shall be the act of the governing board of the community service board except where the bylaws of the community service board may require a greater vote. The regular term of office for each member of the governing board of a community service board shall be three years. Vacancies on such governing board shall be filled in the same manner as the original appointment. For purposes of this subsection, "equitable representation of the various disability groups" means that consumers and family members of such consumers who constitute no less than 50 percent of the governing board members holding membership pursuant to paragraphs (1) and (2) of subsection (b) of this Code section shall be appointed so as to assure that an equal number of such members to the fullest extent possible represents mental health, developmental disabilities, and addictive diseases interests.
  9. The governing board of each community service board which is composed of members who are appointed thereto by the governing authority of only one county shall have a minimum of seven and no more than nine members, not including any additional members appointed pursuant to paragraphs (2) and (3) of subsection (b) of this Code section, notwithstanding the provisions of subsection (b) of this Code section, which members in all other respects shall be appointed as provided in this Code section.
  10. No governing board member, officer, or employee of a community service board who has authority to take, direct others to take, recommend, or approve any personnel action shall take or threaten action against any employee of a community service board as a reprisal for making a complaint or disclosing information concerning the possible existence of any activity constituting fraud, waste, or abuse in or relating to the programs, operations, or client services of the community service board, to the governing board of the community service board, to a member of the General Assembly, or to the department unless the complaint was made or the information was disclosed with the knowledge that it was false or with willful disregard for its truth or falsity. Any action taken in violation of this subsection shall give the public employee a right to have such action set aside in a proceeding instituted in the superior court.
  11. A member of a governing board of a community service board who after notice that such member has failed to complete any required training prescribed by the department pursuant to paragraph (6) of Code Section 37-1-20 continues such failure for 30 days may be removed from office by the remaining members of the governing board of the community service board.
  12. A member of a governing board of a community service board may resign from office by giving written notice to the executive director of the community service board. The resignation is irrevocable after delivery to such executive director but shall become effective upon the date on which the notice is received or on the effective date given by the member in the notice, whichever date is later. The executive director, upon receipt of the resignation, shall give notice of the resignation to the remaining members of the governing board of the community service board and to the chief executive officer or governing authority of the county that appointed the member.
  13. The office of a member of a governing board of a community service board shall be vacated upon such member's resignation, death, or inability to serve due to medical infirmity or other incapacity, removal by the community service board as authorized in this Code section, or upon such other reasonable condition as the community service board may impose under its bylaws.
  14. Each member of the governing board of a community service board shall comply with the code of ethics for members of boards, commissions, and authorities as set forth in Code Section 45-10-3. A governing board member who fails to comply with such code may be subject to removal from office by the remaining members of the governing board of the community service board or by the commissioner as authorized in Code Section 37-2-10. The governing board of the community service board shall revise the bylaws of the community service board adopted in accordance with subsection (h) of this Code section to reflect the requirements of this subsection.
  15. A member of the governing board of a community service board shall have a fiduciary responsibility to avoid any conflict of interest in a manner that is consistent with the declarations found in Code Section 45-10-2. When such governing board is to decide an issue about which a member has an unavoidable conflict of interest, such member shall absent herself or himself from not only the vote, but also from any deliberation on such issue. Members of the governing board of a community service board shall not use their positions to obtain employment with or contracts from the community service board, its funding sources, or its suppliers of goods and services for themselves, family members, or close associates. Should such member desire such employment, such member shall first resign. No person who has served as a member of the governing board of a community service board may be employed by that community service board, either directly or by contract, until a period of at least two years has passed since the time such person served as a member of the governing board of that community service board. A governing board member or a member of the governing board member's family may obtain disability or health services from the community service board in the ordinary course of the community service board's provision of such disability or health services on the same terms and under the same conditions applicable to any member of the public. An individual governing board member shall not exercise individual authority over the community service board's operations, affairs, property, or personnel, except when such member's action is explicitly permitted by action of the governing board of the community service board by policy or by resolution. The governing board of the community service board shall revise the bylaws of the community service board adopted in accordance with subsection (h) of this Code section to reflect the requirements of this subsection.

(b.1)A county governing authority may appoint a member of the county board of health to serve on the governing board of the community service board provided that such person meets the qualifications of paragraph (1) or (2) of subsection (b) of this Code section and such appointment does not violate the provisions of Chapter 10 of Title 45. For terms of office which begin July 1, 1994, or later, an employee of the Department of Human Resources (now known as the Department of Behavioral Health and Developmental Disabilities for these purposes) or an employee of a county board of health shall not serve on a governing board of a community service board. For terms of office which begin July 1, 2009, or later, an employee of the department, the Department of Human Services, the Department of Public Health, or the Department of Community Health or a board member of the respective boards of each department shall not serve on a governing board of a community service board.

(c.1)A county governing authority in making appointments to the governing board of a community service board shall take into consideration that at least one member of the governing board of a community service board is an individual who is trained or certified in finance or accounting; provided, however, that if after a reasonable effort at recruitment there is no person trained or certified in finance or accounting within the community service board area who is willing and able to serve, the county governing authority may consider for appointment any other person having a familiarity with financial or accounting practices.

(p) A member of a governing board of a community service board may not enter upon the duties of office until such member takes the following oath of office:

STATE OF GEORGIA COUNTY OF ____________ I, ________________________, do solemnly swear or affirm that I will truly perform the duties of a member of the governing board of the ________________________ Community Service Board to the best of my ability. I do further swear or affirm: (1) That I am not the holder of any unaccounted for public money due this state or any political subdivision or authority thereof; (2) That I am not the holder of any office of trust under the government of the United States, any other state, or any foreign state which I am by the laws of the State of Georgia prohibited from holding; (3) That I am otherwise qualified to hold said office according to the Constitution and the laws of Georgia; and (4) That I will support the Constitution of the United States and this state. ________________________ Signature of member of the governing board of the ________________________ Community Service Board ________________________ Typed name of member of the governing board of the ________________________ Community Service Board Sworn and subscribed before me this ______ day of ____________, ______. (SEAL)

(Code 1933, § 88-607, enacted by Ga. L. 1976, p. 953, § 1; Ga. L. 1986, p. 1213, § 1; Ga. L. 1993, p. 1445, § 16; Ga. L. 1994, p. 437, § 4; Ga. L. 1999, p. 860, § 1; Ga. L. 2002, p. 1324, §§ 1-7, 2-3; Ga. L. 2006, p. 310, § 5/HB 1223; Ga. L. 2009, p. 453, § 3-1/HB 228; Ga. L. 2010, p. 878, § 37/HB 1387; Ga. L. 2011, p. 705, § 5-22/HB 214; Ga. L. 2014, p. 309, § 4/SB 349; Ga. L. 2016, p. 864, § 37/HB 737.)

The 2010 amendment, effective June 3, 2010, part of an Act to revise, modernize, and correct the Code, substituted "provided, however, that" for "provided, however," in the fourth sentence of subsection (a) and in subsection (c.1).

The 2011 amendment, effective July 1, 2011, inserted "the Department of Public Health," in the second sentence of subsection (a), in division (b)(4)(A)(ii), and in the last sentence of subsection (b.1).

The 2014 amendment, effective April 16, 2014, rewrote this Code section.

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, in the last sentence of subsection (h), substituted "For purposes" for "For the purposes" and substituted "means" for "shall mean".

Cross references.

- Complaints or information from public employees as to fraud, waste, and abuse in state programs and operations, § 45-1-4.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2014, the second division (b)(3)(C)(vii), as added by Ga. L. 2014, p. 309, § 4/SB 349, was redesignated as division (b)(3)(C)(viii).

Editor's notes.

- Ga. L. 1993, p. 1445, which amends this Code section, provides, in § 19.1, not codified by the General Assembly, that the amendment is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed the 1993 amendment to this Code section.

Ga. L. 2006, p. 310, § 10/HB 1223, not codified by the General Assembly, provides that: "Nothing in this Act shall be construed to affect or abate any right accrued or vested prior to July 1, 2006, or any action or proceeding commenced prior to July 1, 2006, under any law amended or repealed by this Act."

Ga. L. 2006, p. 310, § 11/HB 1223, not codified by the General Assembly, provides that those provisions of that Act which authorize community service boards to amend their bylaws and authorize county governing authorities to appoint no sooner than May 1, 2006, any community service board members to take office on July 1, 2006, shall become effective April 21, 2006.

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011).

JUDICIAL DECISIONS

Sovereign immunity.

- Considering the public purpose for which the boards were created, a community service board is a "state department or agency" entitled to raise the defense of sovereign immunity under Ga. Const. 1983, Art. I, Sec. II, Par. IX. Youngblood v. Gwinnett Rockdale Newton Cmty. Serv. Bd., 273 Ga. 715, 545 S.E.2d 875 (2001).

Because community service boards are agencies or departments of the state, accordingly, the legislature acted unconstitutionally when the legislature ignored Ga. Const. 1983, Art. I, Sec. II, Par. IX(e) and the express terms of the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., by enacting O.C.G.A. § 37-2-11.1(c)(1) so as to denominate these newly-created state agencies or departments as unclassified public entities to be accorded the same immunity as counties. Youngblood v. Gwinnett Rockdale Newton Cmty. Serv. Bd., 273 Ga. 715, 545 S.E.2d 875 (2001).

Limited sovereign immunity waiver was subject to a specific exception for assault or battery, and in determining whether this exception applied, it was not necessary that the act have been committed by a state officer or employee. A community service board was a state agency and was immune from a claim arising from the stabbing death of a resident at a community home run by the board. Oconee Cmty. Serv. Bd. v. Holsey, 266 Ga. App. 385, 597 S.E.2d 489 (2004).

Community service board (CSB) was not entitled to Eleventh Amendment immunity against a former employee's Americans with Disabilities Act claims because: (1) for the purpose of litigation, the Georgia General Assembly in O.C.G.A. § 37-2-11.1(c)(1) defined a CSB as being akin to a county, which was not an arm of the state entitled to immunity; and (2) when it came to debt and liability, a CSB was autonomous pursuant to O.C.G.A. § 37-2-6(a); although other factors cut in favor of CSB entitlement to Eleventh Amendment immunity, including the state's exercise of some control over a CSB pursuant to O.C.G.A. § 37-2-10(b) and a CSB partial state funding, such factors were afforded less weight by the court. Johnson v. Ogeechee Behavioral Health Servs., 479 F. Supp. 2d 1357 (S.D. Ga. 2007).

Because O.C.G.A. § 37-2-11.1 stated community service boards (CSB) were not agencies of the state or any specific county and that the boards had the same immunity as counties and counties were not arms of the state and did not have Eleventh Amendment immunity, the defendant, a CSB former employer, was not entitled to Eleventh Amendment immunity on a plaintiff former employee's discrimination claim; it was noted that counties had significant control over the policy and decisions made by CSB in that counties appoint board members under O.C.G.A. § 37-2-6(b) and the counties served could allow CSB to privatize or join the county government under O.C.G.A. § 37-2-6.4(a), which was especially cogent, because it meant CSB, without state approval, could take itself outside of the state's control, and under O.C.G.A. § 37-2-6.5(a), CSB had to get county approval to dissolve. Peery v. Serenity Behavioral Health Sys., F. Supp. 2d (S.D. Ga. May 4, 2009).

Property interest of participants in supportive living program.

- Rules and regulations of state and local supportive living program give participants in the program a property interest subject to due process including an evidentiary hearing prior to termination from the program. Fields v. Pittman, 571 F. Supp. 32 (N.D. Ga. 1983).

37-2-6.1. Community service boards - Executive director, staff, budget, facilities; powers and duties; exemption from state and local taxation.

    1. The governing board of each community service board shall employ an executive director to serve as its chief executive officer and shall prescribe the duties thereof. The selection of the executive director and all terms of compensation shall be set by the governing board of each community service board and shall be subject to review and approval by the commissioner prior to any offer of employment or at any point thereafter where the terms of compensation are proposed to be substantially altered. Such contracts shall be reviewed by the commissioner every five years. Further, the commissioner shall be required to review and approve the selection of the executive director of each community service board for adherence to minimum qualifications for the position as prescribed by the department. The executive director shall direct the day-to-day operations of the community service board. Such executive director shall be appointed and removed by the community service board pursuant to this subsection and shall appoint other necessary staff pursuant to an annual budget adopted by the board, which budget shall provide for securing appropriate facilities, sites, and professionals necessary for the provision of disability and health services. Notwithstanding any other provision of law to the contrary, the governing board of the community service board may delegate any power, authority, duty, or function to its executive director or other staff. The executive director or other staff is authorized to exercise any power, authority, duty, or function on behalf of the governing board of the community service board.
    2. The executive director or any full-time or part-time employee of a community service board shall have a responsibility to avoid any conflict of interest in a manner that is consistent with the declarations found in Code Section 45-10-21. Such employees shall not transact any business with that community service board as prohibited in Code Section 45-10-23 unless any such transaction falls under the exceptions granted in Code Section 45-10-25. Transactions that fall under such exceptions shall be disclosed to the governing board of the community service board in the manner as such governing board shall determine and yearly to the Georgia Government Transparency and Campaign Finance Commission as prescribed in Code Section 45-10-26. The governing board of the community service board shall promulgate policies and procedures governing executive director and employee conflicts of interest and establish a code of ethics for the executive director and employees of the community service board.
  1. The governing board of each community service board or each community service board, under the jurisdiction of its governing board, shall perform duties, responsibilities, and functions and may exercise power and authority described in this subsection as follows:
    1. The governing board of each community service board shall adopt bylaws for the conduct of its affairs and the affairs of their respective community service boards; provided, however, that the governing board of a community service board shall meet at least quarterly, and that all such meetings and any bylaws shall be open to the public, as otherwise required under Georgia law;
    2. The governing board of each community service board shall be required to review and approve the annual budget of the community service board and shall be required to establish the general policies related to such budget to be followed by the community service board;
    3. Each community service board shall provide an adequate range of disability services as prescribed by the department;
    4. Each community service board may make and enter into all contracts necessary and incidental to the performance of its duties and functions;
    5. Each community service board may acquire by purchase, gift, lease, or otherwise and may own, hold, improve, use, and sell, convey, exchange, transfer, lease, sublease, and dispose of real and personal property of every kind and character, or any interest therein, for its corporate purposes;
    6. Each community service board may contract to utilize the services of the Department of Administrative Services, the state auditor, or any other agency of state, local, or federal government;
    7. Each community service board may provide, either independently or through contract with appropriate state or local governmental entities, the following benefits to its employees, their dependents, and survivors, in addition to any compensation or other benefits provided to such persons:
      1. Retirement, pension, disability, medical, and hospitalization benefits, through the purchase of insurance or otherwise, but medical and hospitalization benefits may only be provided through the Department of Community Health under the same conditions as provided for such benefits to state employees, and the Department of Community Health shall so provide if requested;
      2. Life insurance coverage and coverage under federal old age and survivors' insurance programs;
      3. Sick leave, annual leave, and holiday leave; and
      4. Any other similar benefits including, but not limited to, death benefits;
    8. Each community service board may cooperate with all units of local government in the counties where the community service board provides services as well as neighboring regions and with the programs of other departments, agencies, and regional commissions and regional planning boards;
    9. Each community service board shall establish and maintain a personnel program for its employees and fix the compensation and terms of compensation of its employees; provided, however, that each community service board shall comply with the provisions of Chapter 20 of Title 45, for so long as and to the extent that each employee of such board remains subject to the rules and regulations of the State Personnel Board or as otherwise provided by law;
    10. Each community service board may receive and administer grants, gifts, contracts, moneys, and donations for purposes pertaining to the delivery of disability services or of health services;
    11. Each community service board may establish fees for the provision of disability services or health services according to the terms of contracts entered into with the department, Department of Human Services, Department of Public Health, or Department of Community Health, as appropriate; provided, however, that all fees collected shall be used solely in accordance with the statutory nonprofit and public purposes of community service boards as prescribed in this article;
    12. Each community service board may accept appropriations, loans of funds, facilities, equipment, and supplies from local governmental entities in the counties where the community service board provides services;
    13. Each member of the governing board of a community service board may, upon approval of the executive director, receive reimbursement for actual expenses incurred in carrying out the duties of such office; provided, however, that such reimbursement shall not exceed the rates and allowances set for state employees by the Office of Planning and Budget or the mileage allowance for use of a personal car as that received by all other state officials and employees or a travel allowance of actual transportation cost if traveling by public carrier;
    14. The governing board of each community service board shall elect a chairperson and vice chairperson from among its membership. The governing board members shall also elect a secretary and treasurer from among its membership or may designate the executive director of the community service board to serve in one or both offices. Such officers shall serve for such terms as shall be prescribed in the bylaws of the community service board or until their respective successors are elected and qualified. No governing board member shall hold more than one office of the governing board of a community service board; except that the same person may serve as secretary and treasurer. The bylaws of the governing board of a community service board shall provide for any other officers of such board and the means of their selection, the terms of office of the officers, and an annual meeting to elect officers;
    15. Each community service board may have a seal and alter it;
    16. Each community service board may establish fees, rates, rents, and charges for the use of facilities of the community service board for the provision of disability services or of health services, in accordance with the terms of contracts entered into with the department, Department of Human Services, Department of Public Health, or Department of Community Health, as appropriate;
    17. Each community service board may borrow money for any business purpose and may incur debt, liabilities, and obligations for any business purpose. A debt, liability, or obligation incurred by a community service board shall not be considered a debt, liability, or obligation of the state or any county or any municipality or any political subdivision of the state. A community service board may not borrow money as permitted by this Code section if the highest aggregate annual debt service requirements of the then current fiscal year or any subsequent year for outstanding borrowings of the community service board, including the proposed borrowing, exceed 15 percent of the total revenues of the community service board in its fiscal year immediately preceding the fiscal year in which such debt is to be incurred. Interest paid upon such borrowings shall be exempt from taxation by the state or its political subdivisions. A state contract with a community service board shall not be used or accepted as security or collateral for a debt, liability, or obligation of a community service board without the prior written approval of the commissioner;
    18. Each community service board, to the extent authorized by law and the contract for the funds involved, may carry forward without lapse fund balances and establish operating, capital, and debt reserve accounts from revenues and grants derived from state, county, and all other sources; and
    19. Each community service board may operate, establish, or operate and establish facilities deemed by the community service board as necessary and convenient for the administration, operation, or provision of disability services or of health services by the community service board and may construct, reconstruct, improve, alter, repair, and equip such facilities to the extent authorized by state and federal law.
  2. Nothing shall prohibit a community service board from contracting with any county governing authority, private or other public provider, or hospital for the provision of disability services or of health services.
  3. Each community service board exists for nonprofit and public purposes, and it is found and declared that the carrying out of the purposes of each community service board is exclusively for public benefit and its property is public property. Thus, no community service board shall be required to pay any state or local ad valorem, sales, use, or income taxes.
  4. A community service board shall not have the power to tax, the power to issue general obligation bonds or revenue bonds or revenue certificates, or the power to financially obligate the state or any county or any municipal corporation.
  5. A community service board shall not operate any facility for profit. A community service board may fix fees, rents, rates, and charges that are reasonably expected to produce revenues, which, together with all other funds of the community service board, will be sufficient to administer, operate, and provide the following:
    1. Disability services or health services;
    2. The cost of acquiring, constructing, equipping, maintaining, repairing, and operating its facilities; and
    3. The creation and maintenance of reserves sufficient to meet principal and interest payments due on any obligation of the community service board.
  6. Each community service board may provide reasonable reserves for the improvement, replacement, or expansion of its facilities and services. Reserves under this subsection shall be subject to the limitations in paragraph (17) of subsection (b) of this Code section.
  7. Each county and municipal corporation of this state is authorized to convey or lease property of such county or municipal corporation to a community service board for its public purposes. Any property conveyed or leased to a community services board by a county or municipal corporation shall be operated by such community service board in accordance with this chapter and the terms of the community service board's agreements with the county or municipal corporation providing such conveyance or lease.
  8. Each community service board and any entity created or formed by such community service board pursuant to subsection (j) of this Code section shall keep books of account reflecting all funds received, expended, and administered by the community service board in accordance with generally accepted accounting principles. The community service board and an entity created or formed by such community service board, if any, pursuant to subsection (j) of this Code section shall assure the inclusion in its annual audit any information or procedures required by the department. The community service board and an entity created or formed by such community service board, if any, pursuant to subsection (j) of this Code section shall rotate audit firms at least once every five years. Copies of the annual audit and all findings shall be submitted to the department and the governing board of the community service board, or in the case of an entity created or formed by the community service board, if any, to the governing board of the community service board, the governing board of such entity, and the department within 60 days of completion of the audit.
  9. Subject to the approval of the commissioner and the governing board of the community service board, a community service board may create, form, or become a member of a nonprofit corporation, limited liability company, or other nonprofit entity, the voting membership of which shall be limited to community service boards, governmental entities, nonprofit corporations, or a combination thereof, if such entity is created for purposes that are within the powers of the community service board, for the cooperative functioning of its members, or a combination thereof; provided, however, that no funds provided pursuant to a contract between the department and the community service board may be used in the formation or operation of the nonprofit corporation, limited liability company, or other nonprofit entity. No community service board, whether or not it exercises the power authorized by this subsection, shall be relieved of compliance with Chapter 14 of Title 50, relating to open and public meetings, and Article 4 of Chapter 18 of Title 50, relating to inspection of public records, unless otherwise provided by law. The provisions of this subsection relating to the approval of the commissioner to the contrary notwithstanding, nothing in this subsection shall prohibit a community service board from creating, forming, or becoming a member of a national, regional, or state trade association or business league as defined for tax exempt purposes by the United States Internal Revenue Service for the benefit of member community service boards and similar organizations.
  10. No community service board shall employ or retain in employment, either directly or indirectly through contract, any person who is receiving a retirement benefit from the Employees' Retirement System of Georgia except in accordance with the provisions of subsection (c) of Code Section 47-2-110; provided, however, that any such person who is employed as of July 1, 2004, may continue to be employed.
  11. A community service board may join or form and operate, either directly or indirectly, one or more networks of community service boards, disability or health service professionals, and other providers of disability services or health services to arrange for the provision of disability services or health services through such networks; to contract either directly or through such networks with the Department of Community Health to provide services to Medicaid beneficiaries; to provide disability services or health services in an efficient and cost-effective manner on a prepaid, capitation, or other reimbursement basis; and to undertake other disability or health services related managed care activities. For purposes of this subsection only and notwithstanding Code Section 33-3-3 or any other provision of law, a community service board shall be permitted to and shall comply with the requirements of Chapter 20A of Title 33 to the extent that such requirements apply to the activities undertaken by the community service board or by a community service board under this subsection or subsection (j) of this Code section. No community service board, whether or not it exercises the powers authorized by this subsection, shall be relieved of compliance with Article 4 of Chapter 18 of Title 50, relating to inspection of public records, unless otherwise provided by law. Any licensed health care provider shall be eligible to apply to become a participating provider under such a plan or network that provides coverage for health care, disability services, or health services which are within the lawful scope of the provider's license, but nothing in this Code section shall be construed to require any such plan or network to provide coverage for any specific health care, disability service, or health service.

(Code 1981, §37-2-6.1, enacted by Ga. L. 1993, p. 1445, § 16; Ga. L. 1994, p. 437, § 5; Ga. L. 2002, p. 1324, §§ 1-7, 2-4, 2-5; Ga. L. 2004, p. 150, § 1; Ga. L. 2006, p. 310, § 6/HB 1223; Ga. L. 2009, p. 453, § 3-1/HB 228; Ga. L. 2009, p. 745, § 2/SB 97; Ga. L. 2010, p. 878, § 37/HB 1387; Ga. L. 2011, p. 705, § 5-23/HB 214; Ga. L. 2012, p. 446, § 2-58/HB 642; Ga. L. 2014, p. 309, § 5/SB 349; Ga. L. 2015, p. 5, § 37/HB 90; Ga. L. 2015, p. 385, § 7-1/HB 252; Ga. L. 2016, p. 864, § 37/HB 737.)

The 2010 amendment, effective June 3, 2010, part of an Act to revise, modernize, and correct the Code, substituted "provided, however, that" for "provided, however," in paragraphs (b)(7) and (b)(11).

The 2011 amendment, effective July 1, 2011, inserted "Department of Public Health," in paragraphs (b)(9) and (b)(15); and deleted "through the Department of Community Health" following "health services" in paragraph (b)(15).

The 2012 amendment, effective July 1, 2012, deleted "the State Personnel Administration," preceding "the state auditor" in paragraph (b)(4); in paragraph (b)(7), deleted "relating to state personnel administration," preceding "for so long as" and substituted "board remains subject to the rules and regulations of the State Personnel Board" for "board who is a covered employee as defined in Code Section 45-20-2 and is subject to the rules and regulations of the State Personnel Administration remains in a covered position"; deleted former paragraph (b)(14), which read: "Each community service board may contract with the State Personnel Administration regarding its personnel who remain in the classified service;"; redesignated former paragraphs (b)(15) through (b)(18) as present paragraphs (b)(14) through (b)(17), respectively; and substituted "paragraph (15)" for "paragraph (16)" in the second sentence of subsection (g).

The 2014 amendment, effective April 16, 2014, rewrote this Code section.

The 2015 amendments. The first 2015 amendment, effective March 13, 2015, part of an Act to revise, modernize, and correct the Code, redesignated former paragraph (a)(1) as subsection (a.1). The second 2015 amendment, effective July 1, 2015, substituted "The governing board" for "Each governing board" throughout; designated the existing provisions of subsection (a) as paragraph (a)(1); redesignated former paragraph (a)(1) as present paragraph (a)(2); substituted "45-10-21" for "45-10-2" at the end of the first sentence of paragraph (a)(2); substituted "each community" for "a community" near the beginning of subsection (b), paragraphs (b)(1), (b)(2) and in the first sentence of paragraph (b)(14); and substituted "paragraph (17)" for "paragraph (15)" in the last sentence of subsection (g). See the Editor's notes regarding the effect of these amendments.

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, substituted "this article" for "Article 1 of Chapter 2 of Title 37" at the end of paragraph (b)(11).

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which enacts this Code section, provides, in § 19.1, not codified by the General Assembly, that this Code section is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed this Code section.

Ga. L. 2006, p. 310, § 10/HB 1223, not codified by the General Assembly, provides that: "Nothing in this Act shall be construed to affect or abate any right accrued or vested prior to July 1, 2006, or any action or proceeding commenced prior to July 1, 2006, under any law amended or repealed by this Act."

Ga. L. 2006, p. 310, § 11/HB 1223, not codified by the General Assembly, provides that those provisions of that Act which authorize community service boards to amend their bylaws and authorize county governing authorities to appoint no sooner than May 1, 2006, any community service board members to take office on July 1, 2006, shall become effective April 21, 2006.

Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

Ga. L. 2015, p. 5, § 54(e)/HB 90, not codified by the General Assembly, provides: "In the event of a conflict between a provision in Sections 1 through 53 of this Act and a provision of another Act enacted at the 2015 regular session of the General Assembly, the provision of such other Act shall control over the conflicting provision in Sections 1 through 53 of this Act to the extent of the conflict." Accordingly, the amendment to this Code section by Ga. L. 2015, p. 5, § 37/HB 90, was not given effect.

Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act."'

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011).

JUDICIAL DECISIONS

Board employee not department employee.

- Legislature did not intend for community service boards to be part of the Department of Human Resources (DHR) (now known as the Department of Behavioral Health and Developmental Disabilities for these purposes) or its employees to be department employees under ordinary circumstances; thus, a suit claiming that DHR was liable for the alleged negligence of a board employee should have been dismissed. Dep't of Human Res. v. Crews, 278 Ga. App. 56, 628 S.E.2d 191 (2006).

Benefits of community service board's executive director fell with provisions of enabling legislation.

- When the community service board filed a declaratory judgment action against the board's former executive director, contending that the director's contract violated public policy and that the director was not entitled to payment and benefits for various reasons, and the director counterclaimed against the board, the trial court did not err in ruling in favor of the director because the board's broad powers encompassed all of the benefits paid to the director, and it did not show that any of the director's benefits fell outside of the provisions of the enabling legislation; the director was entitled to payment for any compensation related to performance already rendered; and the director's post-retirement benefits were not gratuities. Gateway Cmty. Serv. Bd. v. Bonati, 346 Ga. App. 653, 816 S.E.2d 743 (2018).

Community service boards constitute state agencies.

- Summary judgment for community service board on a former executive director's breach of employment contract claim was reversed because the trial court erred in determining that the director was an official instead of an employee under the State of Georgia Merit Protection System; under O.C.G.A. §§ 37-2-6.1(b)(7) and37-2-6.2, the board was a state agency when the board terminated the director, and the director was a classified employee in a covered position under the State Merit Protection System, O.C.G.A. § 45-20-2(2) and (6). Ashe v. Clayton County Cmty. Serv. Bd., 262 Ga. App. 738, 586 S.E.2d 683 (2003)(Unpublished).

Fiscal autonomy.

- Because O.C.G.A. § 37-2-11.1 stated community service boards (CSB) were not agencies of the state or any specific county and that the boards had the same immunity as counties and counties were not arms of the state and did not have Eleventh Amendment immunity, the defendant, a CSB former employer, was not entitled to Eleventh Amendment immunity on a plaintiff former employee's discrimination claim; it was noted that CSB were fiscally autonomous and solely liable for any losses due to suit under O.C.G.A. §§ 37-2-6(a),37-2-6.1(b)(16), and37-2-6.3(c) specifically made CSB solely liable in litigation; thus, there was no question that CSB were fiscally autonomous. Peery v. Serenity Behavioral Health Sys., F. Supp. 2d (S.D. Ga. May 4, 2009).

Cited in Johnson v. Ogeechee Behavioral Health Servs., 479 F. Supp. 2d 1357 (S.D. Ga. 2007).

37-2-6.2. Employees whose jobs include duties or functions which became duties or functions of a community service board on July 1, 1994; rights, duties, and benefits of employees.

    1. Those employees whose job descriptions, duties, or functions as of June 30, 1994, included the performance of employment duties or functions which will become employment duties or functions of the personnel of a community service board on July 1, 1994, shall become employees of the applicable community service boards on and after July 1, 1994. Such employees shall be subject to the employment practices and policies of the applicable community service board on and after July 1, 1994. Employees who are subject to the rules of the State Personnel Board and who are transferred to a community service board shall retain all existing rights under such rules. Retirement rights of such transferred employees existing under the Employees' Retirement System of Georgia or other public retirement systems on June 30, 1994, shall not be impaired or interrupted by the transfer of such employees and membership in any such retirement system shall continue in the same status possessed by the transferred employees on June 30, 1994, without any interruption in membership service and without the loss of any creditable service. For purposes of coverage under the Employees' Retirement System of Georgia, such employees transferred to the community service boards on July 1, 1994, shall be deemed to be state employees. Accrued annual and sick leave possessed by said employees on June 30, 1994, shall be retained by said employees as employees of the community service board. Any person who is granted employment rights and benefits as a member of a community service board pursuant to this subsection and who later becomes employed, without any break in service, by the department, Department of Human Services, or Department of Public Health, a hospital thereof, another community service board, a county board of health for which such person provides services pursuant to this title, or a regional board shall retain, in that later employment position, all such rights and benefits. Such rights and benefits shall also be retained by any person who is employed on June 30, 1994, by the former Division of Mental Health, Developmental Disabilities, and Addictive Diseases (now known as the Department of Behavioral Health and Developmental Disabilities) of the former Department of Human Resources, a hospital thereof, a county board of health for which such person provides services pursuant to this title, or a regional board and who later becomes employed, without any break in service, by a community service board.
    2. Classified employees of a community service board under this chapter shall in all instances be employed and dismissed in accordance with rules and regulations of the State Personnel Board.
    3. All rights, credits, and funds in the Employees' Retirement System of Georgia which are possessed by personnel transferred by provisions of this Code section to the community service boards are continued and preserved, it being the intention of the General Assembly that such persons shall not lose any rights, credits, or funds to which they may be entitled prior to becoming employees of the community service boards.
  1. As to those persons employed by the former Division of Mental Health, Developmental Disabilities, and Addictive Diseases (now known as the Department of Behavioral Health and Developmental Disabilities) of the former Department of Human Resources, a hospital thereof, or a regional board on June 30, 1994, any termination from state employment after that date of any such person who is a member of the classified service shall not result from the anticipated or actual employment or utilization by:
    1. The department;
    2. A regional board;
    3. A community service board;
    4. A hospital;
    5. The Department of Human Services;
    6. The Department of Public Health; or
    7. Any private provider of disability services or health services of any person who is not an employee of the state or a political subdivision thereof to perform the duties and functions of such terminated state personnel unless such termination and utilization is the result of a reduction in appropriations for such duties or functions or is the result of a reduction in force caused by any other state department or agency which has ceased to contract with the department, the Department of Human Services, or the Department of Public Health for the services which had been provided by the terminated state personnel.

(Code 1981, §37-2-6.2, enacted by Ga. L. 1993, p. 1445, § 16; Ga. L. 1994, p. 437, § 6; Ga. L. 2002, p. 1324, § 1-7; Ga. L. 2009, p. 453, § 3-1/HB 228; Ga. L. 2009, p. 745, § 2/SB 97; Ga. L. 2011, p. 705, § 6-3/HB 214; Ga. L. 2012, p. 446, § 2-59/HB 642.)

The 2011 amendment, effective July 1, 2011, substituted "Department of Public Health" for "Department of Community Health" in the next-to-last sentence in paragraph (a)(1), and in paragraphs (b)(6) and (b)(7).

The 2012 amendment, effective July 1, 2012, in paragraph (a)(1), in the third sentence, substituted "rules of the State Personnel Board" for "State Personnel Administration" and substituted "such rules" for "the State Personnel Administration"; and substituted "State Personnel Board" for "State Personnel Administration" in paragraph (a)(2).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1994, "boards" was substituted for "boards," at the first instance of that term in paragraph (a)(3).

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which enacts this Code section, provides, in § 19.1, not codified by the General Assembly, that this Code section is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed this Code section.

Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011).

JUDICIAL DECISIONS

Director of a community service board is covered under the State of Georgia Merit Protection System.

- Summary judgment for community service board on a former executive director's breach of employment contract claim was reversed because the trial court erred in determining that the director was an official instead of an employee under the State of Georgia Merit Protection System; under O.C.G.A. §§ 37-2-6.1(b)(7) and37-2-6.2, the board was a state agency when the board terminated the director, and the director was a classified employee in a covered position under the State Merit Protection System, O.C.G.A. § 45-20-2(2) and (6). Ashe v. Clayton County Cmty. Serv. Bd., 262 Ga. App. 738, 586 S.E.2d 683 (2003)(Unpublished).

37-2-6.3. Public body; lawsuits; debts, obligations, and liabilities.

  1. A community service board is a public body as provided in paragraph (1) of subsection (c) of Code Section 37-2-11.1.
  2. A community service board has the power to bring an action in its own name and, to the extent otherwise authorized by law and to the extent not immune from suit, may be sued in its own name. The state and the counties in which the community service board operates shall not be considered a party to or liable under any such litigation.
  3. The governing board of a community service board as well as the community service board itself shall be prohibited from bringing any action against the state.
  4. Debts, obligations, and liabilities of a community service board are not debts, obligations, or liabilities of the state or of the counties in which such board operates. A community service board is prohibited from entering into debts, obligations, or liabilities which are also debts, obligations, or liabilities of the state or of any county.

(Code 1981, §37-2-6.3, enacted by Ga. L. 2002, p. 1324, § 2-6; Ga. L. 2009, p. 8, § 37/SB 46; Ga. L. 2009, p. 453, § 3-1/HB 228; Ga. L. 2014, p. 309, § 6/SB 349.)

The 2014 amendment, effective April 16, 2014, added subsection (c) and redesignated former subsection (c) as present subsection (d).

JUDICIAL DECISIONS

Fiscal autonomy.

- Because O.C.G.A. § 37-2-11.1 stated community service boards (CSB) were not agencies of the state or any specific county and that the boards had the same immunity as counties and counties were not arms of the state and did not have Eleventh Amendment immunity, the defendant, a CSB former employer, was not entitled to Eleventh Amendment immunity on a plaintiff former employee's discrimination claim; it was noted that CSB were fiscally autonomous and solely liable for any losses due to suit under O.C.G.A. §§ 37-2-6(a) and37-2-6.1(b)(16), and O.C.G.A. § 37-2-6.3(c) specifically made CSB solely liable in litigation; thus, there was no question that CSB were fiscally autonomous. Peery v. Serenity Behavioral Health Sys., F. Supp. 2d (S.D. Ga. May 4, 2009).

Cited in Johnson v. Ogeechee Behavioral Health Servs., 479 F. Supp. 2d 1357 (S.D. Ga. 2007).

37-2-6.4. Reconstituting or converting of organizational structure; formation of new community service board.

  1. Notwithstanding any other provisions of this chapter, a community service board may reconstitute or convert its organizational structure in the following ways:
    1. With the approval of the governing board of the community service board and the approval of the county governing authorities of the counties served by the community service board, the community service board may convert to a private nonprofit corporation. So long as the reconstituted organization continues to serve a public purpose as defined by the department, the Department of Human Services, or the Department of Public Health, as appropriate, such organization shall be authorized to retain the use of assets, equipment, and resources purchased with state and federal funds by the former community service board. In the event the new private nonprofit fails to serve such public purpose, those assets, equipment, and resources purchased by the former community service board with state and federal funds shall be returned to the department, the Department of Human Services, or the Department of Public Health, as appropriate, or to an agency designated by such department. For a period of three years following the community service board's conversion to a private nonprofit corporation, the private nonprofit corporation shall ensure that consumers of disability services or health services, as appropriate, and family members of such consumers constitute a majority of the appointed board members and that the various disability groups and health services groups are equitably represented on the board of the nonprofit corporation;
    2. With the approval of the governing board of the community service board and the approval of all of the county governing authorities of the counties served by the community service board, the community service board may convert to a unit of county government. All assets, equipment, and resources of the community service board shall be transferred to the new unit of county government; or
    3. With the approval of the governing board of the community service board and the approval of all of the county governing authorities of the counties served by the community service board, the community service board may become a component part of a hospital authority in those counties served by the community service board. So long as the hospital authority continues to serve a public purpose as defined by the department, the Department of Human Services, or the Department of Public Health, as appropriate, the hospital authority shall be authorized to retain possession of those assets, equipment, and resources purchased by the community service board with state and federal funds. In the event the hospital authority fails to serve such public purpose, those assets, equipment, and resources purchased by the community service board with state and federal funds shall be returned to the department, the Department of Human Services, or the Department of Public Health, as appropriate, or to an agency designated by such appropriate department or departments.
  2. In the event that all county governing authorities of a community service area designated pursuant to subsection (b) of Code Section 37-2-3 concur that a community service board reconstituted pursuant to subsection (a) of this Code section has failed to provide disability services or health services as required, those county governing authorities may request that the department coordinate the formation of a new community service board pursuant to Code Section 37-2-6. Upon notification of the request, the department shall assist the county governing authorities in making appointments to the new community service board and establishing bylaws pursuant to Code Section 37-2-6. The department shall make a determination about the disposition of all assets, equipment, and resources purchased with state or federal funding in the possession of the predecessor agency. To the extent that the community service board was providing disability services or health services through the Department of Human Services or the Department of Public Health, such department or departments shall provide to the Department of Behavioral Health and Developmental Disabilities all documents, data, information, and consultation necessary or helpful to the formation of the new community service board and the determination and disposition of assets, equipment, and resources of the community service board.

(Code 1981, §37-2-6.4, enacted by Ga. L. 2002, p. 1324, § 2-6; Ga. L. 2009, p. 453, § 3-1/HB 228; Ga. L. 2011, p. 705, § 6-3/HB 214.)

The 2011 amendment, effective July 1, 2011, substituted "Department of Public Health" for "Department of Community Health" throughout this Code section.

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011).

JUDICIAL DECISIONS

Joinder of Community Service Boards.

- Because O.C.G.A. § 37-2-11.1 stated community service boards (CSB) were not agencies of the state or any specific county and that the boards had the same immunity as counties and counties were not arms of the state and did not have Eleventh Amendment immunity, the defendant, a CSB former employer, was not entitled to Eleventh Amendment immunity on a plaintiff former employee's discrimination claim; it was noted that counties had significant control over the policy and decisions made by CSB in that counties appoint board members under O.C.G.A. § 37-2-6(b) and the counties served could allow CSB to privatize or join the county government under O.C.G.A. § 37-2-6.4(a), which was especially cogent, because it meant CSB, without state approval, could take itself outside of the state's control, and under O.C.G.A. § 37-2-6.5(a), CSB had to get county approval to dissolve. Peery v. Serenity Behavioral Health Sys., F. Supp. 2d (S.D. Ga. May 4, 2009).

Cited in Johnson v. Ogeechee Behavioral Health Servs., 479 F. Supp. 2d 1357 (S.D. Ga. 2007).

37-2-6.5. Cessation of operations by community service board; notification; continuation of operations by successor board, county board of health, or outside manager.

  1. By joint action of the membership of a community service board created pursuant to Code Section 37-2-6 and the governing authority of each county within the community service board area, such community service board may cease operations; provided, however, that such community service board shall notify the commissioner at least 90 days in advance of the meeting of the community service board in which such action is to be taken. Such joint action shall indicate the date on which the community service board shall cease operations.
  2. Upon receipt of notification that a community service board intends to cease operations, the commissioner shall notify the chairperson and executive director of such community service board and the governing authority of each county within the community service board area of such board that:
    1. The department, after securing the approval of the Governor, intends to appoint a manager or management team to manage and operate the programs and services of the community service board in accordance with the provisions of paragraph (1) of subsection (c) of Code Section 37-2-10 until the department shall determine:
      1. That such community service board should continue in operation, provided one or more members appointed to such board in accordance with subsection (b) of Code Section 37-2-6 shall be removed in accordance with subparagraph (c)(3)(H) of Code Section 37-2-10, and the department, acting on behalf of the membership of the community service board, nominates a successor to a removed member and advises the county governing authority that appointed such removed member to appoint a successor;
      2. That all of the members of such community service board appointed in accordance with subsection (b) of Code Section 37-2-6 shall be removed and such community service board shall be reconstituted; and that the department shall assist the county governing authorities in making appointments to the new community service board; or
      3. In the case where the membership of such community service board is the membership of a county board of health designated in accordance with Code Section 31-3-12.1 or subsection (e) of Code Section 37-2-6, that the entire membership of the community service board should be removed and the membership of the community service board be reconstituted in accordance with subsection (b) of Code Section 37-2-6;
    2. The department, with the approval of the commissioner, intends to redesignate the boundaries of the community service board area served by such board pursuant to paragraph (1) of subsection (b) of Code Section 37-2-3 by expanding the boundaries of a community service board area served by another community service board to include the counties in the community service board area served by the community service board that intends to cease operations so that the community service board serving such area may assume responsibility for the provision of disability services within such counties;
    3. The department intends to request pursuant to Code Section 31-3-12.1 that the governing authority of a county within the community service board area of such board authorize the membership of the board of health of such county to serve as the membership of such community service board; or
    4. The department, after securing the approval of the Governor, intends to appoint a manager or management team to manage and operate the programs and services of the community service board until such time as arrangements can be made to secure one or more alternate service providers to assume responsibility for the provision of services previously provided by the community service board.
  3. If a community service board ceases operation and is succeeded by another community service board pursuant to paragraph (2), a county board of health pursuant to paragraph (3), or a manager or management team pursuant to paragraph (4) of subsection (b) of this Code section, the department shall make a determination about the disposition of all assets, equipment, and resources purchased with state or federal funding in the possession of the predecessor community service board.
  4. If a community service board ceases operation and one or more alternate service providers assume responsibility for the provision of services previously provided by the community service board pursuant to paragraph (4) of subsection (b) of this Code section, the department shall petition the superior court of the county in which the principal office of that community service board was located for appointment of a receiver of the assets of the community service board for the protection of the board's creditors and the public. The receiver shall be authorized to marshal and sell or transfer assets of the board, and, after payment of the costs, expenses, and approved fees of the proceeding, to pay the liabilities of the community service board. The court shall then decree that the board be dissolved. Upon completion of the liquidation, any surplus remaining after paying all costs of the liquidation shall be distributed, as determined by the court, to the agencies, entities, or providers providing disability services in the community service board area formerly served by the community service board which ceased operations. At no time shall any community service board upon ceasing operations convey any of its property, except as may be otherwise authorized by a superior court in this subsection, to any private person, association, or corporation.

(Code 1981, §37-2-6.5, enacted by Ga. L. 2006, p. 310, § 7/HB 1223; Ga. L. 2009, p. 453, § 3-1/HB 228; Ga. L. 2010, p. 878, § 37/HB 1387; Ga. L. 2014, p. 309, § 7/SB 349.)

The 2010 amendment, effective June 3, 2010, part of an Act to revise, modernize, and correct the Code, substituted "provided, however, that" for "provided, however," in the first sentence of subsection (a).

The 2014 amendment, effective April 16, 2014, in paragraph (b)(2), substituted "a community" for "an adjacent community" near the middle and deleted "adjacent" preceding "area may" near the end.

Editor's notes.

- Ga. L. 2006, p. 310, § 10/HB 1223, not codified by the General Assembly, provides that: "Nothing in this Act shall be construed to affect or abate any right accrued or vested prior to July 1, 2006, or any action or proceeding commenced prior to July 1, 2006, under any law amended or repealed by this Act."

Ga. L. 2006, p. 310, § 11/HB 1223, not codified by the General Assembly, provides that those provisions of that Act which authorize community service boards to amend their bylaws and authorize county governing authorities to appoint no sooner than May 1, 2006, any community service board members to take office on July 1, 2006, shall become effective April 21, 2006.

JUDICIAL DECISIONS

Approval required to dissolve.

- Because O.C.G.A. § 37-2-11.1 stated community service boards (CSB) were not agencies of the state or any specific county and that the boards had the same immunity as counties and counties were not arms of the state and did not have Eleventh Amendment immunity, the defendant, a CSB former employer, was not entitled to Eleventh Amendment immunity on a plaintiff former employee's discrimination claim; it was noted that counties had significant control over the policy and decisions made by CSB in that counties appoint board members under O.C.G.A. § 37-2-6(b) and the counties served could allow CSB to privatize or join the county government under O.C.G.A. § 37-2-6.4(a), which was especially cogent, because it meant CSB, without state approval, could take itself outside of the state's control, and under O.C.G.A. § 37-2-6.5(a), the CSB had to get county approval to dissolve. Peery v. Serenity Behavioral Health Sys., F. Supp. 2d (S.D. Ga. May 4, 2009).

Cited in Johnson v. Ogeechee Behavioral Health Servs., 479 F. Supp. 2d 1357 (S.D. Ga. 2007).

37-2-7. Formulation and publication of state plan for disability services.

  1. The department shall formulate and publish in print or electronically biennially a state plan for disability services which shall take into account the disability services plans submitted by the regional offices as required by Code Section 37-2-5.2. The state disability services plan shall be comprehensive and shall include public and private institutional and community services to the disabled. In developing the state plan, the department shall request input from the regional offices and planning boards, the community service boards, hospitals, and other public and private providers. The plan shall include an overview of current services and programs and shall also present information on future program, service, educational, and training needs.
  2. The plan shall address ways of eliminating, to the extent possible, detrimental delays and interruptions in the administration of disability services when moving an individual from one element of service to another in order to ensure continuity of care and treatment for persons receiving such services.
  3. The plan shall further set forth the proposed annual budget of the department and the regions.
  4. The plan shall be submitted to the department, the Governor, the General Assembly, the council, the regional planning boards, the hospitals, the community service boards, and any other public or private provider requesting a copy of the plan.
  5. At such time as the state plan is submitted, the department shall further submit an analysis of services provided, programs instituted, progress made, and the extent of implementation of the previous biennial plan. Such analysis shall measure the effectiveness and the efficiency of the methods of delivering services which ameliorate or prevent disability and restore health. This analysis shall further address the efforts of the department in coordinating services in accordance with Code Section 37-2-9.

(Code 1933, § 88-606, enacted by Ga. L. 1976, p. 953, § 1; Ga. L. 1986, p. 1213, § 1; Ga. L. 1993, p. 1445, § 16; Ga. L. 1999, p. 860, § 2; Ga. L. 2002, p. 1324, § 1-7; Ga. L. 2009, p. 453, § 3-1/HB 228; Ga. L. 2010, p. 838, § 10/SB 388.)

The 2010 amendment, effective June 3, 2010, inserted "in print or electronically" in the first sentence of subsection (a).

Code Commission notes.

- Ga. L. 1999, p. 860, § 2, not codified by the General Assembly, provided that subsection (b.1) becomes effective only when funds are specifically appropriated for the purposes of subsection (b.1) in an Appropriations Act making specific reference to this Act. Funds were not appropriated in the 1999, 2000, or 2001 session. The contingent enactment of subsection (b.1) has been treated as superseded by Ga. L. 2002, p. 1324, § 1-7, which rewrote this article.

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which amends this Code section, provides, in § 19.1, not codified by the General Assembly, that the amendment is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed the 1993 amendment to this Code section.

JUDICIAL DECISIONS

Property interest of participants in supportive living program.

- Rules and regulations of state and local supportive living program give participants in the program a property interest subject to due process including an evidentiary hearing prior to termination from the program. Fields v. Pittman, 571 F. Supp. 32 (N.D. Ga. 1983).

37-2-8. Unification of state and area service programs.

Reserved. Repealed by Ga. L. 1993, p. 1445, § 16, effective July 1, 1994.

Editor's notes.

- This Code section was based on Code 1933, § 88-608, enacted by Ga. L. 1976, p. 953, § 1; Ga. L. 1986, p. 1213, § 1.

Ga. L. 1993, p. 1445, which repeals and reserves this Code section, provides in § 19.1, not codified by the General Assembly, that the repeal is itself repealed on June 30, 1999.

Ga. L. 1993, p. 1445, which amends this Code section, provides, in § 19.1, not codified by the General Assembly, that the amendment is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed the 1993 amendment to this Code section.

37-2-9. Coordination of disability services with related activities of other agencies and organizations.

To the maximum extent possible, disability services provided by the department and the regional offices, hospitals, community service boards, and other public and private providers shall be coordinated with related activities of the department and judicial, correctional, educational, social, and other health service agencies and organizations, both private and public.

(Code 1933, § 88-609, enacted by Ga. L. 1976, p. 953, § 1; Ga. L. 1986, p. 1213, § 1; Ga. L. 1993, p. 1445, § 16; Ga. L. 2002, p. 1324, § 1-7; Ga. L. 2009, p. 453, § 3-1/HB 228.)

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which amends this Code section, provides, in § 19.1, not codified by the General Assembly, that the amendment is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed the 1993 amendment to this Code section.

37-2-9.1. Compliance by regional planning boards and community service boards with laws as to open meetings and inspection of records; advisory boards.

  1. Each regional planning board and community service board shall comply with the provisions of Chapter 14 of Title 50, relating to open and public meetings, and Article 4 of Chapter 18 of Title 50, relating to inspection of public records, except where records or proceedings are expressly made confidential pursuant to other provisions of law.
  2. Each regional office and community service board and other public and private providers are authorized to establish one or more advisory boards for the purpose of ensuring coordination with various agencies and organizations and providing professional and other expert guidance.

(Code 1981, §37-2-9.1, enacted by Ga. L. 1993, p. 1445, § 16; Ga. L. 2002, p. 1324, § 1-7; Ga. L. 2009, p. 453, § 3-1/HB 228.)

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which enacts this Code section, provides, in § 19.1, not codified by the General Assembly, that this Code section is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed this Code section.

37-2-10. Commissioner's emergency powers upon failure of community service board to establish and administer programs.

  1. Notwithstanding any other provisions of the law, the commissioner with the concurrence of the Governor is authorized to establish and administer community programs on an emergency basis in the event one or more community service boards or their respective governing boards fail to assume responsibility for the establishment and implementation of an adequate range of disability services or to provide appropriate disability services as determined by the department or substantially breach their contracts with the department pursuant to this chapter.
  2. Upon notification by a governing board of a community service board of an inability to provide an adequate range of disability services or to provide appropriate services, the commissioner, with concurrence of the Governor, may:
    1. Assume responsibility for the administration and operation of all of the community programs operated by or through such board and, in which case, the programs shall become department programs; the department shall acquire the assets of the community service board; the community service board employees shall become employees of the department; and the governing board of the community service board shall be dissolved; or
    2. Assume responsibility for the administration and operation of one or more of the community programs operated by or through such board, in which case, such program or programs shall become a department program or programs; the department shall acquire those assets of the community service board assigned to such program or programs; and the employees of such program or programs shall become employees of the department. Any community service board programs not transferred to the department shall continue to be operated by the governing board of the community service board and the employees for such programs shall remain community service board employees.
    1. Notwithstanding any other provisions of the law, the commissioner with the concurrence of the Governor is authorized to appoint a manager or management team to manage and operate the programs and services of the community service board if the commissioner finds that the community service board:
      1. Provides notice pursuant to Code Section 37-2-6.5 that the community service board intends to cease operations;
      2. Intentionally, recklessly, or negligently failed to discharge its duties pursuant to a contract with the department;
      3. Misused state or federal funds;
      4. Engaged in a fraudulent act, transaction, practice, or course of business;
      5. Endangered the life, safety, or health of a consumer served by the community service board;
      6. Failed to keep fiscal records and maintain proper control over its assets;
      7. Failed to respond to a substantial deficiency in a review or audit;
      8. Otherwise substantially failed to comply with this chapter or the rules or standards of the department; or
      9. No longer has the fiscal ability to continue to provide contracted services and, without the intervention of the department, continued provision of disability services or health services to consumers in the service area is in immediate jeopardy.
    2. In order to carry out the provisions of paragraph (1) of this subsection, the commissioner shall give written notice to the governing board of the community service board regarding the appointment of a manager or management team and the circumstances on which the appointment is based. The governing board of the community service board shall be immediately suspended upon the appointment of a manager or management team by the commissioner. The commissioner may require the community service board to pay costs incurred by the manager or management team.
    3. Subject to the determination of the commissioner, a manager or management team appointed pursuant to this subsection may:
      1. Evaluate, redesign, modify, administer, supervise, or monitor a procedure, operation, or the management of the community service board;
      2. Hire, supervise, discipline, reassign, or terminate the employment of an employee of the community service board;
      3. Reallocate the resources and manage the assets of the community service board;
      4. Require that a financial transaction, expenditure, or contract for goods and services be approved by the manager or management team;
      5. Redesign, modify, or terminate a program or service of the community service board;
      6. Direct the executive director, chief financial officer, or any other administrative or program manager, employee, or agent to take an action;
      7. Exercise a power, duty, authority, or function of the community service board or its governing board as authorized by this chapter;
      8. Recommend to the commissioner the removal of a member or members of the governing board of the community service board or the executive director of the community service board; and the provisions of any law to the contrary notwithstanding, the commissioner may remove such member or executive director from office. If the commissioner removes a member or members of the governing board of the community service board pursuant to this subparagraph, the member or members so removed shall be replaced pursuant to Code Section 37-2-6; and
      9. Report at least monthly to the commissioner on actions taken.
    4. A manager or management team appointed pursuant to this subsection may not use or dispose of any asset or funds contributed to the community service board by the governing authority of a county or municipal corporation without the approval of such governing authority.
    5. A manager or management team appointed pursuant to this subsection shall be free from all liability, joint or several, for the manager or management team's acts, omissions, and conduct and for the acts, omissions, and conduct of their duly constituted agents in the administration of the community service board or its programs. The state shall indemnify and save them, and each of them, harmless from the effects and consequences of their acts, omissions, and conduct in their official capacity, except to the extent that such effects and consequences shall result from their own willful misconduct.
    6. If a manager or management team is appointed pursuant to this Code section, the department may:
      1. Upon a determination that the conditions that gave rise to the appointment of a manager or management team pursuant to this subsection have been met and that such manager or management team is no longer necessary, terminate the authority delegated to such manager or management team and restore authority to the governing board of the community service board to manage and operate the services and programs of the community service board; or
      2. Operate and manage the programs of the community service board until such time as arrangements can be made to secure one or more alternate service providers to assume responsibility for the provision of services previously provided by the community service board. If this option is exercised, the department shall petition the appropriate superior court for appointment of a receiver pursuant to subsection (d) of Code Section 37-2-6.5.
    7. Nothing in this subsection shall be construed to prohibit the department from canceling a contract with a community service board.

(Code 1933, § 88-610, enacted by Ga. L. 1976, p. 953, § 1; Ga. L. 1986, p. 1213, § 1; Ga. L. 1993, p. 1445, § 16; Ga. L. 2002, p. 1324, § 1-7; Ga. L. 2006, p. 310, § 8/HB 1223; Ga. L. 2009, p. 453, § 3-1/HB 228; Ga. L. 2010, p. 878, § 37/HB 1387; Ga. L. 2014, p. 309, § 8/SB 349; Ga. L. 2015, p. 385, § 7-2/HB 252.)

The 2010 amendment, effective June 3, 2010, part of an Act to revise, modernize, and correct the Code, revised language in subparagraph (c)(5)(B).

The 2014 amendment, effective April 16, 2014, inserted "or their respective governing boards" in subsection (a); inserted "governing board of a" in subsection (b); in paragraph (b)(1), deleted "and" following "community service board;" in the middle and inserted "; and the governing board of the community service board shall be dissolved" near the end; inserted "governing board of the" in paragraph (b)(2); deleted "in extenuating circumstances," following "provisions of the law," near the beginning of paragraph (c)(1); substituted "the community service board" for "such board" in subparagraph (c)(1)(A); inserted "governing board of the" in the first sentence of paragraph (c)(2) and in subparagraph (c)(6)(A); added the second sentence in paragraph (c)(2); in subparagraph (c)(3)(F), deleted "the members of the community service board," following "Direct" and inserted ", employee, or agent"; inserted "or its governing board" in subparagraph (c)(3)(G); in subparagraph (c)(3)(H), inserted "or members of the governing board of the community service board" near the beginning of the first sentence and inserted the last sentence; added paragraph (c)(5); and redesignated former paragraphs (c)(5) and (c)(6) as present paragraphs (c)(6) and (c)(7), respectively.

The 2015 amendment, effective July 1, 2015, substituted "team appointed" for "team appoint" near the beginning of the first sentence of paragraph (c)(5).

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which amends this Code section, provides, in § 19.1, not codified by the General Assembly, that the amendment is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed the 1993 amendment to this Code section.

Ga. L. 2006, p. 310, § 10/HB 1223, not codified by the General Assembly, provides that: "Nothing in this Act shall be construed to affect or abate any right accrued or vested prior to July 1, 2006, or any action or proceeding commenced prior to July 1, 2006, under any law amended or repealed by this Act."

Ga. L. 2006, p. 310, § 11/HB 1223, not codified by the General Assembly, provides that those provisions of that Act which authorize community service boards to amend their bylaws and authorize county governing authorities to appoint no sooner than May 1, 2006, any community service board members to take office on July 1, 2006, shall become effective April 21, 2006.

Ga. L. 2010, p. 878, § 37(5)/HB 1387, which amended this Code section, purported to amend subparagraph (b)(5)(B), but actually amended subparagraph (c)(5)(B).

Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.' "

JUDICIAL DECISIONS

Board employee not department employee.

- Legislature did not intend for community service boards to be part of the Department of Human Resources (DHR) (now known as the Department of Behavioral Health and Developmental Disabilities for these purposes) or its employees to be department employees under ordinary circumstances; thus, a suit claiming that DHR was liable for the alleged negligence of a board employee should have been dismissed. Dep't of Human Res. v. Crews, 278 Ga. App. 56, 628 S.E.2d 191 (2006).

State has power to punish boards.

- Because O.C.G.A. § 37-2-11.1 stated community service boards (CSB) were not agencies of the state or any specific county and that the boards had the same immunity as counties and counties were not arms of the state and did not have Eleventh Amendment immunity, the defendant, a CSB former employer, was not entitled to Eleventh Amendment immunity on a plaintiff former employee's discrimination claim; it was noted that despite significant county controls, the state retained the power to punish CSB as provided in O.C.G.A. § 37-2-10(b), but the ability to punish represented the extent of state control and the creating statute, § 37-2-11.1(c)(1), clearly stated that CSB employees were not state employees regardless of any state control. Peery v. Serenity Behavioral Health Sys., F. Supp. 2d (S.D. Ga. May 4, 2009).

Sovereign immunity.

- Community service board (CSB) was not entitled to Eleventh Amendment immunity against a former employee's Americans with Disabilities Act claims because: (1) for the purpose of litigation, the Georgia General Assembly in O.C.G.A. § 37-2-11.1(c)(1) defined a CSB as being akin to a county, which was not an arm of the state entitled to immunity; and (2) when it came to debt and liability, a CSB was autonomous pursuant to O.C.G.A. § 37-2-6(a); although other factors cut in favor of CSB entitlement to Eleventh Amendment immunity, including the state's exercise of some control over a CSB pursuant to O.C.G.A. § 37-2-10(b) and a CSB partial state funding, such factors were afforded less weight by the court. Johnson v. Ogeechee Behavioral Health Servs., 479 F. Supp. 2d 1357 (S.D. Ga. 2007).

37-2-11. Allocation of available funds for services; recipients to meet minimum standards; accounting for fees generated by providers; discrimination in providing services prohibited.

  1. It is the goal of the State of Georgia that every citizen be provided an adequate level of disability care through a unified system of disability services. To this end, the department shall, to the maximum extent possible, allocate funds available for services so as to provide an adequate disability services program available to all citizens of this state. In funding and providing disability services, the department and the regional offices shall ensure that all providers, public or private, meet minimum standards of quality and competency as established by the department.
  2. Fees generated, if any, by hospitals, community service boards, and other private and public providers, providing services under contract or purview of the department, shall be reported to the department and applied wherever appropriate against the cost of providing, and increasing the quantity and quality of, disability services; provided, however, that income to a community service board derived from fees may be used to further the purposes of such community service board as found in Code Section 37-3-6.1, subject to appropriations. The department shall be responsible for developing procedures to properly account for the collection, remittance, and reporting of generated fees. The department shall work with the community service boards and other public or private providers to develop an appropriate mechanism for accounting for the funds and resources contributed to local disability services by counties and municipalities within the area. Such contributions are not required to be submitted to either the community service boards or the department; however, appropriate documentation and accounting entries shall make certain that the county or municipality is credited, and if necessary compensated, appropriately for such contribution of funds or resources.
  3. No person shall be denied disability services provided by the state as defined in this chapter based on age, gender, race, ethnic origin, or inability to pay; provided, however, unless otherwise prohibited by law or contract, providers of disability services may deny nonemergency disability services to any person who is able to pay, but who refuses to pay. The department shall develop a state-wide sliding fee scale for the provision of disability services and shall promulgate standards that define emergency disability services and refusal to pay.

(Code 1933, § 88-612, enacted by Ga. L. 1976, p. 953, § 1; Ga. L. 1986, p. 1213, § 1; Ga. L. 1993, p. 1445, § 16; Ga. L. 2002, p. 1324, § 1-7; Ga. L. 2006, p. 310, § 9/HB 1223; Ga. L. 2009, p. 453, § 3-1/HB 228.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1993, "remittance," was substituted for "remittance" in the second sentence of subsection (b).

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which amends this Code section, provides, in § 19.1, not codified by the General Assembly, that the amendment is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed the 1993 amendment to this Code section.

Ga. L. 2006, p. 310, § 10/HB 1223, not codified by the General Assembly, provides that: "Nothing in this Act shall be construed to affect or abate any right accrued or vested prior to July 1, 2006, or any action or proceeding commenced prior to July 1, 2006, under any law amended or repealed by this Act."

Ga. L. 2006, p. 310, § 11/HB 1223, not codified by the General Assembly, provides that those provisions of that Act which authorize community service boards to amend their bylaws and authorize county governing authorities to appoint no sooner than May 1, 2006, any community service board members to take office on July 1, 2006, shall become effective April 21, 2006.

JUDICIAL DECISIONS

Cited in Youngblood v. Gwinnett Rockdale Newton Cmty. Serv. Bd., 273 Ga. 715, 545 S.E.2d 875 (2001).

37-2-11.1. Venue in actions against community service board; representation by Attorney General; immunity; use of legal counsel; authority for indemnification, defense, and insurance.

  1. Venue for the purpose of any action against a community service board shall be the county in which the principal office of the community service board is located. For purposes of this Code section, "principal office" shall be defined as the facility which houses the executive director or other such top administrator for the community service board.
  2. In any legal proceeding, a regional planning board or the regional office shall be considered a unit of the department and shall be afforded the assistance of legal counsel from the Attorney General.
    1. The community service boards shall be public bodies but shall not be considered agencies of the state or any specific county or municipality. Such community service boards are public agencies in their own right and shall have the same immunity as provided for counties. No county shall be liable for any action, error, or omission of a community service board. Notwithstanding any provisions of law to the contrary, and regardless of any provisions of law which grant employees of the community service boards benefits under programs operated by the state or which deem them to be state employees only for purposes of those benefits, employees of the community service boards shall not be employees of the state but shall be employees of the community service boards and, further, the state shall not be liable for any action, error, or omission of such employees.
    2. A community service board may employ or contract for legal counsel to assist in performing its duties and shall be authorized to appoint legal counsel to represent the community service board and its employees. The community service board may exercise any authority granted in Article 2 of Chapter 9 of Title 45, relating to the indemnification, defense, and insuring of members and employees of public bodies.

(Code 1981, §37-2-11.1, enacted by Ga. L. 1988, p. 1761, § 1; Ga. L. 1993, p. 1445, § 16; Ga. L. 1994, p. 437, § 7; Ga. L. 2002, p. 1324, § 1-7; Ga. L. 2009, p. 453, § 3-1/HB 228.)

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which amends this Code section, provides, in § 19.1, not codified by the General Assembly, that the amendment is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed the 1993 amendment to this Code section.

Law reviews.

- For article, "Torts," see 53 Mercer L. Rev. 441 (2001). For note, "Youngblood v. Gwinnett Rockdale Newton Community Service Board: The Sovereign Immunity of State Agencies Under the Georgia Constitution and the Georgia Tort Claims Act," see 53 Mercer L. Rev. 967 (2002).

JUDICIAL DECISIONS

Constitutionality.

- Because community service boards are agencies or departments of the state, accordingly, the legislature acted unconstitutionally when the legislature ignored Ga. Const. 1983, Art. I, Sec. II, Par. IX(e) and the express terms of the Georgia Tort Claims Act by enacting O.C.G.A. § 37-2-11.1(c)(1) so as to denominate these newly-created state agencies or departments as unclassified public entities to be accorded the same immunity as counties. Youngblood v. Gwinnett Rockdale Newton Cmty. Serv. Bd., 273 Ga. 715, 545 S.E.2d 875 (2001).

Issue as to employee's status for immunity.

- When, in a personal injury action against an employee of a community service board as an individual, there was a factual issue as to the employment status, if it was decided that the employee was not a state employee but was a board employee at the time of the collision, then it was necessary to resolve whether the employee's actions arose from the use of a motor vehicle covered by an insurance policy. Horton v. Whitaker, 238 Ga. App. 312, 518 S.E.2d 712 (1999).

Entitlement to immunity.

- Community service board and county mental retardation center were provided immunity pursuant to O.C.G.A. § 37-2-11.1(c)(2). Washington v. Department of Human Resources, 241 Ga. App. 319, 526 S.E.2d 354 (1999).

Employees of a county mental retardation center were not entitled to official immunity for ministerial acts performed in connection with their official duties. Washington v. Department of Human Resources, 241 Ga. App. 319, 526 S.E.2d 354 (1999).

Considering the public purpose for which the board was created, a community service board is a "state department or agency" entitled to raise the defense of sovereign immunity under Ga. Const. 1983, Art. I, Sec. II, Par. IX. Youngblood v. Gwinnett Rockdale Newton Cmty. Serv. Bd., 273 Ga. 715, 545 S.E.2d 875 (2001).

Community service board (CSB) was not entitled to Eleventh Amendment immunity against a former employee's Americans with Disabilities Act claims because: (1) for the purpose of litigation, the Georgia General Assembly, in O.C.G.A. § 37-2-11.1(c)(1) defined a CSB as being akin to a county, which was not an arm of the state entitled to immunity; and (2) when it came to debt and liability, a CSB was autonomous pursuant to O.C.G.A. § 37-2-6(a); although other factors cut in favor of CSB entitlement to Eleventh Amendment immunity, including the state's exercise of some control over a CSB pursuant to O.C.G.A. § 37-2-10(b) and a CSB partial state funding, such factors were afforded less weight by the court. Johnson v. Ogeechee Behavioral Health Servs., 479 F. Supp. 2d 1357 (S.D. Ga. 2007).

Because O.C.G.A. § 37-2-11.1 stated community service boards (CSB) were not agencies of the state or any specific county and that the boards had the same immunity as counties and counties were not arms of the state and did not have Eleventh Amendment immunity, the defendant, a CSB former employer, was not entitled to Eleventh Amendment immunity on a plaintiff former employee's discrimination claim. Peery v. Serenity Behavioral Health Sys., F. Supp. 2d (S.D. Ga. May 4, 2009).

OPINIONS OF THE ATTORNEY GENERAL

Representation of community board by legislator attorney.

- There is no per se conflict of interest for an attorney who serves in the General Assembly to represent and provide legal services to a community service board as defined in O.C.G.A. § 37-2-11.1. 1995 Op. Att'y Gen. No. U95-26.

37-2-11.2. Access by the department, Department of Human Services, Department of Public Health, Department of Community Health, or regional office to records of any program receiving public funds; confidentiality.

  1. Notwithstanding any other law to the contrary, to ensure the quality and integrity of patient and client care, any program receiving any public funds from, or subject to licensing, certification, or facility approval by, the department, the Department of Human Services, the Department of Public Health, the Department of Community Health, or a regional office shall be required to provide the department or the appropriate regional office or both, upon request, complete access to, including but not limited to authorization to examine and reproduce, any records required to be maintained in accordance with contracts, standards, or rules and regulations of the department, the Department of Human Services, the Department of Public Health, or the Department of Community Health or pursuant to the provisions of this title.
  2. Records obtained pursuant to subsection (a) of this Code section shall not be considered public records and shall not be released by the department, the Department of Human Services, the Department of Public Health, the Department of Community Health, or any regional office unless otherwise specifically authorized by law.
  3. The community service board shall maintain a clinical record for each consumer receiving treatment or habilitation services from such board. The treatment of clinical records of consumers in receiving services for mental illness shall be governed by the provisions of Code Section 37-3-166. The treatment of clinical records of consumers receiving habilitation services for developmental disabilities shall be governed by the provisions of Code Section 37-4-125. The treatment of clinical records of consumers in treatment for addictive diseases shall be governed by the provisions of Code Section 37-7-166.

(Code 1981, §37-2-11.2, enacted by Ga. L. 1991, p. 1059, § 1; Ga. L. 1993, p. 1445, § 16; Ga. L. 2002, p. 1324, § 1-7; Ga. L. 2009, p. 453, § 3-1/HB 228; Ga. L. 2011, p. 705, § 5-24/HB 214.)

The 2011 amendment, effective July 1, 2011, inserted "the Department of Public Health," in two places in subsection (a), and in subsection (b).

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which amends this Code section, provides, in § 19.1, not codified by the General Assembly, that the amendment is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed the 1993 amendment to this Code section.

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011).

37-2-12. Construction of chapter to avoid conflict with federal laws.

Repealed by Ga. L. 2002, p. 1324, § 1-7, effective July 1, 2002.

Editor's notes.

- This Code section was based on Code 1981, § 37-2-12, enacted by Ga. L. 1986, p. 1213, § 1; Ga. L. 1993, p. 1445, § 16.

ARTICLE 2 ADMINISTRATION OF MENTAL DISABILITY SERVICES

Editor's notes.

- The previous provisions of this article relating to the State Commission on Mental Health, Mental Retardation, and Substance Abuse Service Delivery formerly consisted of Code Sections37-2-30 through37-2-34 and was based on Code 1981, §§ 37-2-30 through37-2-34, enacted by Ga. L. 1992, p. 1357, § 1; Ga. L. 1993, p. 1445, § 17; Ga. L. 1994, p. 437, § 8, and was repealed by Ga. L. 1993, p. 1445, § 18, effective December 1, 1994.

Ga. L. 2008, p. 133, §§ 1, 2/HB 535, effective July 1, 2008, repealed the Code sections formerly codified at this article and enacted the current article. The former article consisted of Code Sections37-2-30 through37-2-44, relating to administration of mental disability services, and was based on Code 1981, §§ 37-2-30 through37-2-44, enacted by Ga. L. 2000, p. 440, § 1; Ga. L. 2002, p. 1324, § 1-8.

Ga. L. 2008, p. 133, § 4/HB 535, provided that Parts 1 and 2 of Article 2 of this chapter became effective only if funds were specifically appropriated for purposes of each part in an Appropriations Act making specific reference to that part and became effective when funds so appropriated became available for expenditure. Funds were not appropriated at the 2008 or 2009 sessions of the General Assembly. However, Ga. L. 2010, p. 286, § 24/SB 244, effective July 1, 2010, repealed Ga. L. 2008, p. 133, § 4/HB 535.

PART 1 O FFICE OF DISABILITY SERVICES OMBUDSMAN

Editor's notes.

- Ga. L. 2008, p. 133, § 4(1)/HB 535, provided that this part became effective only if funds were specifically appropriated for purposes of this part in an Appropriations Act making specific reference to this part and became effective when funds so appropriated became available for expenditure. Funds were not appropriated at the 2008 or 2009 sessions of the General Assembly. However, Ga. L. 2010, p. 286, § 24/SB 244, effective July 1, 2010, repealed Ga. L. 2008, p. 133, § 4/HB 535.

37-2-30. Definitions.

As used in this article, the term:

  1. "Advance directive for health care" means a written document voluntarily executed by a patient in accordance with the requirements of Code Section 31-32-5.
  2. "Clinical record" means a written record pertaining to an individual consumer and shall include all medical records, progress notes, charts, admission and discharge data, and all other information which is recorded by a services provider or other entities responsible for a consumer's care and treatment under this chapter and which pertains to the consumer's hospitalization, treatment, or habilitation.
  3. "Consumer" means a natural person who has been or is a recipient of disability services as defined in Code Section 37-1-1 and shall include natural persons who are seeking disability services.
  4. "Durable power of attorney for health care" means a written document voluntarily executed by an individual creating a health care agency in accordance with Chapter 36 of Title 31, as such chapter existed on and before June 30, 2007.
  5. "Estate representative" means an executor, executrix, administrator, or administratrix of the estate of a deceased consumer.
  6. "Guardian" shall have the same meaning as provided in Code Section 29-1-1.
  7. "Health care agent" means an agent under a durable power of attorney for health care or health care agent under an advance directive for health care.
  8. "Office" means the office of disability services ombudsman created pursuant to subsection (a) of Code Section 37-2-31.
  9. "Ombudsman" means the disability services ombudsman appointed as provided for in Code Section 37-2-32.
  10. "Rights" means such rights as provided by statute, rule, or regulation for a consumer of a services provider.
  11. "Services provider" means a public or private person, corporation, or business which provides disability services operated by the division, under letter of agreement with the division, or under contract with the division.
  12. "Safety" means freedom from physical harm.
  13. "Well-being" means quality of life of a consumer, including the environment of care.

(Code 1981, §37-2-30, enacted by Ga. L. 2008, p. 133, § 3/HB 535; Ga. L. 2009, p. 453, § 3-11/HB 228.)

37-2-31. Creation of office of disability services ombudsman.

  1. There is created the office of disability services ombudsman. The chief officer of such office shall be the ombudsman.
  2. The office and the ombudsman shall:
    1. Be charged with promoting the safety, well-being, and rights of consumers;
    2. Have the powers and duties set forth in this article; and
    3. Act independently of any state official, department, or agency in the performance of duties.
  3. The office and ombudsman shall be assigned to the office of the Governor for administrative purposes only.

(Code 1981, §37-2-31, enacted by Ga. L. 2008, p. 133, § 3/HB 535.)

37-2-32. Nominating committee to identify qualified candidates for ombudsman; committee membership; terms of service of ombudsman.

  1. A nominating committee appointed by the Governor shall identify at least three qualified persons to serve as ombudsman. In making the appointment of the ombudsman, the Governor shall consider, but not be limited to, the nominations furnished by the nominating committee. The ombudsman shall have knowledge and experience concerning the safety, well-being, and rights of consumers and shall have the skills to perform the duties set forth in this article.
  2. The nominating committee shall have at least five members, who are residents of this state, appointed by the Governor and selected from the following:
    1. A former consumer of the division;
    2. A current consumer of the division;
    3. A representative of the department;
    4. A representative of an advocacy organization for consumers;
    5. A representative of law enforcement;
    6. A licensed psychiatrist;
    7. A psychologist;
    8. A registered professional nurse; and
    9. A representative of the executive branch of the state government of Georgia.
  3. Three members of the committee shall constitute a quorum. The nominating committee shall elect from among the members a chairperson and a vice chairperson.
  4. The ombudsman shall serve a term of five years and until his or her successor is appointed and qualified. The ombudsman may be reappointed. No person shall serve as ombudsman while holding another public office or while being an owner or operator of a services provider or in the employ of or under contract with a services provider; nor shall such person be a spouse, parent, or child of such an owner, operator, employee, or contractor.

(Code 1981, §37-2-32, enacted by Ga. L. 2008, p. 133, § 3/HB 535.)

37-2-33. Powers of ombudsman.

  1. The ombudsman may appoint such deputy ombudsmen and staff as may be deemed necessary to effectively fulfill the purposes of this article and establish the compensation thereof, within the limits of the funds available for the purposes of the ombudsman. The duties of the deputy ombudsmen and staff may include the duties and powers of the ombudsman if performed under the direction of the ombudsman. The deputy ombudsmen shall be removable at the discretion of the ombudsman.
  2. The ombudsman shall have the authority to contract with experts in fields including but not limited to medicine, psychology, child development, mental or emotional illness, developmental disability, addictive disease, and child welfare, as needed to support the work of the ombudsman, utilizing funds appropriated for the purposes of the ombudsman.

(Code 1981, §37-2-33, enacted by Ga. L. 2008, p. 133, § 3/HB 535.)

37-2-34. Ombudsman and other office personnel deemed members of department work force for certain purposes.

The ombudsman and persons employed by or acting as agents of the ombudsman shall be deemed members of the work force of the department solely for the purposes of:

  1. Allowing the department to disclose confidential clinical records and protected health information to the ombudsman as provided for in Code Section 37-2-36;
  2. Protecting confidential clinical records and protected health information from further disclosure through or by the ombudsman and the office of the ombudsman; and
  3. Ensuring the department's compliance with the federal Health Insurance Portability and Accountability Act of 1996, P.L. 104-191, and the Standards for Privacy of Individually Identifiable Health Information promulgated pursuant thereto.

(Code 1981, §37-2-34, enacted by Ga. L. 2008, p. 133, § 3/HB 535.)

37-2-35. Duties of ombudsman.

The ombudsman shall:

  1. Establish priorities, policies and procedures for receiving, investigating, referring, and attempting to resolve complaints made by or on behalf of consumers concerning any act, omission to act, practice, policy, or procedure of a services provider that may adversely affect the safety, well-being, and rights of consumers and any policies and procedures necessary to implement the provisions of this article;
  2. Investigate and make reports and recommendations to the department and other appropriate agencies concerning any act or failure to act by any services provider with respect to the safety, well-being, and rights of consumers and is authorized to:
    1. Prioritize investigations, reporting, and recommendations based on the seriousness and pervasiveness of the alleged act or failure to act; and
    2. Refer to the services provider those complaints deemed appropriate for resolution by the services provider;
  3. Establish a uniform state-wide complaint process;
  4. Collect and record data relating to complaints and findings with regard to services providers and analyze such data in order to identify adverse effects upon the safety, well-being, and rights of consumers;
  5. Promote the interests of consumers before governmental agencies and seek administrative and other remedies to protect the safety, well-being, and rights of consumers by:
    1. Analyzing, commenting on, and monitoring the development and implementation of federal, state, and local laws, regulations, and other governmental policies and actions that pertain to the safety, well-being, and rights of consumers; and
    2. Recommending any changes in such laws, regulations, policies, and actions as the ombudsman determines to be appropriate;
  6. Make a biennial written report documenting the types of complaints and problems reported by consumers and others on their behalf and include recommendations concerning needed policy, regulatory, and legislative changes. The biennial report shall be submitted to the Governor, the General Assembly, the commissioner, and other appropriate agencies and organizations and made available to the public. The ombudsman shall not be required to distribute copies of the biennial report to the members of the General Assembly but shall notify the members of the availability of the report in the manner which he or she deems to be most effective and efficient. The report shall not identify any consumer by name or by implication without the express written consent of the consumer, or if applicable the parent of a minor consumer, the guardian of the consumer, or the health care agent of the consumer if the agent is so authorized to make such a decision and the consumer is unable to do so; and
  7. Serve as a member of the medical review group established pursuant to Code Section 37-2-45.

(Code 1981, §37-2-35, enacted by Ga. L. 2008, p. 133, § 3/HB 535.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2008, "biennial" was substituted for "annual" in the third sentence of paragraph (6).

37-2-36. Investigations.

  1. The ombudsman on his or her initiative or in response to complaints made by or on behalf of consumers may conduct investigations in matters within his or her powers and duties as provided by this article.
  2. The ombudsman shall have the authority to enter any facility, premises, or property where disability services are provided. Upon entering such facility, premises, or property, the ombudsman shall notify the administrator or, in the absence of the administrator, the person in charge of such facility, premises, or property before speaking to any consumer. After notifying the administrator or the person in charge of such facility, premises, or property, the ombudsman may communicate privately and confidentially with consumers in such facility, premises, or property individually or in groups.
  3. The ombudsman shall have the authority to inspect the entire facility, premises, or property and have access to the administrative records, policies, and documents of the facility, premises, or property. Entry and investigation as provided by this Code section shall be conducted in a manner which will not significantly disrupt the provision of disability services to consumers.
  4. The ombudsman shall have access to the clinical records of any consumer if:
    1. The ombudsman has written consent of the consumer, or if applicable the parent of a minor consumer, the guardian of the consumer, or the health care agent of the consumer if the agent is authorized to make such a decision and the consumer is unable to do so; or
    2. The consumer lacks the capacity to consent to the review and has no guardian of the consumer or health care agent who is authorized to make such a decision.
  5. The ombudsman shall identify himself or herself as such to the consumer, and the consumer shall have the right to communicate or refuse to communicate with the ombudsman.
  6. The consumer, the parent of a minor consumer, the consumer's guardian, or the health care agent of the consumer if the health care agent is authorized to make such a decision and the consumer is unable to do so, shall have the right to participate in planning any course of action to be taken on the consumer's behalf by the ombudsman, and the consumer, parent of a minor consumer, guardian, or health care agent of the consumer if the agent is so authorized, shall have the right to approve or disapprove any proposed action to be taken on the consumer's behalf by the ombudsman.
  7. The ombudsman shall have the authority to obtain from any department, governmental agency, or services provider, and such department, agency, or services provider shall provide cooperation and assistance, services, data, and access to, such files and records as will enable the ombudsman properly to perform his or her duties and exercise his or her powers, provided that such information is not privileged under any law.
  8. The ombudsman shall report for investigative purposes any and all:
    1. Suspected criminal activity to the appropriate law enforcement agency;
    2. Suspected abuse, neglect, exploitation, or abandonment of a consumer by any person to the appropriate federal or state regulatory authority; and
    3. Suspected violations of any professional code of conduct to the appropriate licensing board.
  9. The ombudsman shall provide information and procedural guidance to any person who requests assistance in making a report of suspected abuse, neglect, exploitation, or abandonment of a consumer by any person:
    1. To the appropriate law enforcement agency if criminal activity is suspected; or
    2. To the appropriate federal or state regulatory authority if abuse, neglect, exploitation, or abandonment of a consumer is suspected.

(Code 1981, §37-2-36, enacted by Ga. L. 2008, p. 133, § 3/HB 535.)

37-2-37. Investigation report; referrals to division and other appropriate agencies.

  1. Following an investigation, the ombudsman shall report his or her opinions or recommendations to the following, as applicable: the consumer, parent of a minor consumer, guardian of the consumer, health care agent of the consumer, estate representative, services provider, and the division and shall attempt to resolve the complaint using, whenever possible, informal techniques of mediation and conciliation. With respect to a complaint against the services provider, the ombudsman shall first notify the administrator or person in charge of that services provider in writing and give such person a reasonable opportunity to correct any alleged defect. If so notified and the administrator or person in charge fails to take corrective action after a reasonable amount of time or if the defect seriously threatens the safety or well-being of any consumer, the ombudsman may refer the complaint to the division and any other appropriate agency.
  2. Complaints or conditions adversely affecting consumers which cannot be resolved in the manner described in subsection (a) of this Code section shall, whenever possible, be referred by the ombudsman to the division and any other appropriate agency.

(Code 1981, §37-2-37, enacted by Ga. L. 2008, p. 133, § 3/HB 535.)

37-2-38. Confidentiality; disclosure of information.

  1. The identity of any complainant or individual providing information on behalf of the consumer or complainant relevant to the investigation of a complaint shall be confidential and shall not be disclosed without the express written permission of such person, unless such disclosure is necessary for the department or services provider to protect the safety, well-being, or rights of a consumer; provided, however, that if the complaint becomes the subject of a judicial or administrative proceeding, the identity of such persons may be disclosed for the purpose of the proceeding.
  2. The identity of any and all consumers involved in or mentioned in an investigation, whether as a complainant or otherwise, shall be confidential and shall not be disclosed without the express written consent of the consumer or a person legally authorized to consent for the consumer.

(Code 1981, §37-2-38, enacted by Ga. L. 2008, p. 133, § 3/HB 535.)

37-2-39. Notice of complaint procedure.

The ombudsman shall prepare and distribute to each services provider in the state a written notice describing the procedure to follow in making a complaint, including the address and telephone number of the office and the ombudsman. The administrator or person in charge of such services provider shall give the written notice required by this Code section to each consumer who receives disability services from such services provider and the consumer's guardian, parent of a minor consumer, or health care agent, if any, upon first providing such disability services. The administrator or person in charge of such services provider shall also post such written notice in conspicuous public places in the facility, premises, or property in which disability services are provided in accordance with procedures provided by the ombudsman and shall give such notice to any consumer and his or her guardian, parent of a minor consumer, or health care agent, if any, who did not receive it upon the consumer's first receiving disability services.

(Code 1981, §37-2-39, enacted by Ga. L. 2008, p. 133, § 3/HB 535.)

37-2-40. Discrimination or retaliation prohibited; sanctions.

  1. No person shall discriminate or retaliate in any manner against any consumer, relative of a consumer, guardian or health care agent of a consumer, any employee of a services provider, or any other person for making a complaint or providing information in good faith to the ombudsman.
  2. Any person violating this Code section shall be guilty of a misdemeanor.

(Code 1981, §37-2-40, enacted by Ga. L. 2008, p. 133, § 3/HB 535.)

37-2-41. Federal financial participation; documentation.

The ombudsman and commissioner shall obtain federal financial participation for eligible activity by the ombudsman. The ombudsman shall maintain and transmit to the department documentation that is necessary in order to obtain federal funds which shall be applied to the budget of the ombudsman.

(Code 1981, §37-2-41, enacted by Ga. L. 2008, p. 133, § 3/HB 535.)

37-2-42. Immunity from civil and criminal liability for providing certain information to ombudsman.

No person providing information, including but not limited to a consumer's records, to the ombudsman shall be held, by reason of having provided such information, to have violated any criminal law or to be civilly liable under any law unless such information is false and the person providing such information knew or had reason to believe that it was false.

(Code 1981, §37-2-42, enacted by Ga. L. 2008, p. 133, § 3/HB 535.)

37-2-43. Immunity from civil and criminal liability for filing complaint; ombudsman's immunity for actions related to discharge of duties.

  1. Any person who makes a complaint or provides information relating to a complaint as authorized in this article shall incur no civil or criminal liability therefor unless such complaint or information is false and the person making such complaint or providing such information knew or had reason to believe that it was false.
  2. The ombudsman and employees of the office of ombudsman shall be held harmless, including legal fees and costs, if any, in any claim, demand, or suit for damages resulting from acts or omissions committed in the discharge of his or her duties for any action taken under this article if the action was taken in good faith, was within the scope of the ombudsman's authority, and did not constitute willful or reckless misconduct.

(Code 1981, §37-2-43, enacted by Ga. L. 2008, p. 133, § 3/HB 535.)

37-2-44. Statutory construction.

Nothing in this article shall be construed to limit the power of the department to investigate complaints where otherwise authorized by law.

(Code 1981, §37-2-44, enacted by Ga. L. 2008, p. 133, § 3/HB 535.)

37-2-45. Medical review group to review the deaths of consumers.

  1. The Governor shall appoint a medical review group to conduct medical reviews of all deaths of consumers in state hospitals or state operated community residential services, which shall serve at the pleasure of the Governor. The medical review group shall consist of the ombudsman and four board certified physicians, one of whom shall be a psychiatrist. Three members of the medical review group shall constitute a quorum. The ombudsman shall serve as the chairperson and shall appoint a vice chairperson.
  2. The physician members of the medical review group shall receive such compensation, if any, as may be fixed by the Governor. Such physician members shall be reimbursed for expenses incurred by them in performance of their duties such as transportation, lodging, and subsistence, at the same rate as members of the General Assembly.
  3. The medical review group:
    1. Shall be a review organization and shall conduct reviews of deaths of consumers in state hospitals and state operated community residential services as peer reviews pursuant to Article 6 of Chapter 7 of Title 31;
    2. Shall review, within 60 days of notice of the death, all deaths of consumers:
      1. Occurring on site of a state hospital or state operated community residential services providing services under this title;
      2. In the company of staff of a state hospital or state operated community residential services providing services under this title; or
      3. Occurring within two weeks following the consumer's discharge from a state hospital or state operated community residential services;
    3. Shall have access to all clinical records of the consumer, all investigations conducted by the department, state hospitals, or state operated community residential services regarding the death, and all reviews of the death, including peer reviews;
    4. May interview staff of the state hospitals and state operated community residential services, and other persons involved in the events immediately preceding and involving the death;
    5. Shall determine whether the death was the result of natural causes or may have resulted from other than natural causes;
    6. Shall determine whether the death requires further investigation or review;
    7. May make confidential recommendations to the ombudsman, the department, the division, the state hospitals, and state operated community residential services regarding consumer treatment and care, policies, and procedures, which may assist in the prevention of deaths; and
    8. Shall report to the appropriate law enforcement agency any suspected criminal activity or suspected abuse and shall report any suspected violation of any professional code of conduct to the appropriate licensing board.
  4. All peer review records submitted to or produced or created by the medical review group and the findings and recommendations of the medical review group, except for the quarterly reports, shall remain confidential and shall not be considered public records under Article 4 of Chapter 18 of Title 50.

(Code 1981, §37-2-45, enacted by Ga. L. 2008, p. 133, § 3/HB 535.)

37-2-46. Notification of consumer's death; time limits.

  1. Within 24 hours after a consumer suffers death, the division, governmental agency, or services provider shall notify the ombudsman of such death; provided, however, that for a death occurring within two weeks following the consumer's discharge from a state hospital or state operated community residential services, the division, governmental agency, or services provider shall notify the ombudsman of such death within 24 hours of knowledge of such death.
  2. The medical reviews of deaths in state hospitals and state operated community residential services as provided for in Code Section 37-2-45 shall not be limited by the type of disability services received or applied for by the consumer at any time after the effective date of this part and such reviews shall be of the death of all consumers, the provisions of Code Section 37-2-47 notwithstanding.

(Code 1981, §37-2-46, enacted by Ga. L. 2008, p. 133, § 3/HB 535.)

37-2-47. Scope of part.

Commencing with the calendar month immediately following the month in which this part becomes effective, for the purposes of this article, the office and the ombudsman shall receive, investigate, refer, and attempt to resolve complaints made by or on behalf of only those consumers with mental or emotional illness, consumers with mental or emotional illness and co-occurring developmental disability, and consumers with mental or emotional illness and co-occurring addictive disease.

(Code 1981, §37-2-47, enacted by Ga. L. 2008, p. 133, § 3/HB 535.)

PART 2 A DDITIONAL POWERS AND DUTIES

Editor's notes.

- Ga. L. 2008, p. 133, § 4(2)/HB 535, provided that this part became effective only if funds were specifically appropriated for purposes of this part in an Appropriations Act making specific reference to this part and became effective when funds so appropriated became available for expenditure. Funds were not appropriated at the 2008 or 2009 sessions of the General Assembly. However, Ga. L. 2010, p. 286, § 24/SB 244, effective July 1, 2010, repealed Ga. L. 2008, p. 133, § 4/HB 535.

37-2-50. Additional powers and duties.

Commencing with the calendar month immediately following the month in which this part becomes effective, for the purposes of this article, the office and ombudsman shall, in addition to those powers and duties provided by Code Section 37-2-47, receive, investigate, refer, and attempt to resolve complaints made by or on behalf of all consumers with developmental disability or addictive disease.

(Code 1981, §37-2-50, enacted by Ga. L. 2008, p. 133, § 3/HB 535.)

CHAPTER 3 EXAMINATION, TREATMENT, ETC., FOR MENTAL ILLNESS

Article 1 General Provisions.
Article 2 Hospitalization and Treatment of Voluntary Patients.
Article 3 Examination, Hospitalization, and
Treatment of Involuntary Patients.
Part 1 Emergency Receiving Facilities for
Examination of Persons Appre- hended Pursuant to
Physician's Certi- ficate, Court
Order, etc. Part 2
Evaluating Facilities for Exam- ination of Persons Ordered
to Undergo Evaluation for
Mental Illness. Part 3
Determination of Need for Treatment, Admission to
Treatment Facilities Part 4

I NVOLUNTARY OUTPATIENT CARE

Article 4 Placement, Transfer, and Transpor-
tation of Patients Generally.
Article 5 Payment of Expenses of Patient Care and Transportation Generally.
Article 6 Rights and Privileges of Patients,
Their Representatives, etc., Generally.
Part 1 GENERAL PROVISIONS.
Part 2 Rights and Privileges as to Manner
of Care and Treatment and as to Maintenance and Release
of Clinical Records. Cross references. - Mental incompetency and dependency for juveniles, T. 15, C. 11, A. 4.

Plea in criminal case that defendant was insane or mentally incompetent at time act committed or is mentally incompetent to stand trial, § 17-7-130 et seq.

Protective services for abused, neglected, or exploited disabled adults, T. 30, C. 5.

Reporting of abuse or exploitation of residents of long-term care facilities, § 31-8-80 et seq.

Rights of persons residing in long-term care facilities generally, § 31-8-100 et seq.

Licensing of applied psychologists, T. 43, C. 39.

Administrative Rules and Regulations.

- Rules and regulations on "Mental Health and Mental Retardation and Substance Abuse," Official Compilation of the Rules and Regulations of the State of Georgia, Department of Human Resources, Chapters 290-4-1 and 290-4-3 et seq.

Adult crisis stabilization units, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Behavioral Health and Developmental Disabilities, Chapter 82-3-1.

Children and adolescent crisis stabilization units, Official Compilation of the Rules and Regulations of the State or Georgia, Department of Behavioral Health and Disabilities, Chapter 82-4-1.

Law reviews.

- For article, "Signing into Heaven: Zinermon v. Burch, Federal Rights, and State Remedies Thirty Years After Monroe v. Pape," see 40 Emory L.J. 1 (1991). For note on commitment and release of persons found not guilty by reason of insanity, see 15 Ga. L. Rev. 1065 (1981). For comment, "Having an Affair May Shorten Your Life: The Ashley Madison Suicides," see 33 Georgia St. U. L. Rev. 455 (2017).

JUDICIAL DECISIONS

Retention of jurisdiction by court when defendant committed after plea of insanity.

- When the defendant enters a plea of not guilty by reason of insanity, which is accepted, and the court commits the defendant to a hospital for treatment, the committing court retains jurisdiction of the acquitted-committed defendant. Moses v. State, 167 Ga. App. 556, 307 S.E.2d 35 (1983), overruled on other grounds, Nagel v. State, 262 Ga. 888, 427 S.E.2d 490 (1993).

Commitment of pretrial detainee.

- Superior court has authority to civilly commit a pretrial detainee who is incompetent to stand trial, as long as the court utilizes the criteria and procedures set forth in Chapter 3 of Title 37 in making the court's decision. Department of Human Resources v. Long, 217 Ga. App. 763, 458 S.E.2d 914 (1995).

Cited in Whitfield v. State, 158 Ga. App. 660, 281 S.E.2d 643 (1981); Clayton v. State, 160 Ga. App. 908, 288 S.E.2d 621 (1982); Benham v. Ledbetter, 609 F. Supp. 125 (N.D. Ga. 1985), aff'd, 785 F.2d 1480 (1986).

RESEARCH REFERENCES

Wrongful Confinement to a Mental Health or Developmental Disabilities, 44 POF3d 217.

Incompetency and Commitment Proceedings, 8 Am. Jur. Trials 483.

Representing the Mentally Ill: Civil Commitment Proceedings, 26 Am. Jur. Trials 97.

ALR.

- Physical or mental illness as basis of dismissal of student from school, college, or university, 17 A.L.R.4th 519.

Appealability of state criminal court order requiring witness other than accused to undergo psychiatric examination, 17 A.L.R.4th 867.

Liability of doctor, psychiatrist, or psychologist for failure to take steps to prevent patient's suicide, 17 A.L.R.4th 1128.

Power of court, in absence of statute, to order psychiatric examination of accused for purpose of determining mental condition at time of alleged offense, 17 A.L.R.4th 1274.

Hospital's liability for mentally deranged patient's self-inflicted injuries, 36 A.L.R.4th 117.

ARTICLE 1 GENERAL PROVISIONS

37-3-1. Definitions.

As used in this chapter, the term:

(.1) "Available outpatient treatment" means outpatient treatment, either public or private, available in the patient's community, including but not limited to supervision and support of the patient by family, friends, or other responsible persons in that community. Outpatient treatment at state expense shall be available only within the limits of state funds specifically appropriated therefor.

  1. "Chief medical officer" means the physician with overall responsibility for patient treatment at any facility receiving patients under this chapter or a physician appointed in writing as the designee of such chief medical officer.
  2. "Clinical record" means a written record pertaining to an individual patient and shall include all medical records, progress notes, charts, admission and discharge data, and all other information which is recorded by a facility or other entities responsible for a patient's care and treatment under this chapter and which pertains to the patient's hospitalization and treatment. Such other information as may be required by rules and regulations of the board shall also be included.
  3. "Community mental health center" means an organized program for the care and treatment of the mentally ill operated by a community service board or other appropriate public provider.
  4. "Court" means:
    1. In the case of an individual who is 17 years of age or older, the probate court of the county of residence of the patient or the county in which such patient is found. Notwithstanding Code Section 15-9-13, in any case in which the judge of such court is unable to hear a case brought under this chapter within the time required for such hearing or is unavailable to issue the order specified in subsection (b) of Code Section 37-3-41, such judge shall appoint a person to serve and exercise all the jurisdiction of the probate court in such case. Any person so appointed shall be a member of the State Bar of Georgia and shall be otherwise qualified for his duties by training and experience. Such appointment may be made on a case-by-case basis or by making a standing appointment of one or more persons. Any person receiving such standing appointment shall serve at the pleasure of the judge making the appointment or his successor in office to hear such cases if and when necessary. The compensation of a person so appointed shall be as agreed upon by the judge who makes the appointment and the person appointed with the approval of the governing authority of the county for which such person is appointed and shall be paid from the county funds of said county. All fees collected for the services of such appointed person shall be paid into the general funds of the county served; or
    2. In the case of an individual who is under the age of 17 years, the juvenile court of the county of residence of the patient or the county in which such patient is found.
  5. "Emergency receiving facility" means a facility designated by the department to receive patients under emergency conditions as provided in Part 1 of Article 3 of this chapter.
  6. "Evaluating facility" means a facility designated by the department to receive patients for psychiatric evaluation as provided in Part 2 of Article 3 of this chapter.
  7. "Facility" means any state owned or state operated hospital, community mental health center, or other facility utilized for the diagnosis, care, treatment, or hospitalization of persons who are mentally ill; any facility operated or utilized for such purpose by the United States Department of Veterans Affairs or other federal agency; and any other hospital or facility within the State of Georgia approved for such purpose by the department.
  8. "Full and fair hearing" or "hearing" means a proceeding before a hearing examiner under Code Section 37-3-83 or Code Section 37-3-93 or before a court as defined in paragraph (4) of this Code section. The hearing may be held in a regular courtroom or in an informal setting, in the discretion of the hearing examiner or the court, but the hearing shall be recorded electronically or by a qualified court reporter. The patient shall be provided with effective assistance of counsel. If the patient cannot afford counsel, the court shall appoint counsel for him or the hearing examiner shall have the court appoint such counsel; provided, however, that the patient shall have the right to refuse in writing the appointment of counsel, in the discretion of the hearing examiner or the court. The patient shall have the right to confront and cross-examine witnesses and to offer evidence. The patient shall have the right to subpoena witnesses and to require testimony before the hearing examiner or in court in person or by deposition from any physician upon whose evaluation the decision of the hearing examiner or the court may rest. The patient shall have the right to obtain a continuance for any reasonable time for good cause shown. The hearing examiner and the court shall apply the rules of evidence applicable in civil cases. The burden of proof shall be upon the party seeking treatment of the patient. The standard of proof shall be by clear and convincing evidence. At the request of the patient, the public may be excluded from the hearing. The patient may waive his right to be present at the hearing, in the discretion of the hearing examiner or the court. The reason for the action of the court or hearing examiner in excluding the public or permitting the hearing to proceed in the patient's absence shall be reflected in the record.
  9. "Individualized service plan" means a proposal developed during a patient's stay in a facility and which is specifically tailored to the individual patient's treatment needs. Each plan shall clearly include the following:

    (9.1) "Inpatient" means a person who is mentally ill and:

    1. A statement of treatment goals or objectives, based upon and related to a proper evaluation, which can be reasonably achieved within a designated time interval;
    2. Treatment methods and procedures to be used to obtain these goals, which methods and procedures are related to these goals and which include a specific prognosis for achieving these goals;
    3. Identification of the types of professional personnel who will carry out the treatment and procedures, including appropriate medical or other professional involvement by a physician or other health professional properly qualified to fulfill legal requirements mandated under state and federal law;
    4. Documentation of patient involvement and, if applicable, the patient's accordance with the service plan; and
    5. A statement attesting that the chief medical officer has made a reasonable effort to meet the plan's individualized treatment goals in the least restrictive environment possible closest to the patient's home community.
      1. Who presents a substantial risk of imminent harm to that person or others, as manifested by either recent overt acts or recent expressed threats of violence which present a probability of physical injury to that person or other persons; or
      2. Who is so unable to care for that person's own physical health and safety as to create an imminently life-endangering crisis; and
    6. Who is in need of involuntary inpatient treatment.

    (9.2) "Inpatient treatment" or "hospitalization" means a program of treatment for mental illness within a hospital facility setting.

    (9.3) "Involuntary treatment" means inpatient or outpatient treatment which a patient is required to obtain pursuant to this chapter.

  10. "Least restrictive alternative," "least restrictive environment," or "least restrictive appropriate care and treatment" means that which is the least restrictive available alternative, environment, or care and treatment, respectively, within the limits of state funds specifically appropriated therefor.
  11. Reserved.
  12. "Mentally ill person requiring involuntary treatment" means a mentally ill person who is an inpatient or an outpatient.

    (12.1) "Outpatient" means a person who is mentally ill and:

    1. Who is not an inpatient but who, based on the person's treatment history or current mental status, will require outpatient treatment in order to avoid predictably and imminently becoming an inpatient;
    2. Who because of the person's current mental status, mental history, or nature of the person's mental illness is unable voluntarily to seek or comply with outpatient treatment; and
    3. Who is in need of involuntary treatment.

    (12.2) "Outpatient treatment" means a program of treatment for mental illness outside a hospital facility setting which includes, without being limited to, medication and prescription monitoring, individual or group therapy, day or partial programming activities, case management services, and other services to alleviate or treat the patient's mental illness so as to maintain the patient's semi-independent functioning and to prevent the patient's becoming an inpatient.

  13. "Patient" means any mentally ill person who seeks treatment under this chapter or any person for whom such treatment is sought.
  14. "Private facility" means any hospital facility that is a proprietary hospital or a hospital operated by a nonprofit corporation or association approved for the purposes of this chapter, as provided herein, or any hospital facility operated by a hospital authority created pursuant to the "Hospital Authorities Law," Article 4 of Chapter 7 of Title 31.

    (14.1) "Psychologist" means a licensed psychologist who meets the criteria of training and experience as a health service provider psychologist as provided in Code Section 31-7-162.

  15. "Representatives" means the persons appointed as provided in Code Section 37-3-147 to receive notice of the proceedings for voluntary or involuntary treatment.
  16. "Superintendent" means the chief administrative officer who has overall management responsibility at any facility receiving patients under this chapter, other than a regional state hospital or state owned or operated community program, or an individual appointed as the designee of such superintendent.

    (16.1) "Traumatic brain injury" means a traumatic insult to the brain and its related parts resulting in organic damage thereto which may cause physical, intellectual, emotional, social, or vocational changes in a person. It shall also be recognized that a person having a traumatic brain injury may have organic damage or physical or social disorders, but for the purposes of this chapter, traumatic brain injury shall not be considered mental illness.

  17. "Treatment" means care, diagnostic and therapeutic services, including the administration of drugs, and any other service for the treatment of an individual.
  18. "Treatment facility" means a facility designated by the department to receive patients for psychiatric treatment as provided in Code Sections 37-3-80 through 37-3-84.

(Ga. L. 1958, p. 697, § 1; Ga. L. 1960, p. 837, § 1; Code 1933, § 88-501, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1969, p. 505, § 1; Ga. L. 1978, p. 1789, § 1; Ga. L. 1979, p. 723, §§ 1-3; Ga. L. 1982, p. 3, § 37; Ga. L. 1986, p. 1098, § 1; Ga. L. 1989, p. 1566, § 3; Ga. L. 1990, p. 45, § 1; Ga. L. 1991, p. 1059, § 8; Ga. L. 1992, p. 1902, § 1; Ga. L. 1993, p. 1445, § 17.1; Ga. L. 2002, p. 1324, §§ 1-9, 1-10; Ga. L. 2009, p. 453, § 3-12/HB 228; Ga. L. 2010, p. 286, § 8/SB 244.)

The 2010 amendment, effective July 1, 2010, deleted "as defined in paragraph (11) of this Code section" following "illness" at the end of paragraph (16.1).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2009, the paragraph (11) designation, which was inadvertently stricken by the 2009 amendment, was added.

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which amends this Code section, provides, in § 19.1, not codified by the General Assembly, that the amendment is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed the 1993 amendment to this Code section.

Law reviews.

- For note, "The Parity Cure: Solving Unequal Treatment of Mental Illness Health Insurance Through Federal Legislation," see 44 Ga. L. Rev. 511 (2010). For comment, "1986 Amendments to Georgia's Mental Health Statutes: The Latest Attempt to Provide a Solution to the Problem of the Chronically Mentally Ill," see 36 Emory L.J. 1313 (1987).

JUDICIAL DECISIONS

Insane and mentally ill synonymous.

- Person who is insane, i.e., who is not legally responsible for the person's own actions because the person cannot distinguish between right and wrong, is mentally ill under this definition. Clark v. State, 151 Ga. App. 853, 261 S.E.2d 764 (1979), aff'd, 245 Ga. 629, 266 S.E.2d 466 (1980).

Psychiatrist has "no control" over a voluntary outpatient.

- When the patient was a voluntary outpatient, the psychiatrist had no control of the patient in the sense that the psychiatrist could claim legal authority to confine or restrain the patient against the patient's will unless the patient met the criteria for involuntary commitment set forth in O.C.G.A. § 37-3-1 and the patient had not acquiesced in the treatment plan prescribed by the psychiatrist, the psychiatrist could not have unilaterally imposed the treatment plan upon the patient except in the most extraordinary circumstances. Ermutlu v. McCorkle, 203 Ga. App. 335, 416 S.E.2d 792, cert. denied, 203 Ga. App. 906, 416 S.E.2d 792 (1992).

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 court was authorized to find that the criteria for civil commitment had been met. Pitts v. State, 151 Ga. App. 691, 261 S.E.2d 435 (1979).

Although a defendant had not exhibited any violent tendencies or done anything to harm anyone while the defendant was in the custody of the Department of Human Resources (now known as the Department of Behavioral Health and Developmental Disabilities for these purposes), in light of the finding of insanity that was made after the defendant entered a plea of not guilty by reason of insanity to two stalking charges, the presumption under former O.C.G.A. § 24-4-21 (see now O.C.G.A. § 24-14-21) that the insanity existed thereafter, the evidence that subsequent to the criminal trial, the defendant had been diagnosed with schizophrenia, and the defendant's failure to present much in the way of evidence that the defendant was sane, the defendant's civil commitment was not improper under O.C.G.A. § 37-3-1(9.1). Bonney v. State, 295 Ga. App. 706, 673 S.E.2d 102 (2009).

Trial court did not err in denying the defendant's petition for release from inpatient involuntary treatment under O.C.G.A. § 17-7-131(f) because the defendant continued to meet the statutory inpatient involuntary treatment criteria under O.C.G.A. § 37-3-1(9.1), and the defendant failed to rebut the presumption of continuing insanity and that inpatient involuntary treatment was still required; the defendant's experts testified that the defendant had physical altercations with patients and had relapsed and experienced an auditory hallucination after the trial court denied the defendant's prior request for release, which led to an increase in medications. Newman v. State, 314 Ga. App. 99, 722 S.E.2d 911 (2012).

Distinction between eligibility for guardian and for becoming an inmate.

- Person may be eligible to have a guardian and may not be eligible to become an inmate of Milledgeville (now Central) State Hospital or continue as such. Tucker v. American Sur. Co., 78 Ga. App. 327, 50 S.E.2d 859 (1948).

Acts admitted by insanity plea sufficient to sustain criteria for civil commitment.

- Acts admitted by a plea of not guilty by reason of insanity establish that the defendant meets the criteria for civil commitment. Once that condition has been established, it is presumed to continue at the time of an application for release. Moses v. State, 167 Ga. App. 556, 307 S.E.2d 35 (1983), overruled on other grounds, Nagel v. State, 262 Ga. 888, 427 S.E.2d 490 (1993).

Treatment outside confines of facility.

- Committing court has the authority to allow an insanity acquittee to pursue treatment, educational or other goals outside the confines of the treating facility. O'Neal v. State, 185 Ga. App. 838, 365 S.E.2d 894 (1988).

"Treatment" of patient who later attempted suicide.

- In a medical malpractice action in which the first doctor involuntarily committed the patient for inpatient treatment, but the second doctor rescinded the order, and the patient attempted to commit suicide 11 hours later, the hospital was not immune from liability because, based on the broad definition of "treatment" in Georgia's Mental Health Code, genuine issues of material fact existed regarding the hospital's liability for the hospital's treatment of the patient. Fulton-DeKalb Hospital Authority v. Hickson, 351 Ga. App. 221, 830 S.E.2d 582 (2019), cert. denied, 2020 Ga. LEXIS 105 (Ga. 2020).

Recent expressed threat of violence.

- Patient's threat to put a family member in a body bag qualified as a recent expressed threat of violence under O.C.G.A. § 37-3-1(9.1)(A)(i). Although the incident occurred several months before the patient's habeas hearing, the patient's freedom and activities had been substantially limited by the patient's return to a hospital, thus significantly curtailing the patient's ability to commit additional threats and acts of violence. Dupree v. Schwarzkophf, Ga. , S.E.2d (June 27, 2011).

Evidence sufficient to support conclusion that mentally ill person met criteria for involuntary treatment as "inpatient." See Ruff v. Central State Hosp., 192 Ga. App. 631, 385 S.E.2d 734, cert. denied, 192 Ga. App. 903, 385 S.E.2d 734 (1989); Gross v. State, 210 Ga. App. 125, 435 S.E.2d 496 (1993).

"Traumatic brain injury" exclusion in O.C.G.A. § 37-3-1 did not preclude defendant's involuntary treatment since the defendant was adjudicated mentally ill as defined in O.C.G.A. § 17-7-131. Sikes v. State, 221 Ga. App. 595, 472 S.E.2d 101 (1996).

Patient did not meet criteria for involuntary commitment.

- When the patient did not express any suicidal or homicidal tendencies, and the patient's psychiatrist did not believe the patient to present a substantial risk of imminent harm to self or others, the medical expert witnesses of record were in agreement that patient's mental status did not meet the criteria for involuntary commitment set forth in O.C.G.A. § 37-3-1. Ermutlu v. McCorkle, 203 Ga. App. 335, 416 S.E.2d 792, cert. denied, 203 Ga. App. 906, 416 S.E.2d 792 (1992).

When both the state's and the juvenile's expert witnesses testified that the juvenile did not require involuntary commitment, there was ample evidence supporting the juvenile court's determination that the juvenile did not meet the criteria for involuntary commitment; therefore, the transfer from juvenile court to Superior Court for criminal prosecution was proper. In the Interest of A.B.S., 242 Ga. App. 277, 529 S.E.2d 415 (2000).

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).

Trial court erred in denying a recommendation filed by the Department of Behavioral Health and Developmental Disabilities that a patient be moved to a group home for outpatient involuntary treatment because the preponderance of the evidence supported a finding that the patient overcame the presumption under former O.C.G.A. § 24-4-21 (see now O.C.G.A. § 24-14-21) of a continued need for inpatient involuntary treatment, and there was no evidence to support the trial court's finding that under O.C.G.A. § 37-3-1(9.1), the patient posed a substantial risk of imminent harm to the patient or others or was so unable to care for the patient's own physical health and safety as to create an imminently life-endangering crisis; the group home would have only two other suitable patient occupants, both of whom would be under the supervision of live-in supervisors and would have little opportunity to pressure the patient into misconduct, the patient would not be permitted to leave the group home unsupervised, the manager of the group home testified that as soon as patients were admitted into the group home and evaluated, an individualized service plan was created, and there was no statutory requirement that a plan exist prior to release. Nelor v. State, 309 Ga. App. 165, 709 S.E.2d 904 (2011).

Definition of mentally ill outpatient not met.

- There was no evidence to support a finding that without involuntary treatment, the defendant, who had a good insight into the defendant's condition and was compliant and independently caring for self, would be a danger of imminently becoming an inpatient again and thus, the defendant did not fit the definition of mentally ill outpatient. Coogler v. State, 324 Ga. App. 796, 751 S.E.2d 584 (2013).

Primary treating physician acting as chief medical officer.

- It is reasonable to permit a primary treating physician to act as chief medical officer for purposes of the discharge of his or her patients. Georgia Dep't of Human Resources v. Peeks, 261 Ga. 96, 403 S.E.2d 36 (1991).

When a hospital's chief medical officer appointed a patient's primary treating physician to act as chief medical officer for purposes of discharging a patient, the officer's failure to make the appointment in writing did not vitiate the appointment. Georgia Dep't of Human Resources v. Peeks, 261 Ga. 96, 403 S.E.2d 36 (1991).

Mental health records of a person who allegedly shot a number of people in a shopping mall were "clinical records" within the meaning of paragraph (2) of O.C.G.A. § 37-3-1, and therefore not subject to inspection under the Open Records Act. Southeastern Legal Found., Inc. v. Ledbetter, 260 Ga. 803, 400 S.E.2d 630 (1991).

Defendant failed to prove sanity.

- Defendant failed to prove that the defendant was not insane when the evidence indicated, inter alia, that the defendant had multiple fixed delusions, including believing to be a secret service agent and owning the hospital where the defendant was committed. Gross v. State, 262 Ga. App. 328, 585 S.E.2d 671 (2003).

Patient's request 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 were unconditionally released. Dupree v. Schwarzkophf, Ga. , S.E.2d (June 27, 2011).

Cited in Strickland v. Peacock, 88 Ga. App. 384, 77 S.E.2d 20 (1953); Pennewell v. State, 148 Ga. App. 611, 251 S.E.2d 832 (1979); Bell v. State, 244 Ga. 211, 259 S.E.2d 465 (1979); Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980); Benham v. Edwards, 501 F. Supp. 1050 (N.D. Ga. 1980); Sorrells v. Sorrells, 247 Ga. 9, 274 S.E.2d 314 (1981); Gates v. State, 167 Ga. App. 353, 306 S.E.2d 411 (1983); Pope v. State, 172 Ga. App. 396, 323 S.E.2d 268 (1984); Nelson v. State, 254 Ga. 611, 331 S.E.2d 554 (1985); Roberts v. Grigsby, 177 Ga. App. 377, 339 S.E.2d 633 (1985); Nelson v. State Farm Life Ins. Co., 178 Ga. App. 670, 344 S.E.2d 492 (1986); Ledbetter v. Cannon, 192 Ga. App. 392, 384 S.E.2d 875 (1989); Heichelbech v. Evans, 798 F. Supp. 708 (M.D. Ga. 1992); Nagel v. State, 264 Ga. 150, 442 S.E.2d 446 (1994); Bruscato v. Gwinnett-Rockdale-Newton Cmty. Serv. Bd., 290 Ga. App. 638, 660 S.E.2d 440 (2008).

OPINIONS OF THE ATTORNEY GENERAL

"Governing authority of county" interpretation.

- Hearing officers appointed pursuant to former Code 1933, § 88-502.23 (see O.C.G.A. § 37-3-84) were appointed for the benefit of the probate court making the appointment, not for the benefit of the county of residence of any patient receiving a hearing before such hearing officer; therefore, the reference in paragraph (4) of former Code 1933, § 88-501 (see O.C.G.A. § 37-3-1) to the "governing authority of the county" referred to the governing authority of the county in which the probate court was found. 1978 Op. Att'y Gen. No. U78-38.

Limitation of scope of patient.

- An inmate transferred to Central State Hospital for treatment of a mental disorder would not be a patient within the meaning of this section. 1973 Op. Att'y Gen. No. 73-54 (see O.C.G.A. § 37-3-1).

RESEARCH REFERENCES

C.J.S.

- 56 C.J.S., Mental Health, §§ 1, 3.

ALR.

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

Civil liability of psychiatrist arising out of patient's violent conduct resulting in injury to or death of patient or third party allegedly caused in whole or part by mental disorder, 80 A.L.R.6th 469.

37-3-2. Authority of board to issue regulations; powers of department generally.

  1. The board shall issue regulations to implement this chapter in accordance with the intent of this chapter to safeguard the rights of the mentally ill, as set forth in Code Sections 37-3-100, 37-3-101, and 37-3-120, and Article 6 of this chapter.
  2. In addition to the other powers provided by this chapter, the department shall have the authority:
    1. To enforce the regulations issued by the board;
    2. To prescribe the forms of applications, records, medical certificates, and any other forms required or used under this chapter and the information required to be contained therein;
    3. To require such reports from any facility as it may find necessary to the performance of its duties or functions;
    4. To visit facilities regularly to review the hospitalization procedures applied to all patients;
    5. To determine the care and treatment being given all patients;
    6. To investigate complaints and make reports and recommendations relative to the same; and
    7. To make effective such procedures and orders as may be appropriate to carry out this chapter.

      Notwithstanding the powers granted to the department under this Code section, the requirements of this Code section as to determination of treatment and care of patients and the investigation of complaints shall not apply to patients hospitalized in an institution operated by or under the control of the United States Department of Veterans Affairs or any other federal agency.

(Ga. L. 1877, p. 113, §§ 1, 2, 4; Code 1882, §§ 1344b, 1344c, 1344e; Civil Code 1895, §§ 1412, 1413, 1415; Civil Code 1910, §§ 1574, 1575, 1577, 1595; Ga. L. 1931, p. 7, § 41; Code 1933, §§ 35-202, 35-203, 35-205; Ga. L. 1958, p. 697, § 21; Ga. L. 1960, p. 837, § 19; Code 1933, § 88-519, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-508.1, enacted by Ga. L. 1969, p. 505, § 1; Code 1933, § 88-507.1, enacted by Ga. L. 1978, p. 1789, § 1; Ga. L. 1990, p. 45, § 1.)

JUDICIAL DECISIONS

Cited in Myers v. State, 143 Ga. App. 195, 237 S.E.2d 662 (1977); Dubose v. State, 148 Ga. App. 9, 251 S.E.2d 15 (1978).

37-3-3. Validity of hospitalization orders entered before September 1, 1978; establishment of regulations as to orders authorizing continued hospitalization of patients hospitalized before September 1, 1978.

No hospitalization of a mentally ill person lawful before September 1, 1978, shall be deemed unlawful because of the enactment of this chapter. The board is authorized to establish reasonable regulations to require that the chief medical officer of each treatment facility apply under Code Section 37-3-83 for an order authorizing continued hospitalization of any patient for whom such hospitalization is necessary and who was initially hospitalized under an order of a court prior to September 1, 1978. Such prior orders of hospitalization entered by the courts, unless superseded at an earlier date by an order under this chapter or unless such prior orders expire under their own terms at an earlier date, shall remain valid until March 1, 1979, after which all such orders shall be null and void and of no effect.

(Code 1933, § 88-508.7, enacted by Ga. L. 1969, p. 505, § 1; Code 1933, § 88-507.6, enacted by Ga. L. 1978, p. 1789, § 1.)

37-3-4. Immunity of hospitals, physicians, peace officers, or other private or public hospital employees from liability for actions taken in good faith compliance with admission and discharge provisions of chapter; immunity not applicable to failure to meet standard of care in provision of treatment.

Any hospital or any physician, psychologist, peace officer, attorney, or health official, or any hospital official, agent, or other person employed by a private hospital or at a facility operated by the state, by a political subdivision of the state, or by a hospital authority created pursuant to Article 4 of Chapter 7 of Title 31, who acts in good faith in compliance with the admission and discharge provisions of this chapter shall be immune from civil or criminal liability for his or her actions in connection with the admission of a patient to a facility or the discharge of a patient from a facility; provided, however, that nothing in this Code section shall be construed to relieve any hospital or any physician, psychologist, peace officer, attorney, or health official, or any hospital official, agent, or other person employed by a private hospital or at a facility operated by the state, by a political subdivision of the state, or by a hospital authority created pursuant to Article 4 of Chapter 7 of Title 31, from liability for failing to meet the applicable standard of care in the provision of treatment to a patient.

(Code 1933, § 88-502.18, enacted by Ga. L. 1969, p. 505, § 1; Code 1933, § 88-502.23, enacted by Ga. L. 1978, p. 1789, § 1; Ga. L. 1981, p. 996, § 3; Ga. L. 2011, p. 346, § 2/HB 343.)

The 2011 amendment, effective July 1, 2011, inserted "hospital or any" near the beginning, inserted "or her", near the middle, and added the proviso at the end.

Cross references.

- Liability of law enforcement officers for actions taken at scene of emergency, § 35-1-7.

Employment and training of peace officers, T. 35, C. 8.

Physicians generally, T. 43, C. 34.

Psychologists generally, T. 43, C. 39.

Law reviews.

- For annual survey of law on trial practice and procedure, see 62 Mercer L. Rev. 339 (2010).

JUDICIAL DECISIONS

Facility entitled to sovereign immunity.

- O.C.G.A. § 37-3-4 was inapplicable in an action involving a facility entitled to sovereign immunity since enactment of the Tort Claims Act, O.C.G.A. § 50-21-20 et seq., eliminated any other avenue for pursuing the state in a tort action. Northwest Ga. Regional Hosp. v. Wilkins, 220 Ga. App. 534, 469 S.E.2d 786 (1996).

No immunity for failure to evaluate and treat.

- While O.C.G.A. § 37-3-4 provides immunity for failure to follow the notice requirements and other procedures involved in admitting and discharging patients, the statute does not provide immunity for failure to properly evaluate and/or treat patients between the patient's arrival and discharge. Fulton-DeKalb Hospital Authority v. Hickson, 351 Ga. App. 221, 830 S.E.2d 582 (2019), cert. denied, 2020 Ga. LEXIS 105 (Ga. 2020).

Failure to comply did not give rise to medical malpractice claim.

- Trial court erred in construing Count II of the Third Complaint as a medical malpractice claim as the failure to comply with statutory notification and discharge requirements, pursuant to O.C.G.A. §§ 37-3-4,37-3-24, and37-3-95, did not involve the exercise of professional judgment or the care or treatment of the patient and, thus, that count was not subject to the medical malpractice statute of repose or the expert affidavit statute. Curles v. Psychiatric Solutions, Inc., 343 Ga. App. 719, 808 S.E.2d 237 (2017), cert. denied, No. S18C0519, 2018 Ga. LEXIS 181 (Ga. 2018); cert. denied, No. S18C0520, 2018 Ga. LEXIS 182 (Ga. 2018).

Discharge of dangerous patient.

- When the treatment of a mental patient involves an exercise of "control" over the patient by a physician who knows or should know that the patient is likely to cause bodily harm to others, an independent duty arises from that relationship and falls upon the physician to exercise that control with such reasonable care as to prevent harm to others at the hands of the patient. Bradley Center, Inc. v. Wessner, 250 Ga. 199, 296 S.E.2d 693 (1982), overruled on other grounds by Dep't of Labor v. McConnell, 305 Ga. 812, 828 S.E.2d 352 (2019).

Discharge of suicidal patient.

- Doctor did not act in good faith compliance with the admission and discharge provisions by failing to detain suicidal son against the son's will when the doctor knew or should have known that the son posed a serious threat to himself. Purcell v. Breese, 250 Ga. App. 472, 552 S.E.2d 865 (2001).

Facility not entitled to immunity followng "treatment" of patient who later attempted suicide.

- In a medical malpractice action in which the first doctor involuntarily committed the patient for inpatient treatment, but the second doctor rescinded the order, and the patient attempted to commit suicide 11 hours later, the hospital was not immune from liability because, based on the broad definition of "treatment" in Georgia's Mental Health Code, genuine issues of material fact existed regarding the hospital's liability for the hospital's treatment of the patient. Fulton-DeKalb Hospital Authority v. Hickson, 351 Ga. App. 221, 830 S.E.2d 582 (2019), cert. denied, 2020 Ga. LEXIS 105 (Ga. 2020).

In a medical malpractice action in which the first doctor involuntarily committed the patient for inpatient treatment, but the second doctor rescinded the order, and the patient attempted to commit suicide 11 hours later, the hospital was not immune from liability as the hospital did not discharge the patient in good faith and in compliance with Georgia's Mental Health Code because a licensed clinical social worker knowingly defied an order by the first doctor to admit a patient, consulted with the second doctor to complete the reassessment, and acted in violation of the hospital's own policies as the social worker recommended discharge without corroborating the patient's personal history from family members and without a documented safety plan. Fulton-DeKalb Hospital Authority v. Hickson, 351 Ga. App. 221, 830 S.E.2d 582 (2019), cert. denied, 2020 Ga. LEXIS 105 (Ga. 2020).

Breach of psychiatrist-patient relationship is issue of fact.

- Trial court did not err in denying a psychiatrist's motion for summary judgment in a patient's medical malpractice action because whether the psychiatrist breached duties arising from the psychiatrist-patient relationship was an issue of fact; under O.C.G.A. §§ 37-3-4 and51-1-27, the psychiatrist could be held liable if the treatment of the patient fell below the requisite standard of care, and that failure proximately caused the patient's injury. Peterson v. Reeves, 315 Ga. App. 370, 727 S.E.2d 171 (2012).

Cited in Roberts v. Grigsby, 177 Ga. App. 377, 339 S.E.2d 633 (1985).

OPINIONS OF THE ATTORNEY GENERAL

This Code section evidences a legislative intent to shield peace officers from liability in those situations where their action is taken in good faith and where there are reasonable grounds to believe: (1) that the individual arrested was suffering from mental illness; and (2) that imminent danger existed (a) that the individual would harm oneself or others if not immediately hospitalized, or (b) that one was incapable of caring for one's physical health and safety. 1969 Op. Att'y Gen. No. 69-49 (see O.C.G.A. § 37-3-4).

This Code section evidences an intent to immunize those actions of a peace officer which are authorized by statute in a nonnegligent manner. 1969 Op. Att'y Gen. No. 69-49 (see O.C.G.A. § 37-3-4).

RESEARCH REFERENCES

ALR.

- Liability for malicious prosecution predicated upon institution of, or conduct in connection with, insanity proceedings, 30 A.L.R.3d 455.

Liability for false imprisonment predicated upon institution of, or conduct in connection with, insanity proceedings, 30 A.L.R.3d 523.

Liability of one releasing institutionalized mental patient for harm he causes, 38 A.L.R.3d 699.

Liability of mental care facility for suicide of patient or former patient, 19 A.L.R.4th 7.

Malpractice liability based on prior treatment of mental disorder alleged to relate to patient's conviction of crime, 28 A.L.R.4th 712.

37-3-5. Apprehension by peace officer of patient who leaves facility without permission.

If, during the period of involuntary hospitalization pursuant to any valid physician's certificate, court order, or order by the hearing examiner authorized by this chapter, a patient escapes or otherwise leaves a facility without permission, the facility may advise any peace officer that the patient has escaped or otherwise left the facility without permission; and the peace officer shall be authorized to take the patient into custody and return him to such facility.

(Code 1933, § 88-507.9, enacted by Ga. L. 1979, p. 723, § 10.)

37-3-6. Approval of private facilities as emergency receiving, evaluating, or treatment facility; powers and duties of private facilities; right to deny admission.

Any private facility within this state may be approved as an emergency receiving facility, an evaluating facility, or a treatment facility by the department at the request of or with the consent of the governing officers of such private facility. When so approved, the private facility shall have all powers given to the corresponding type of state owned or state operated facility under the provisions of this chapter on voluntary admission, emergency admission, admission for evaluation, and involuntary hospitalization and shall have all duties and obligations of such facilities imposed by this chapter, except that any such private facility may decline to accept any patient who is unable to pay it for hospitalization or for whom it has no available space.

(Code 1933, § 88-508.6, enacted by Ga. L. 1969, p. 505, § 1; Code 1933, § 88-507.5, enacted by Ga. L. 1978, p. 1789, § 1.)

JUDICIAL DECISIONS

Duty of private hospital toward patient.

- Private hospital in which a patient is placed for treatment owes the duty of safeguarding and protecting the patient from any known or reasonably apprehended danger from oneself which may be due to one's mental incapacity, and to use ordinary and reasonable care to prevent such danger. Brawner v. Bussell, 50 Ga. App. 840, 179 S.E. 228 (1935).

RESEARCH REFERENCES

ALR.

- Liability of one releasing institutionalized mental patient for harm he causes, 38 A.L.R.3d 699.

37-3-7. Abandoning or leaving patients on grounds of psychiatric hospital.

Any person who abandons or leaves any patient on the grounds of any state owned or state operated psychiatric hospital without the permission of the regional state hospital administrator of the hospital commits the offense of criminal trespass.

(Ga. L. 1918, p. 274, § 1; Code 1933, § 35-9901; Code 1933, § 88-2715, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 2002, p. 1324, § 1-18.)

Cross references.

- Penalty for criminal trespass, § 16-7-21.

37-3-8. Loitering or trespassing on grounds of psychiatric hospital.

Any person who loiters about or trespasses on the property of any state owned or state operated psychiatric hospital or drives or rides over the grounds or roads of such hospital property with horses, automobiles, bicycles, motorcycles, or other vehicles, except in accordance with such rules and regulations as may be posted under the authority of the board, commits the offense of criminal trespass.

(Ga. L. 1918, p. 274, § 1; Code 1933, § 35-9902; Code 1933, § 88-2716, enacted by Ga. L. 1964, p. 499, § 1.)

Cross references.

- Penalty for criminal trespass, § 16-7-21.

RESEARCH REFERENCES

ALR.

- Validity of loitering statutes and ordinances, 25 A.L.R.3d 836.

Validity, construction, and application of loitering statutes and ordinances, 72 A.L.R.5th 1.

ARTICLE 2 HOSPITALIZATION AND TREATMENT OF VOLUNTARY PATIENTS

37-3-20. Admission of voluntary patients; consent of parent or guardian to treatment; giving notice of rights to patient at time of admission.

  1. The chief medical officer of any facility may receive for observation and diagnosis any patient 12 years of age or older making application therefor, any patient under 18 years of age for whom such application is made by his parent or guardian, and any patient who has been declared legally incompetent and for whom such application is made by his guardian. If found to show evidence of mental illness and to be suitable for treatment, such person may be given care and treatment at such facility; and such person may be detained by such facility until discharged pursuant to Code Section 37-3-21 or 37-3-22. The parents or guardian of a minor child must give written consent to such treatment. An individualized service plan shall be developed for such person as soon as possible.
  2. Any individual voluntarily admitted to a facility under this Code section shall be given notice of his rights under this chapter at the time of his admission.

(Ga. L. 1952, p. 94, § 1; Ga. L. 1958, p. 697, § 2; Ga. L. 1960, p. 837, § 2; Code 1933, § 88-502, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-503.1, enacted by Ga. L. 1969, p. 505, § 1; Ga. L. 1978, p. 1789, § 1.)

Law reviews.

- For article comparing hospitalization of mentally ill under Code 1933, Ch. 49-6, to present procedures under this chapter, see 23 Ga. B.J. 191 (1960). For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969). For annual survey of law on trial practice and procedure, see 62 Mercer L. Rev. 339 (2010). For note comparing procedures for hospitalization of the mentally ill in Georgia to other jurisdictions and suggesting improvements, see 7 Mercer L. Rev. 361 (1956). For note, "Due Process Rights of Minors and Parental Authority in Civil Commitment Cases," see 31 Mercer L. Rev. 617 (1980). For comment on Parham v. J.R., 442 U.S. 584, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979); Secretary of Pub. Welfare v. Institutionalized Juveniles, 442 U.S. 640, 99 S. Ct. 2523, 61 L. Ed. 2d 142 (1979), regarding juvenile commitment to state mental hospitals upon application of parents or guardians, see 29 Emory L.J. 517 (1980).

JUDICIAL DECISIONS

Constitutionality.

- State's procedures for admitting a child for treatment to a state mental hospital are consistent with constitutional guarantees. Parham v. J.R., 442 U.S. 584, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979), for comment, see 29 Emory L.J. 517 (1980).

Responsibility for regulations on procedures governing admitting minors.

- Georgia's mental health director has not published any state-wide regulations defining what specific procedures each superintendent must employ when admitting a child under 18. Each regional hospital's superintendent is responsible for the procedures in his or her facility. Parham v. J.R., 442 U.S. 584, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979), for comment, see 29 Emory L.J. 517 (1980).

In order to assert the affirmative defense of immunity from liability for good faith compliance with the statutory procedures for holding a voluntary patient after request for discharge, it was first necessary to show plaintiff was, in fact, a voluntary patient as defined by statute. Heath v. Emory Univ. Hosp., 208 Ga. App. 629, 431 S.E.2d 427 (1993).

Cited in J.L. v. Parham, 412 F. Supp. 112 (M.D. Ga. 1976); Heath v. Peachtree Parkwood Hosp., 200 Ga. App. 118, 407 S.E.2d 406 (1991); Heichelbech v. Evans, 798 F. Supp. 708 (M.D. Ga. 1992).

OPINIONS OF THE ATTORNEY GENERAL

Prerequisites to admitting mentally retarded minor.

- Pursuant to former Code 1933, § 24A-2891 (see O.C.G.A. § 15-11-40), a mentally retarded child may not properly be committed to the Department of Human Resources unless the department first advises the court that the department has appropriate facilities available to serve that particular child; similarly, a mentally ill child may not be committed unless the child is in need of hospitalization because the child is likely to injure oneself or others if not hospitalized or because, due to one's mental illness, one is incapable of caring for one's physical health and safety. 1976 Op. Att'y Gen. No. 76-111.

37-3-21. Discharge of voluntary patients upon recovery or termination of need for hospitalization; notice of discharge.

  1. The chief medical officer of the facility shall discharge any voluntary patient who has recovered from his mental illness or who has sufficiently improved that the chief medical officer determines, after consideration of the recommendations of the treatment team, that hospitalization of the patient is no longer necessary, provided that in no event shall any such patient be so discharged if, in the judgment of the chief medical officer of such facility, such discharge would be unsafe for the patient or others.The chief medical officer may designate in writing a physician or psychologist, who may be the attending physician or treating psychologist, to make these discharge decisions.If the decision of the designee is contrary to the recommendations of the treatment team or of a physician or psychologist member of the treatment team, the issue must go to the chief medical officer for final determination.Where there is concurrence, the decision of the designee will be final.
  2. Notice of discharge of patients who have been transferred from involuntary to voluntary status shall be given pursuant to Code Section 37-3-24.

(Ga. L. 1874, p. 91, § 1; Code 1882, § 1344a; Ga. L. 1884-85, p. 61, § 1; Civil Code 1895, § 1416; Civil Code 1910, § 1578; Ga. L. 1931, p. 7, § 41; Code 1933, § 35-206; Ga. L. 1952, p. 94, § 2; Ga. L. 1958, p. 697, § 3; Ga. L. 1960, p. 837, § 3; Code 1933, § 88-503, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-503.2, enacted by Ga. L. 1969, p. 505, § 1; Ga. L. 1978, p. 1789, § 1; Ga. L. 1991, p. 1059, § 2; Ga. L. 1992, p. 1902, § 2.)

JUDICIAL DECISIONS

Primary treating physician acting as chief medical officer.

- It is reasonable to permit a primary treating physician to act as chief medical officer for purposes of the discharge of his or her patients. Georgia Dep't of Human Resources v. Peeks, 261 Ga. 96, 403 S.E.2d 36 (1991).

When a hospital's chief medical officer appointed a patient's primary treating physician to act as chief medical officer for purposes of discharging a patient, the officer's failure to make the appointment in writing did not vitiate the appointment. Georgia Dep't of Human Resources v. Peeks, 261 Ga. 96, 403 S.E.2d 36 (1991).

Section inapplicable to discharge of outpatient.

- O.C.G.A. § 37-3-21 applies to inpatients and did not require a chief medical officer to examine an outpatient prior to the patient's discharge from a facility. Ward v. Emanuel County Bd. of Health, 218 Ga. App. 382, 461 S.E.2d 559 (1995).

Section inapplicable to release on pass.

- O.C.G.A. §§ 37-3-21 and37-3-22 did not apply in a negligence action against a hospital based on the hospital's release on a 24-hour pass of a patient who subsequently murdered the patient's mother. Board of Regents v. Riddle, 229 Ga. App. 15, 493 S.E.2d 208 (1997).

Cited in J.L. v. Parham, 412 F. Supp. 112 (M.D. Ga. 1976); Parham v. J.R., 442 U.S. 584, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979).

RESEARCH REFERENCES

ALR.

- Liability of one releasing institutionalized mental patient for harm he causes, 38 A.L.R.3d 699.

37-3-22. Right of voluntary patient to discharge upon application; exception; procedure on denial of application for discharge; notice of discharge.

  1. A voluntary patient, other than a minor child for whom admission has been sought by his parents or guardian, who has admitted himself to a facility pursuant to subsection (a) of Code Section 37-3-20 or any voluntary patient's personal representative, legal guardian, parent, spouse, attorney, or adult next of kin may request such patient's discharge in writing at any time after his admission. If the patient was admitted on his own application and the request for discharge is made by a person other than the patient, the discharge shall be conditioned upon the agreement of the patient thereto, unless such other person is the legal guardian of the patient's person. The request for discharge may be submitted to the chief medical officer or to any staff physician or staff psychologist or staff registered nurse of the facility for transmittal to the chief medical officer. If the patient or another on his behalf makes an oral request for release to any member of the staff or other service provider, the patient must within 24 hours be given assistance in preparing a written request. The person to whom a written request is submitted shall deliver the request to the chief medical officer within 24 hours, Saturdays, Sundays, and legal holidays excluded. Within 72 hours, excluding Sundays and legal holidays, of the delivery of a written request for release to the chief medical officer, the patient must be discharged from the facility, unless the chief medical officer finds that the discharge would be unsafe for the patient or others, in which case proceedings for involuntary treatment must be initiated under either Code Section 37-3-41, Code Section 37-3-61, or Code Section 37-3-81.
  2. Notice of discharge of patients who have been transferred from involuntary to voluntary status shall be given pursuant to Code Section 37-3-24.

(Ga. L. 1952, p. 94, § 3; Ga. L. 1958, p. 697, § 4; Ga. L. 1960, p. 837, § 4; Code 1933, § 88-504, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-503.3, enacted by Ga. L. 1969, p. 505, § 1; Ga. L. 1978, p. 1789, § 1; Ga. L. 1983, p. 3, § 28; Ga. L. 1991, p. 1059, § 9; Ga. L. 1992, p. 6, § 37.)

JUDICIAL DECISIONS

Voluntary patients with legal guardians.

- State's policy of discharging a voluntary patient who has a legal guardian or affording the patient an involuntary commitment hearing only upon the request of the patient's guardian deprives the patient of the patient's right to challenge the patient's confinement and violates due process. Heichelbech v. Evans, 798 F. Supp. 708 (M.D. Ga. 1992), aff'd, 995 F.2d 237 (11th Cir.), cert. denied, 510 U.S. 947, 114 S. Ct. 389, 126 L. Ed. 2d 338 (1993).

Distinguishing between voluntary patients with legal guardians and those without in the state's procedure for discharge from a state mental hospital does not violate equal protection since there is a rational basis for the distinction. Heichelbech v. Evans, 798 F. Supp. 708 (M.D. Ga. 1992), aff'd, 995 F.2d 237 (11th Cir.), cert. denied, 510 U.S. 947, 114 S. Ct. 389, 126 L. Ed. 2d 338 (1993).

Section inapplicable to release on pass.

- O.C.G.A. §§ 37-3-21 and37-3-22 did not apply in a negligence action against a hospital based on the hospital's release on a 24-hour pass of a patient who subsequently murdered the patient's mother. Board of Regents v. Riddle, 229 Ga. App. 15, 493 S.E.2d 208 (1997).

Cited in J.L. v. Parham, 412 F. Supp. 112 (M.D. Ga. 1976); Parham v. J.R., 442 U.S. 584, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979).

OPINIONS OF THE ATTORNEY GENERAL

Voluntary patient at a state hospital may be picked up and returned to the hospital by the hospital police if the patient leaves without making a request to be discharged and without permission. 1970 Op. Att'y Gen. No. U70-183.

RESEARCH REFERENCES

ALR.

- Liability of one releasing institutionalized mental patient for harm he causes, 38 A.L.R.3d 699.

37-3-23. Giving voluntary patients periodic notice of rights.

At the time of his admission and each six months thereafter, any voluntary patient admitted to a facility under Code Section 37-3-20 or transferred to voluntary status under Code Section 37-3-24 shall be notified in writing of his right to discharge upon application under Code Section 37-3-22 and of all other rights granted to patients under this chapter.

(Code 1933, § 88-503.4, enacted by Ga. L. 1969, p. 505, § 1; Ga. L. 1978, p. 1789, § 1.)

37-3-24. Transfer of involuntary patients to voluntary status; notice of transfer and of discharge of patients so transferred; discharge of transferred patient charged with criminal offense.

Any involuntary patient may apply to be transferred to voluntary status of hospitalization and shall be so transferred if he is able to understand and exercise the rights and powers of a voluntary patient unless the chief medical officer finds that this would not be in the best interest of the patient, which finding shall be entered in the patient's clinical record and signed by the chief medical officer. In any case in which such transfer to voluntary status occurs and in any case in which a patient transferred to voluntary status is discharged, notice of such transfer or discharge, as the case may be, shall be given: to the patient and his representatives; if the patient's hospitalization was ordered by the court, to the court which entered such order; if the patient was admitted to a facility under subsection (a) of Code Section 37-3-41, to the physician or psychologist executing the certificate; and, if the patient was under criminal charges, of which the facility received written notification, by certified mail or statutory overnight delivery to the law enforcement agency originally having custody of the patient. An involuntary patient transferred to voluntary status, which patient is under criminal charges, notice of which charges have been given in writing to the facility, may only be discharged into the physical custody of the law enforcement agency originally having custody of the patient. Such agency shall assume such custody within five days after the mailing of notification to the agency pursuant to this Code section.

(Code 1933, § 88-503.5, enacted by Ga. L. 1969, p. 505, § 1; Ga. L. 1978, p. 1789, § 1; Ga. L. 1979, p. 723, § 6; Ga. L. 1982, p. 3, § 37; Ga. L. 1991, p. 1059, § 10; 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.

JUDICIAL DECISIONS

Failure to comply did not give rise to medical malpractice claim.

- Trial court erred in construing Count II of the Third Complaint as a medical malpractice claim as the failure to comply with statutory notification and discharge requirements, pursuant to O.C.G.A. §§ 37-3-4,37-3-24, and37-3-95, did not involve the exercise of professional judgment or the care or treatment of the patient and, thus, that count was not subject to the medical malpractice statute of repose or the expert affidavit statute. Curles v. Psychiatric Solutions, Inc., 343 Ga. App. 719, 808 S.E.2d 237 (2017), cert. denied, No. S18C0519, 2018 Ga. LEXIS 181 (Ga. 2018); cert. denied, No. S18C0520, 2018 Ga. LEXIS 182 (Ga. 2018).

RESEARCH REFERENCES

ALR.

- Malpractice liability based on prior treatment of mental disorder alleged to relate to patient's conviction of crime, 28 A.L.R.4th 712.

ARTICLE 3 EXAMINATION, HOSPITALIZATION, AND TREATMENT OF INVOLUNTARY PATIENTS

JUDICIAL DECISIONS

Private mental hospitals.

- Georgia statutes neither compel nor encourage involuntary commitment, precluding a private mental hospital from becoming a state actor by state compulsion, for purposes of a suit under the federal civil rights act. Harvey v. Harvey, 949 F.2d 1127 (11th Cir. 1992).

PART 1 E MERGENCY RECEIVING FACILITIES FOR EXAMINATION OF PERSONS APPREHENDED PURSUANT TO PHYSICIAN'S CERTIFICATE, COURT ORDER, ETC.

37-3-40. Designation by department of emergency receiving facilities.

Any state owned and state operated facility may be designated by the department as an emergency receiving facility. The department shall maintain an emergency receiving facility at each Georgia regional hospital which shall accept, under Code Sections 37-3-41 through 37-3-44, patients found in any county in the service region of the hospital. Any other facility within the State of Georgia may be so designated by the department at the request of or with the consent of the governing officers of the facility.

(Code 1933, § 88-504.1, enacted by Ga. L. 1969, p. 505, § 1; Ga. L. 1978, p. 1789, § 1.)

JUDICIAL DECISIONS

Cited in Heath v. Peachtree Parkwood Hosp., 200 Ga. App. 118, 407 S.E.2d 406 (1991).

OPINIONS OF THE ATTORNEY GENERAL

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

RESEARCH REFERENCES

ALR.

- Hospital's liability as to diagnosis and care of patients brought to emergency ward, 72 A.L.R.2d 396.

37-3-41. Emergency admission based on physician's certification or court order; report by apprehending officer; entry of treatment order into patient's clinical record; authority of other personnel to act under statute.

  1. Any physician within this state may execute a certificate stating that he or she has personally examined a person within the preceding 48 hours and found that, based upon observations set forth in the certificate, such person appears to be a mentally ill person requiring involuntary treatment. A physician's certificate shall expire seven days after it is executed. Any peace officer, within 72 hours after receiving such certificate, shall make diligent efforts to take into custody the person named in the certificate and to deliver him or her forthwith to the nearest available emergency receiving facility serving the county in which the patient is found, where he or she shall be received for examination.
  2. The appropriate court of the county in which a person may be found may issue an order commanding any peace officer to take such person into custody and deliver him or her forthwith for examination, either to the nearest available emergency receiving facility serving the county in which the patient is found, where such person shall be received for examination, or to a physician who has agreed to examine such patient and who will provide, where appropriate, a certificate pursuant to subsection (a) of this Code section to permit delivery of such patient to an emergency receiving facility pursuant to subsection (a) of this Code section. Such order may only be issued if based either upon an unexpired physician's certificate, as provided in subsection (a) of this Code section, or upon the affidavits of at least two persons who attest that, within the preceding 48 hours, they have seen the person to be taken into custody and that, based upon observations contained in their affidavit, they have reason to believe such person is a mentally ill person requiring involuntary treatment. The court order shall expire seven days after it is executed.
  3. Any peace officer taking into custody and delivering for examination a person, as authorized by subsection (a) or (b) of this Code section, shall execute a written report detailing the circumstances under which such person was taken into custody. The report and either the physician's certificate or court order authorizing such taking into custody shall be made a part of the patient's clinical record.
  4. Any psychologist, clinical social worker, licensed professional counselor, or clinical nurse specialist in psychiatric/mental health may perform any act specified by this Code section to be performed by a physician. Any reference in any part of this chapter to a physician acting under this Code section shall be deemed to refer equally to a psychologist, a clinical social worker, a licensed professional counselor, or a clinical nurse specialist in psychiatric/mental health acting under this Code section. For purposes of this Code section, the term "psychologist" means any person authorized under the laws of this state to practice as a licensed psychologist; the term "clinical social worker" means any person authorized under the laws of this state to practice as a licensed clinical social worker; the term "licensed professional counselor" means any person authorized under the laws of this state to practice as a licensed professional counselor; and the term "clinical nurse specialist in psychiatric/mental health" means any person authorized under the laws of this state to practice as a registered professional nurse and who is recognized by the Georgia Board of Nursing to be engaged in advanced nursing practice as a clinical nurse specialist in psychiatric/mental health.

(Code 1933, § 88-504.2, enacted by Ga. L. 1969, p. 505, § 1; Ga. L. 1971, p. 796, § 1; Ga. L. 1978, p. 1789, § 1; Ga. L. 1981, p. 996, § 4; Ga. L. 1987, p. 3, § 37; Ga. L. 1992, p. 2531, § 1.1; Ga. L. 1994, p. 1249, § 1; Ga. L. 2014, p. 347, § 1/SB 65; Ga. L. 2015, p. 4, § 1/SB 53; Ga. L. 2017, p. 617, § 1/SB 52.)

The 2014 amendment, effective July 1, 2014, and repealed effective March 15, 2015, in subsection (a), inserted "or she" in the first and third sentences, substituted "such person" for "the person" in the first sentence and inserted "or her" in the third sentence and near the middle of the first sentence of subsection (b); and, in subsection (d), inserted "licensed professional counselor," in the first sentence, inserted "a licensed professional counselor," in the second sentence, in the third sentence, substituted "Code section" for "subsection" near the beginning, substituted a semicolon for a comma following "licensed psychologist" near the middle, and substituted "clinical social worker; the term 'licensed professional counselor' means any person authorized under the laws of this state to practice as a licensed professional counselor;" for "clinical social worker," in the middle.

Editor's notes.

- Ga. L. 2014, p. 347, § 2A/SB 65, as amended by Ga. L. 2015, p. 4, § 1/SB 53, which provides for the repeal of the amendment made by § 1 of that Act was repealed by Ga. L. 2017, p. 617, § 1/SB 52, effective May 9, 2017.

Cross references.

- Arrest of persons, T. 17, C. 4.

Licensing of applied psychologists, T. 43, C. 39.

Law reviews.

- For survey article on criminal law, see 59 Mercer L. Rev. 89 (2007). For note comparing procedures for hospitalization of the mentally ill in Georgia to other jurisdictions and suggesting improvements, see 7 Mercer L. Rev. 361 (1956). For comment, "1986 Amendments to Georgia's Mental Health Statutes: The Latest Attempt to Provide a Solution to the Problem of the Chronically Mentally Ill," see 36 Emory L.J. 1313 (1987).

JUDICIAL DECISIONS

Civil Rights Act not applicable.

- Private commitment, which involved the hospitalization and guardianship process allowed by state law, did not involve action "under color" of state law so as to invoke the protection of the federal civil rights act. Harvey v. Harvey, 749 F. Supp. 1118 (M.D. Ga. 1990), aff'd, 949 F.2d 1127 (11th Cir. 1992).

Order does not authorize full inventory search.

- Search of a civil detainee under O.C.G.A. §§ 37-3-41(a) and37-7-41(b) before being placed in a patrol car, absent some valid reason for the officer conducting the search to take custody of the clothing, container, or bag searched, does not come within the ambit of allowable inventory searches because such an inventory presupposes some valid reason for taking custody of the object being searched; an inventory search which is not necessary to achieve the recognized custodial goals of such a search is not permissible, and no controlling precedent authorizes a full inventory search on the basis that a detainee will be transported to another location in a patrol car for a mental health evaluation. Lindsey v. State, 282 Ga. App. 644, 639 S.E.2d 584 (2006).

Drug evidence found in a defendant's pocket by a police officer who was executing a civil order to apprehend the defendant for a mental health evaluation under O.C.G.A. §§ 37-3-41(a) and37-7-41(b) should have been suppressed because the search in which the officer found the evidence did not come within the ambit of allowable inventory searches; no full inventory search was authorized on the basis that the defendant was to be transported in a patrol car to the location of the evaluation. Lindsey v. State, 282 Ga. App. 644, 639 S.E.2d 584 (2006).

Acts admitted by insanity plea sufficient to sustain criteria for civil commitment.

- Acts admitted by a plea of not guilty by reason of insanity establish that the defendant meets the criteria for civil commitment. Once that condition had been established it is presumed to continue at the time of an application for release. Moses v. State, 167 Ga. App. 556, 307 S.E.2d 35 (1983), overruled on other grounds, Nagel v. State, 262 Ga. 888, 427 S.E.2d 490 (1993).

Action for false imprisonment.

- When one is held in custody pursuant to a void or defective physician's certificate, there is a viable claim for false imprisonment, but only if the certificate was not issued in "good faith." Williams v. Smith, 179 Ga. App. 712, 348 S.E.2d 50 (1986).

When one is taken into custody pursuant to a procedurally valid certificate of a physician authorizing involuntary mental treatment, the resulting detention is not "unlawful"; therefore, a cause of action for false imprisonment will not lie for such detention, although the detention may give rise to other claims. Williams v. Smith, 179 Ga. App. 712, 348 S.E.2d 50 (1986).

Admission at a hospital which was valid and proper precludes liability for false imprisonment against any party defendant for that admission. Heath v. Emory Univ. Hosp., 208 Ga. App. 629, 431 S.E.2d 427 (1993).

"Lawful" detention does not become "unlawful" by failure of a facility to provide a person detained with the notices required by O.C.G.A. § 37-3-44, and the trial court erred in ruling that the plaintiff had a viable claim for false imprisonment based upon such failure. Ridgeview Inst., Inc. v. Handley, 224 Ga. App. 533, 481 S.E.2d 531 (1997).

"False imprisonment" at mental hospital involves a medical question.

- Although action was one for false imprisonment, the standard to determine whether or not the plaintiff was unlawfully detained by institutionalization at a mental hospital was a medical one; therefore, the court looked to cases involving medical malpractice in determining whether or not the defendant exercised reasonable medical care in diagnosing the plaintiff's mental condition and whether the defendant acted properly based upon that diagnosis. Carter v. Landy, 163 Ga. App. 509, 295 S.E.2d 177 (1982), overruled on other grounds, Williams v. Smith, 179 Ga. App. 712, 348 S.E.2d 50 (1986).

Observance of proper medical and legal procedures supported summary judgment.

- Defendant's undisputed expert medical testimony that the defendant exercised proper medical care in rendering the defendant's diagnosis and utilized proper legal procedures in effectuating transfer of plaintiff patient to Georgia Regional Hospital supported grant of partial summary judgment in defendant's favor as to the issue of false imprisonment. Carter v. Landy, 163 Ga. App. 509, 295 S.E.2d 177 (1982), overruled on other grounds, Williams v. Smith, 179 Ga. App. 712, 348 S.E.2d 50 (1986).

Physician's reliance on personal observation.

- In determining opinions as to the mental condition of a person, a physician can rely upon the physician's personal observation as well as testimony of behavior observed by others. Carter v. Landy, 163 Ga. App. 509, 295 S.E.2d 177 (1982), overruled on other grounds, Williams v. Smith, 179 Ga. App. 712, 348 S.E.2d 50 (1986).

No authority to take defendant into custody.

- Officers were not acting within the scope of their lawful authority when they took the defendant into custody because they did not have a physician's certificate or court order as required by O.C.G.A. § 37-3-41, and it was undisputed that the defendant had not committed, nor was the defendant suspected of committing, a penal offense as mandated by O.C.G.A. § 37-3-42(a). Boatright v. State, 327 Ga. App. 785, 761 S.E.2d 176 (2014).

Authority to take defendant into custody.

- Defendant's motion for a directed verdict of acquittal was properly denied as the evidence was sufficient to convict the defendant of two misdemeanor counts of obstructing a law enforcement officer because there was ample testimony about the existence and purpose of the order pursuant to which they assisted the deputies in taking the defendant into custody for transport to a mental health facility; the defendant refused to comply with the officers' verbal commands, and began fighting with the officers when the officers tried to detain the defendant; the defendant hit, kicked, and scratched the officers; and the officers and the defendant fell to the ground, and the defendant continued fighting until the officers were able to gain control of the defendant. Gille v. State, 351 Ga. App. 875, 833 S.E.2d 573 (2019).

Order does not authorize search incident to arrest.

- Drug evidence found in a defendant's pocket by a police officer who was executing a civil order to apprehend the defendant for a mental health evaluation under O.C.G.A. §§ 37-3-41(a) and 37-7-41(b) should have been suppressed because such an order authorized civil protective custody, not a criminal arrest pursuant to O.C.G.A. §§ 17-4-1 and17-4-40; because no criminal arrest had taken place based on probable cause, the defendant had not been arrested such that a search incident to an arrest was authorized. Lindsey v. State, 282 Ga. App. 644, 639 S.E.2d 584 (2006).

Claim of immunity failed.

- Defendant's claim of immunity failed because the defendant was not justified in resisting custody when officers failed to comply with O.C.G.A. § 37-3-41 because the statute was not applicable since police were not attempting to place the defendant into civil protective custody. Copley v. State, 347 Ga. App. 309, 819 S.E.2d 294 (2018).

Cited in J.L. v. Parham, 412 F. Supp. 112 (M.D. Ga. 1976); Lindsey v. State, 252 Ga. 493, 314 S.E.2d 881 (1984).

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.

Certificate or affidavits mentioned in former Code 1933, § 88-504.2 (see O.C.G.A. § 37-3-41) were the minimum basis for an order of the court, and were of an evidentiary nature; the certificates or affidavits did not make it mandatory that the court issue the order, for this would deprive the court of the jurisdiction and discretion granted by former Code 1933, § 24-1901 (see O.C.G.A. § 15-9-30); the weight of evidence necessary for detention order was not that there was "probable cause" for the detention, but, rather, that there was "sufficient evidence." 1972 Op. Att'y Gen. No. U72-29.

Probate judge does not have a mandatory duty to issue the order for transportation of mentally ill persons. 1977 Op. Att'y Gen. No. U77-64.

RESEARCH REFERENCES

ALR.

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

37-3-42. Emergency admission of persons arrested for penal offenses; report by officer; entry of report into clinical record.

  1. A peace officer may take any person to a physician within the county or an adjoining county for emergency examination by the physician, as provided in Code Section 37-3-41, or directly to an emergency receiving facility if (1) the person is committing a penal offense, and (2) the peace officer has probable cause for believing that the person is a mentally ill person requiring involuntary treatment. The peace officer need not formally tender charges against the individual prior to taking the individual to a physician or an emergency receiving facility under this Code section. The peace officer shall execute a written report detailing the circumstances under which the person was taken into custody; and this report shall be made a part of the patient's clinical record.
  2. Any psychologist may perform any act specified by this Code section to be performed by a physician. Any reference in any part of this chapter to a physician acting under this Code section shall be deemed to refer equally to a psychologist acting under this Code section. For purposes of this subsection, the term "psychologist" means any person authorized under the laws of this state to practice as a licensed psychologist.

(Code 1933, § 88-504.3, enacted by Ga. L. 1969, p. 505, § 1; Ga. L. 1978, p. 1789, § 1; Ga. L. 1981, p. 996, § 4; Ga. L. 1987, p. 3, § 37.)

Cross references.

- Arrest of persons, T. 17, C. 4.

Licensing of applied psychologists, T. 43, C. 39.

JUDICIAL DECISIONS

No authority to take defendant into custody.

- Officers were not acting within the scope of their lawful authority when they took the defendant into custody because they did not have a physician's certificate or court order as required by O.C.G.A. § 37-3-41, and it was undisputed that the defendant had not committed, nor was the defendant suspected of committing, a penal offense as mandated by O.C.G.A. § 37-3-42(a). Boatright v. State, 327 Ga. App. 785, 761 S.E.2d 176 (2014).

Cited in Benham v. Edwards, 501 F. Supp. 1050 (N.D. Ga. 1980).

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.

RESEARCH REFERENCES

ALR.

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

37-3-43. Procedure upon admission; notice of proposed discharge.

  1. A patient who is admitted to an emergency receiving facility shall be examined by a physician as soon thereafter as possible but in any event within 48 hours and may be given such emergency treatment as is indicated by good medical practice. The patient must be discharged within 48 hours of his admission unless:
    1. An examining physician or psychologist concludes that there is reason to believe that the patient may be a mentally ill person requiring involuntary treatment and executes a certificate to that effect within such time; or
    2. The patient is under criminal charges, notice of which has been given in writing to the facility, in which case the provisions of Code Section 37-3-95 shall apply.

      Nothing in this chapter shall be construed to prohibit a physician or psychologist who previously executed a certificate authorized by the provisions of this chapter from executing any other certificate provided for in this chapter for the same or any other patient.

  2. Within 24 hours of the execution of the certificate under paragraph (1) of subsection (a) of this Code section, the patient shall be transported, as provided in Code Section 37-3-101, to an evaluating facility where he shall be received pursuant to Code Section 37-3-63 unless the patient has been determined and certified to meet all of the outpatient treatment requirements of paragraphs (1) and (2) of subsection (c) of Code Section 37-3-90, in which event the patient shall be discharged under the conditions provided in Code Section 37-3-91, except that if the patient is under criminal charges, notice of which has been given in writing to the facility, the provisions of Code Section 37-3-95 shall apply.
  3. Notice of any proposed discharge shall be given to the patient and his representatives; if the patient was admitted to the facility under subsection (a) of Code Section 37-3-41, to the physician or psychologist who executed the certificate; if the patient was admitted to the facility under subsection (b) of Code Section 37-3-41, to the court which issued the order; and, if the patient was under criminal charges, written notice of which had been given to the facility, by certified mail or statutory overnight delivery to the law enforcement agency originally having custody of the patient.

(Ga. L. 1958, p. 697, § 9; Ga. L. 1960, p. 837, § 9; Code 1933, § 88-509, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, §§ 88-504.4, 88-504.5, enacted by Ga. L. 1969, p. 505, § 1; Ga. L. 1977, p. 1293, § 8; Ga. L. 1978, p. 1789, § 1; Ga. L. 1982, p. 3, § 37; Ga. L. 1982, p. 937, §§ 5, 7; Ga. L. 1985, p. 1024, § 1; Ga. L. 1986, p. 1098, § 2; Ga. L. 1991, p. 1059, § 11; Ga. L. 1992, p. 1902, § 3; Ga. L. 1996, p. 6, § 37; Ga. L. 2000, p. 1589, § 3.)

Cross references.

- Arrest of persons, T. 17, C. 4.

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.

Law reviews.

- For comment, "1986 Amendments to Georgia's Mental Health Statutes: The Latest Attempt to Provide a Solution to the Problem of the Chronically Mentally Ill," see 36 Emory L.J. 1313 (1987).

JUDICIAL DECISIONS

Cited in J.L. v. Parham, 412 F. Supp. 112 (M.D. Ga. 1976).

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.

RESEARCH REFERENCES

ALR.

- Liability of one releasing institutionalized mental patient for harm he causes, 38 A.L.R.3d 699.

37-3-44. Giving person and representatives notice of their rights upon admission to emergency receiving facility.

  1. Immediately upon arrival of a person at an emergency receiving facility under Code Section 37-3-43 or as soon thereafter as reasonably possible given a person's condition or mental state at the time of arrival, the facility shall give the person written notice of his or her right to petition for a writ of habeas corpus or for a protective order under Code Section 37-3-148. This written notice shall also inform the person who has mental illness that he or she has a right to legal counsel and that, if the person is unable to afford counsel, the court will appoint counsel.
  2. The notice informing the person's representatives of such person's hospitalization in an emergency receiving facility shall include a clear notification that the representatives may petition for a writ of habeas corpus or for a protective order under Code Section 37-3-148.

(Code 1933, § 88-504.6, enacted by Ga. L. 1969, p. 505, § 1; Ga. L. 1978, p. 1789, § 1; Ga. L. 1986, p. 1098, § 2; Ga. L. 2016, p. 313, § 1/SB 271.)

The 2016 amendment, effective July 1, 2016, in subsection (a), substituted "person" for "patient" throughout, in the first sentence, inserted "or as soon thereafter as reasonably possible given a person's condition or mental state at the time of arrival," and inserted "or her", and, in the second sentence, substituted "who has mental illness that he or she" for "that he"; and, in subsection (b), substituted "person's representatives of such person's" for "patient's representatives of the patient's".

Cross references.

- Arrest of persons, T. 17, C. 4.

JUDICIAL DECISIONS

Precepts of due process require a clear and convincing standard of proof in a civil proceeding to commit an individual to a mental hospital involuntarily. Pitts v. State, 151 Ga. App. 691, 261 S.E.2d 435 (1979).

Failure to give notice.

- "Lawful" detention does not become "unlawful" by failure of a facility to provide a person detained with the notices required by O.C.G.A. § 37-3-44, and the trial court erred in ruling that plaintiff had a viable claim for false imprisonment based upon such failure. Ridgeview Inst., Inc. v. Handley, 224 Ga. App. 533, 481 S.E.2d 531 (1997).

Cited in Carter v. Landy, 163 Ga. App. 509, 295 S.E.2d 177 (1982).

OPINIONS OF THE ATTORNEY GENERAL

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

RESEARCH REFERENCES

ALR.

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

May proceedings to have a person declared insane and to appoint a conservator or committee of his person or estate rest upon substituted or constructive service of process, 175 A.L.R. 1324.

Hospital's liability as to diagnosis and care of patients brought to emergency ward, 72 A.L.R.2d 396.

Necessity and sufficiency of statements informing one under investigation for involuntary commitment of right to remain silent, 23 A.L.R.4th 563.

PART 2 E VALUATING FACILITIES FOR EXAMINATION OF PERSONS ORDERED TO UNDERGO EVALUATION FOR MENTAL ILLNESS

RESEARCH REFERENCES

Adequacy of Quasi-Miranda Warning Prior to Involuntary Civil Commitment, 40 POF2d 733.

Wrongful Confinement to a Mental Health or Developmental Disabilities Facility, 44 POF3d 217.

37-3-60. Designation of evaluating facilities.

Any state owned or state operated facility may be designated by the department as an evaluating facility. The department shall maintain an evaluating facility at each Georgia regional hospital which shall accept, under Code Sections 37-3-61 through 37-3-65, patients found in any county in the service region of the hospital designated by the department. Any other facility within the State of Georgia may be so designated by the department at the request of or with the consent of the governing officers of the facility.

(Code 1933, § 88-505.1, enacted by Ga. L. 1969, p. 505, § 1; Ga. L. 1978, p. 1789, § 1.)

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.

37-3-61. Initiation of proceedings for court ordered evaluation.

Proceedings for a court ordered evaluation may be initiated in the following manner:

  1. Any person may file an application executed under oath with the community mental health center for a court ordered evaluation of a person located within that county who is alleged by such application to be a mentally ill person requiring involuntary treatment. Upon the filing of such application, the community mental health center shall make a preliminary investigation and, if the investigation shows that there is probable cause to believe that such allegation is true, it shall file a petition with the court in the county where the patient is located seeking an involuntary admission for evaluation; and
  2. Any person may file with the court a petition executed under oath alleging that a person within the county is a mentally ill person requiring involuntary treatment. The petition must be accompanied by the certificate of a physician or psychologist stating that he has examined the patient within the preceding five days and has found that the patient may be a mentally ill person requiring involuntary treatment and that a full evaluation of the patient is necessary.

(Code 1933, § 88-505.2, enacted by Ga. L. 1969, p. 505, § 1; Ga. L. 1978, p. 1789, § 1; Ga. L. 1982, p. 3, § 37; Ga. L. 1991, p. 1059, § 12; Ga. L. 1993, p. 1445, § 17.2.)

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which amends this Code section, provides, in § 19.1, not codified by the General Assembly, that the amendment is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed the 1993 amendment to this Code section.

JUDICIAL DECISIONS

Acts admitted by insanity plea sufficient to sustain criteria for civil commitment.

- Acts admitted by a plea of not guilty by reason of insanity establish that the defendant meets the criteria for civil commitment. Once that condition had been established it is presumed to continue at the time of an application for release. Moses v. State, 167 Ga. App. 556, 307 S.E.2d 35 (1983), overruled on other grounds, Nagel v. State, 262 Ga. 888, 427 S.E.2d 490 (1993).

OPINIONS OF THE ATTORNEY GENERAL

Statute specifies two methods in which any person may apply for a court-ordered evaluation of an alleged mentally ill person: one may (1) file an application, executed under oath, with the county health department alleging that a patient is mentally ill and is either a danger to oneself or others or is incapable of caring for the patient's physical health and safety; or (2) file a petition with the probate court, executed under oath, alleging that a patient within the county is mentally ill and is either a danger to oneself or others or is incapable of caring for the patient's physical health and safety; the General Assembly intended that neither method has preference over the other. 1971 Op. Att'y Gen. No. 71-131.

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.

RESEARCH REFERENCES

ALR.

- Validity and construction of statutes providing for psychiatric examination of accused to determine mental condition, 32 A.L.R.2d 434.

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

Necessity and sufficiency of statements informing one under investigation for involuntary commitment of right to remain silent, 23 A.L.R.4th 563.

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

37-3-62. Hearing on petition for court ordered evaluation; recipients of hearing notice; appointment of representatives; contents of notice; patient's right to counsel; waiver of hearing; procedure upon issuance of order for evaluation.

  1. The court shall review the petition filed under Code Section 37-3-61 and, if it finds reasonable cause to believe that the patient may be a mentally ill person requiring involuntary treatment, the court shall hold a full and fair hearing on the petition no sooner than ten days and no later than 15 days after such petition is filed. Within five days after the filing of such petition, the court shall serve notice of the hearing upon the patient and his representatives and upon the petitioner. Representatives for the patient shall be appointed pursuant to Code Section 37-3-147, provided that the court shall designate the second representative or, in the absence of designation of one representative by the patient, both representatives; and, in the absence of such representatives or if the department is the guardian, the court shall appoint a guardian ad litem who is not the department. The notice required by this Code section shall include the time and place of the hearing; notice of the patient's right to counsel, that the patient or his representatives may apply for court appointed counsel if the patient cannot afford counsel, and that the court will appoint counsel unless the patient indicates in writing that he does not wish to be represented by counsel; and notice that the patient may waive his rights to a hearing under this Code section. A copy of the petition filed under Code Section 37-3-61 shall be attached to the notice. The patient shall have a right to counsel. If the patient is unable to afford counsel, the court shall appoint counsel for the patient unless the patient indicates in writing that he does not desire to be represented by counsel. The hearing may be waived by the patient after appointment or waiver of counsel.
  2. After a full and fair hearing or, if the hearing is waived, after a full review of the evidence, if the court is satisfied that immediate evaluation is necessary, the court shall issue an order to any peace officer to deliver the patient forthwith to the evaluating facility designated by the department to admit persons ordered by that court to be evaluated.

(Code 1933, § 88-505.3, enacted by Ga. L. 1969, p. 505, § 1; Ga. L. 1978, p. 1789, § 1.)

Cross references.

- Guardians of incapacitated adults, Ch. 5, T. 29.

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.

RESEARCH REFERENCES

ALR.

- May proceedings to have a person declared insane and to appoint a conservator or committee of his person or estate rest upon substituted or constructive service of process, 175 A.L.R. 1324.

Alleged incompetent as witness in lunacy inquisition, 22 A.L.R.2d 756.

Allowance of attorney's fee out of estate of alleged incompetent for services in connection with inquisition into sanity, 22 A.L.R.2d 1438.

Validity and construction of statutes providing for psychiatric examination of accused to determine mental condition, 32 A.L.R.2d 434.

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

Necessity and sufficiency of statements informing one under investigation for involuntary commitment of right to remain silent, 23 A.L.R.4th 563.

37-3-63. Admission of persons to evaluating facilities for evaluation and emergency treatment.

Any person who is brought to an evaluating facility under Code Section 37-3-43 or under a court order as provided in Code Section 37-3-62 shall be received for evaluation and such treatment as is indicated by good medical practice.

(Code 1933, § 88-505.4, enacted by Ga. L. 1969, p. 505, § 1; Ga. L. 1978, p. 1789, § 1.)

Law reviews.

- For note, "Mental Health Commitment Procedures in Georgia," see 3 Ga. St. B.J. 230 (1966).

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.

37-3-64. Length of detention in evaluating facility; discharge; procedure upon determination of need for hospitalization or involuntary treatment; recipients of notice of discharge from facility.

  1. A patient who has been admitted to an evaluating facility pursuant to Code Section 37-3-43, 37-3-63, or subparagraph (a)(3)(B) of Code Section 37-3-81.1 may be detained for a period not to exceed five days, Saturdays, Sundays, and holidays excluded. The patient shall be discharged upon a finding that the patient is not a mentally ill person requiring involuntary treatment or upon a finding and certification that the patient meets all of the outpatient treatment requirements of paragraphs (1) and (2) of subsection (c) of Code Section 37-3-90, in which event a patient meeting those outpatient treatment requirements shall be discharged under the conditions provided in Code Section 37-3-91 but, in any event, upon the expiration of the five-day evaluation period unless:
    1. Within that period:
      1. The patient is admitted as a voluntary patient under Code Section 37-3-20; or
      2. The patient is admitted for involuntary inpatient treatment under Code Section 37-3-81; or
    2. The patient is under criminal charges, notice of which has been given in writing to the facility, in which case the provisions of Code Section 37-3-95 shall apply.
  2. If hospitalization appears desirable, the staff physicians or psychologists of the evaluating facility shall encourage the patient to apply for voluntary hospitalization unless the attending physician or treating psychologist finds that the patient is unable to understand the nature of voluntary hospitalization, that voluntary hospitalization would be harmful to the patient, or that the patient is determined to be a mentally ill person in need of involuntary treatment, which finding shall be entered in the patient's record.
  3. If, after evaluation of the patient, it is determined by the chief medical officer that proceedings for involuntary treatment of the patient should be initiated pursuant to Code Section 37-3-81 or pursuant to Part 4 of this article, the chief medical officer shall direct that an individualized service plan be developed for that patient during the five-day period that he is detained for evaluation in the facility.
  4. Notice of the discharge shall be given to the patient and his representatives; to the person who filed the petition; if the patient was admitted to the evaluating facility from an emergency receiving facility under Code Section 37-3-43, to the physician or psychologist who executed the certificate or to the court which issued the order pursuant to Code Section 37-3-41; if the patient was under criminal charges of which the facility received written notification, by certified mail or statutory overnight delivery to the law enforcement agency originally having custody of the patient; and, if the patient was admitted to the evaluating facility under Code Section 37-3-62, to the court that ordered the evaluation.

(Code 1933, §§ 88-505.5, 88-505.6, enacted by Ga. L. 1969, p. 505, § 1; Ga. L. 1977, p. 1293, § 9; Ga. L. 1978, p. 1789, § 1; Ga. L. 1986, p. 1098, § 3; Ga. L. 1991, p. 1059, § 13; Ga. L. 1992, p. 1902, § 4; Ga. L. 1996, p. 6, § 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.

Law reviews.

- For comment advocating legislative determination of parental liability for costs of institutional custody of child involuntarily committed to a mental health facility in response to criminal behavior in light of Treglown v. Department of Health & Social Servs., 38 Wis. 2d 317, 156 N.W.2d 363 (1968), see 19 Mercer L. Rev. 457 (1968).

JUDICIAL DECISIONS

Construction.

- Former Code 1933, Ch. 49-6 and Ga. L. 1969, p. 505 (see former Ch. 5, T. 29 and O.C.G.A. Ch. 3, T. 37) were meant to be read together for procedural purposes. Kiker v. Kiker, 126 Ga. App. 39, 189 S.E.2d 880 (1972).

Exhaustion of statutory remedies prerequisite before invoking habeas corpus.

- When a person has been adjudged insane and committed to an institution, and thereafter seeks to be discharged upon the ground that the person's sanity has been restored, the person cannot invoke the writ of habeas corpus without showing that the person has exhausted specific statutory remedies, when such are provided; however, a party might, perhaps, show some valid reason excusing failure to pursue a statutory remedy, even in a case when ordinarily the party should pursue the remedy. Richardson v. Hall, 199 Ga. 602, 34 S.E.2d 888 (1945).

Continuing presumption of insanity follows prior judicial determination.

- When the defendant in a release hearing had been examined three separate times to determine mental competency in relation to a criminal trial, and there had been a judicial determination that the defendant was not mentally responsible for the defendant's crimes and apparently not competent to stand trial, there existed a continuing presumption of insanity at the time of the release hearing. Pitts v. State, 151 Ga. App. 691, 261 S.E.2d 435 (1979).

When a prior determination based on clear and convincing evidence, as when the trial court had for the court's consideration the evidence of numerous prior committals for psychiatric treatment, evidence that following release from such structured treatment, defendant had suffered decompensation and had often become violent and aggressive toward self or others when not undergoing a regular course of treatment and medication, even though the state did not affirmatively offer it or any additional evidence at the release hearing. Pitts v. State, 151 Ga. App. 691, 261 S.E.2d 435 (1979).

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.

RESEARCH REFERENCES

ALR.

- When finding or adjudication as to one's mental condition by official or body not clearly judicial is conclusive evidence or effect of a judgment as regards legal mental status, 108 A.L.R. 47.

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

May proceedings to have a person declared insane and to appoint a conservator or committee of his person or estate rest upon substituted or constructive service of process, 175 A.L.R. 1324.

Liability of one releasing institutionalized mental patient for harm he causes, 38 A.L.R.3d 699.

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

37-3-65. Request for transfer to another evaluating facility; recipients of notice of transfer.

Any patient admitted to an evaluating facility may apply to the chief medical officer of that facility for transfer at his own expense to any other approved evaluating facility. If the evaluating facility to which transfer is requested agrees to admit the patient, and if the patient is able to pay for evaluation at such facility, he shall be transferred forthwith. In such case, Code Section 37-3-64 shall apply; and the time periods specified shall be counted from the date of admission to the evaluating facility to which the patient is transferred. Notice of the transfer shall be given to the patient's representatives; to the person who filed the original petition, if any; if the patient was admitted to the evaluating facility from an emergency receiving facility under Code Section 37-3-43, to the physician or psychologist who executed the certificate or to the court which issued the order pursuant to Code Section 37-3-41; if the patient was under criminal charges of which the facility received written notification, by certified mail or statutory overnight delivery to the law enforcement agency originally having custody of the patient; and, if the patient was admitted to the evaluating facility under Code Section 37-3-62, to the court that ordered the evaluation.

(Code 1933, § 88-505.7, enacted by Ga. L. 1969, p. 505, § 1; Ga. L. 1978, p. 1789, § 1; Ga. L. 1992, p. 1902, § 5; 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.

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.

PART 3 D ETERMINATION OF NEED FOR TREATMENT, ADMISSION TO TREATMENT FACILITIES

37-3-80. Designation of treatment facilities.

Any state owned or state operated facility may be designated by the department as a treatment facility. The department shall maintain a treatment facility at each regional hospital which shall accept patients found in any county in the service region of the hospital. Any other facility within the State of Georgia may be so designated by the department at the request of or with the consent of the governing officers of the facility.

(Ga. L. 1958, p. 697, § 5; Ga. L. 1960, p. 837, § 5; Code 1933, § 35-227, enacted by Ga. L. 1963, p. 528, § 1; Code 1933, § 88-505, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-506.2, enacted by Ga. L. 1969, p. 505, § 1; Code 1933, § 88-506.1, enacted by Ga. L. 1978, p. 1789, § 1; Ga. L. 1986, p. 1098, § 4.)

JUDICIAL DECISIONS

Cited in Brackett v. State, 227 Ga. 493, 181 S.E.2d 380 (1971); Gibbs v. State, 235 Ga. 480, 220 S.E.2d 254 (1975); Gilbert v. State, 235 Ga. 501, 220 S.E.2d 262 (1975).

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.

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

  1. 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.
  2. 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.
  3. 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.

37-3-81.1. Disposition of patient upon hearing.

  1. At those hearings required under subsection (c) of Code Section 37-3-81 and subsection (a) of Code Section 37-3-92, the court shall determine whether the patient is a mentally ill person requiring involuntary treatment and, if so, whether the patient is an inpatient or outpatient and, unless otherwise provided in this subsection, the type of involuntary treatment the patient should be ordered to obtain. At such hearing, if the court determines:
    1. That the patient is not a mentally ill person requiring involuntary treatment, the court shall order that the patient be immediately discharged;
    2. That the patient is an outpatient, the court shall further determine, based upon either the individualized service plan required to be prepared under subsection (c) of Code Section 37-3-64 or subsection (b) of Code Section 37-3-91 or the individualized service plan proposed by the physician or psychologist chosen by the patient, whether there is available outpatient treatment for the patient which meets the requirements of the plan chosen by the court and whether the patient will likely obtain that treatment so as to minimize the likelihood of the patient's becoming an inpatient. If the court determines that there is such available outpatient treatment which the patient will likely obtain so as to minimize the likelihood of the patient's becoming an inpatient, then the court shall order the patient to obtain that treatment and shall discharge the patient subject to such order;
    3. That the patient is an outpatient who does not meet the requirements for discharge under paragraph (2) of this subsection and:
      1. The patient has been admitted to either an evaluating or treatment facility and there received an evaluation within 45 days prior to the date of the hearing under this Code section, the court shall order that the patient be discharged; or
      2. The patient has not been admitted to either an evaluating or treatment facility and there received an evaluation within 45 days prior to the date of the hearing under this Code section, the court shall order that the patient be admitted to an evaluating facility, and this chapter shall thereafter apply to that patient as though that patient had been ordered by a court to be admitted to that facility pursuant to Code Section 37-3-62; or
    4. That the patient is an inpatient, the court shall order that the patient shall be transported to a treatment facility where the patient shall be admitted for care and treatment, which order may also require that a period of such inpatient treatment be followed by available outpatient treatment if there is such outpatient treatment which will meet the requirements of the patient's individualized service plan and the patient will likely obtain the treatment so as to minimize the likelihood of the patient's becoming an inpatient.
  2. If the court at a hearing under subsection (a) of this Code section concludes that the patient is a mentally ill person requiring involuntary treatment, it shall make findings of fact and conclusions of law in support of that conclusion as part of its final order.
  3. The court may order the hospitalization of any patient pursuant to paragraph (4) of subsection (a) of this Code section for any period not to exceed six months, subject to the power of the chief medical officer to discharge the patient under subsection (b) of Code Section 37-3-85. If continued hospitalization is necessary at the end of that period, the chief medical officer shall apply for an order authorizing such continued hospitalization under Code Section 37-3-83.
  4. The court may order the patient to obtain available outpatient treatment under the additional conditions specified in Code Sections 37-3-93 and 37-3-94.

(Code 1981, §37-3-81.1, enacted by Ga. L. 1986, p. 1098, § 4; Ga. L. 1987, p. 3, § 37; Ga. L. 1987, p. 797, § 1; Ga. L. 1991, p. 1059, § 15.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1986, "Sections" was substituted for "Section" in subsection (d).

Pursuant to Code Section28-9-3, in 1987, the amendment of subparagraph (a)(3)(A) of this Code section by Ga. L. 1987, p. 3, § 27, was treated as impliedly repealed and superseded by Ga. L. 1987, p. 797, § 5, due to irreconcilable conflict. See County of Butts v. Strahan, 151 Ga. 417 (1921); Keener v. McDougall, 232 Ga. 273 (1974).

Law reviews.

- For comment, "1986 Amendments to Georgia's Mental Health Statutes: The Latest Attempt to Provide a Solution to the Problem of the Chronically Mentally Ill," see 36 Emory L.J. 1313 (1987).

JUDICIAL DECISIONS

Mental health facility has no right to detain patient pending appeal from discharge order.

- 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).

Cited in Bruscato v. Gwinnett-Rockdale-Newton Cmty. Serv. Bd., 290 Ga. App. 638, 660 S.E.2d 440 (2008).

37-3-82. Procedure upon failure of or noncompliance with involuntary outpatient treatment plan.

  1. If at any time during a period of involuntary outpatient treatment, including but not limited to interim outpatient treatment arranged pursuant to subsection (b) of Code Section 37-3-91, the physician or psychologist in charge of the patient's outpatient service plan determines that, because of a change in the patient's condition, the least restrictive alternative which would accomplish the treatment goals is hospitalization of the patient, then that physician or psychologist may execute a certificate under the conditions specified in subsection (a) of Code Section 37-3-41. That certificate shall have the same duration and effect as a certificate issued pursuant to subsection (a) of Code Section 37-3-41.
  2. If at any time during a period of involuntary outpatient treatment, including but not limited to interim outpatient treatment arranged pursuant to subsection (b) of Code Section 37-3-91, the patient fails without good cause or refuses to comply with the outpatient service plan, the physician or psychologist in charge of the outpatient service plan or that physician's or psychologist's designee may petition the court originally approving the involuntary treatment of the patient or the court of the county in which the patient is a resident or where the patient may be found for an order authorizing a peace officer to take the patient and immediately deliver the patient to the community mental health center in charge of the patient's outpatient service plan, if a physician or psychologist is available there to examine the patient, or to the nearest emergency receiving facility serving the county in which the patient is found. If in the discretion of the court such an order is issued, the patient shall be delivered to the facility and may be given such emergency or other medical treatment as is indicated by good medical practice. The patient must be released from the custody of the community mental health center within four hours and from the custody of the emergency receiving facility within 48 hours after being taken into the custody of that center or facility unless the examining physician or psychologist concludes that, because of a change in the patient's condition, the least restrictive alternative which would accomplish the treatment goals is hospitalization of the patient. The physician or a psychologist may then execute a certificate under the conditions specified therefor in subsection (a) of Code Section 37-3-41, if the examination is done in a community mental health center, or under the conditions specified therefor in Code Section 37-3-43, if the examination is done in an emergency receiving facility. That certificate shall have the same duration and effect as a certificate issued pursuant to subsection (a) of Code Section 37-3-41 or Code Section 37-3-43, as applicable.
  3. With regard to a patient required to obtain involuntary outpatient treatment, the court may issue any order authorized under subsection (b) of Code Section 37-3-41, but if the court knows that patient is required to obtain involuntary outpatient treatment, that court may issue such order only upon the court's determination, in addition to any other conditions for the issuance of that order, that such patient has not complied with the involuntary outpatient treatment or that the patient reasonably appears to be an inpatient.
  4. Any patient detained in a facility pursuant to this Code section shall not be required during that period of detention to obtain outpatient treatment required by any order which is then in effect and which was issued pursuant to this chapter. That order shall otherwise remain in full force and effect notwithstanding the patient's detention in or release from the facility unless that facility obtains a court order authorized by Code Section 37-3-81.1 which expressly supersedes the prior order.

(Code 1933, § 88-506.3, enacted by Ga. L. 1978, p. 1789, § 1; Ga. L. 1981, p. 787, § 1; Ga. L. 1982, p. 3, § 37; Ga. L. 1985, p. 1024, § 3; Ga. L. 1986, p. 1098, § 4; Ga. L. 1987, p. 797, § 2; Ga. L. 1991, p. 1059, § 16; Ga. L. 1992, p. 1902, § 7.)

Law reviews.

- For comment, "1986 Amendments to Georgia's Mental Health Statutes: The Latest Attempt to Provide a Solution to the Problem of the Chronically Mentally Ill," see 36 Emory L.J. 1313 (1987).

JUDICIAL DECISIONS

Cited in Bruscato v. Gwinnett-Rockdale-Newton Cmty. Serv. Bd., 290 Ga. App. 638, 660 S.E.2d 440 (2008).

37-3-83. Procedure for continued involuntary hospitalization.

  1. If it is necessary to continue involuntary treatment of a hospitalized person who has mental illness beyond the end of the period during which the treatment facility is currently authorized under this chapter to retain such person, the chief medical officer prior to the expiration of the period shall seek an order authorizing such continued treatment in the manner provided in this Code section. The chief medical officer may seek such an order authorizing continued involuntary treatment involving inpatient treatment, outpatient treatment, or both under the procedures of this Code section and Code Section 37-3-93.
  2. If the chief medical officer finds that continued involuntary treatment is necessary for a person who was admitted while serving a criminal sentence but whose sentence is about to expire or for a person who was hospitalized while under the jurisdiction of a juvenile court but who is about to reach the age of 17, the chief medical officer shall seek an order authorizing such continued treatment in the manner provided in this Code section; and this chapter shall apply fully to such a person after that time.
  3. A Committee for Continued Involuntary Treatment Review shall be established by the chief medical officer of each hospital and shall consist of not less than five persons of professional status, at least one of whom shall be a physician and at least two others of whom shall be either physicians or psychologists. The committee may conduct its meetings with a quorum of any three members, at least one of whom shall be a physician. The function of this committee shall be to review and evaluate the updated individualized service plan of each person who has mental illness of the hospital and to report to the chief medical officer its recommendations concerning the person's need for continued involuntary treatment. No person who has responsibility for the care and treatment of the person for whom continued involuntary treatment is requested shall serve on any committee which reviews such person's case.
  4. If the chief medical officer desires to seek an order under this Code section authorizing continued involuntary treatment for up to 12 months beyond the expiration of the currently authorized period of hospitalization, he or she shall first file a notice of such intended action with the Committee for Continued Involuntary Treatment Review, which notice shall be forwarded to the committee at least 40 days prior to the expiration of that period.
  5. If, within 40 days of the expiration of an order for involuntary treatment relating to a person who has mental illness for whom discharge has been planned, the chief medical officer determines discharge would now be unsafe, the chief medical officer may execute a certificate to be filed with a petition for continued involuntary treatment pursuant to this chapter. The certificate shall indicate the basis for the determination that the person is a person who has mental illness requiring involuntary treatment as defined in paragraph (12) of Code Section 37-3-1, the reason the process for obtaining an order for continued hospitalization was not commenced 40 days or more prior to the expiration date, and the reason continued hospitalization is the least restrictive alternative available. Referral to the Committee for Continued Involuntary Treatment Review is not required prior to the filing of a certificate and petition under this subsection. Under this subsection, the chief medical officer shall serve the petition for an order authorizing continued involuntary treatment along with copies of the updated individualized service plan on the Office of State Administrative Hearings and shall also serve such petition along with a copy of the updated individualized service plan on the person who has mental illness. A copy of the petition shall be served on the person's representatives. The petition shall contain a plain and simple statement that the person who has mental illness or his or her representatives may file a request for a hearing with a hearing examiner appointed pursuant to Code Section 37-3-84 within ten days after service of the petition, that the person who has mental illness has a right to counsel at the hearing, that the person who has mental illness or his or her representatives may apply immediately to the court to have counsel appointed if such person cannot afford counsel, and that the court will appoint counsel for the person who has mental illness unless the person indicates in writing that he or she does not desire to be represented by counsel or has made his or her own arrangements for counsel. If, following the filing of the certificate and petition under this subsection, the order authorizing the treatment facility to retain the person who has mental illness expires, such facility shall be authorized to retain the person for continued involuntary treatment until a ruling is issued. If at any time the chief medical officer determines that the person who has mental illness, after consideration of the recommendations of the treatment team, is no longer a person who has mental illness requiring involuntary inpatient treatment, the person shall be immediately discharged from involuntary inpatient treatment pursuant to subsection (b) of Code Section 37-3-85.
  6. Within five days of the date of the notice, the committee shall meet to consider the matter of the chief medical officer's intention to seek an order for continued involuntary treatment. Prior to the committee's meeting, the person who has mental illness and his or her representatives shall be notified of the following: the purpose of such meeting, the time and place of such meeting, their right to be present at such meeting, and their right to present any alternative individualized service plan secured at their expense. In those cases in which the person will not or cannot appear, at least one member of the committee will make all reasonable efforts to interview the person who has mental illness and report to the committee. The physician or psychologist proposing the treatment plan shall present an updated individualized service plan for the person to the committee. The committee shall report to the chief medical officer or his or her designee, other than the physician or psychologist proposing the treatment plan or a member of the committee, its written recommendations along with any minority recommendations which may also be submitted. Such report shall specify whether or not the person has a mental illness requiring involuntary treatment and whether continued hospitalization is the least restrictive alternative available.
  7. If, after considering the committee's recommendations and minority recommendations, if any, the chief medical officer or his or her designee, other than the attending physician or a member of the committee, determines that the person is not a person who has mental illness requiring involuntary treatment, the person shall be immediately discharged from involuntary hospitalization pursuant to subsection (b) of Code Section 37-3-85.
  8. If, after considering the committee's recommendations and minority recommendations, if any, the chief medical officer or his or her designee, other than the attending physician or member of the committee, determines that the person has a mental illness requiring involuntary treatment, he or she shall, within five days after receiving the committee's recommendations, serve a petition for an order authorizing continued involuntary treatment along with copies of the updated individualized service plan and the committee's report on the Office of State Administrative Hearings and shall also serve such petition along with a copy of the updated individualized service plan on the person who has mental illness. A copy of the petition shall be served on the person's representatives. The petition shall contain a plain and simple statement that such person or his or her representatives may file a request for a hearing with a hearing examiner appointed pursuant to Code Section 37-3-84 within ten days after service of the petition, that the person has a right to counsel at the hearing, that the person or his or her representatives may apply immediately to the court to have counsel appointed if the person cannot afford counsel, and that the court will appoint counsel for the person unless the person indicates in writing that he or she does not desire to be represented by counsel or has made his or her own arrangements for counsel.
  9. If a hearing is not requested by the person with mental illness or his or her representatives within ten days of service of the petition on the person and his or her representatives, the hearing examiner shall make an independent review of the committee's report, the updated individualized service plan, and the petition. If he or she concludes that continued involuntary treatment may not be necessary or if he or she finds any member of the committee so concluded, then he or she shall order that a hearing be held pursuant to subsection (j) of this Code section. If he or she concludes that continued involuntary treatment is necessary, then he or she shall order continued involuntary treatment involving inpatient treatment, outpatient treatment, or both for a period not to exceed one year.
  10. If a hearing is requested within ten days of service of the petition on the person who has mental illness and his or her representatives or if the hearing examiner orders a hearing pursuant to subsection (i) or (k) of this Code section, the hearing examiner shall set a time and place for the hearing to be held within 25 days of the time the hearing examiner receives the request but no later than the day on which the current order of involuntary inpatient treatment expires, unless such hearing occurs after the expiration of the order pursuant to subsection (e) of this Code section. Notice of the hearing shall be served on the person, his or her representatives, the treatment facility, and, when appropriate, the counsel for the person. The hearing examiner, within his or her discretion, may grant a change of venue for the convenience of parties or witnesses. Such hearing shall be a full and fair hearing, except that the person's attorney, when the person is unable to attend the hearing and is incapable of consenting to a waiver of his or her appearance, may move that the person not be required to appear; however, the record shall reflect the reasons for the hearing examiner's actions. After such hearing, the hearing examiner may issue any order which the court is authorized to issue under Code Section 37-3-81.1 and subject to the limitations of Code Section 37-3-81.1, provided that a person who is an outpatient who does not meet the requirements for discharge under paragraph (2) of subsection (a) of Code Section 37-3-81.1 shall nevertheless be discharged; and provided, further, that the hearing examiner may order the person's continued inpatient treatment, outpatient treatment, or both for a period not to exceed one year, subject to the power to discharge the person under subsection (b) of Code Section 37-3-85 or under Code Section 37-3-94. In the event that an order approving continued hospitalization is entered for a person who was admitted while serving a criminal sentence under the jurisdiction of the Department of Corrections, but whose sentence is about to expire, the chief medical officer shall serve a copy of such order upon the Department of Corrections within five working days of the issuance of the order.
  11. The hearing examiner for a person who has mental illness who was admitted under the jurisdiction of the juvenile court and who reaches the age of 17 without having had a full and fair hearing pursuant to any provisions of this chapter or without having waived such hearing shall order that a hearing be held pursuant to subsection (j) of this Code section.

(Code 1933, § 88-506.6, enacted by Ga. L. 1969, p. 505, § 1; Code 1933, § 88-506.5, enacted by Ga. L. 1978, p. 1789, § 1; Ga. L. 1979, p. 723, § 9; Ga. L. 1986, p. 1098, § 4; Ga. L. 1991, p. 1059, § 17; Ga. L. 2016, p. 313, § 2/SB 271; Ga. L. 2017, p. 774, § 37/HB 323.)

The 2016 amendment, effective July 1, 2016, rewrote this Code section.

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "a person" for "an individual" twice in subsection (b) and once in the last sentence of subsection (j), and substituted "such order" for "that order" near the end of the last sentence of subsection (j).

Cross references.

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

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2016, "subsection (j)" was substituted for "subsection (i)" in the second sentence of subsection (i).

Law reviews.

- For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982).

JUDICIAL DECISIONS

Cited in Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980); Benham v. Edwards, 501 F. Supp. 1050 (N.D. Ga. 1980); Bruscato v. Gwinnett-Rockdale-Newton Cmty. Serv. Bd., 290 Ga. App. 638, 660 S.E.2d 440 (2008).

37-3-84. Appointment of hearing examiners for hearings as to continued hospitalization; powers of hearing examiners generally; issuance of subpoenas.

  1. One or more hearing examiners shall be appointed by the Justices of the Supreme Court to hold the hearings under Code Section 37-3-83. Such hearing examiners shall be members of the State Bar of Georgia and shall be compensated by the department.
  2. The hearing examiners shall have the authority to:
    1. Administer oaths and affirmations;
    2. Sign and issue subpoenas;
    3. Rule upon offers of proof;
    4. Regulate the course of the hearing;
    5. Provide for the taking of testimony by deposition;
    6. Reprimand or exclude from the hearing any person for any indecorous or improper conduct committed in the presence of the hearing examiner; and
    7. Make all appropriate orders authorized by this chapter.
  3. If a subpoena issued by the hearing examiner is disobeyed, the hearing examiner may apply to the superior court of the county in which the hearing is held for an order requiring obedience. Failure to comply with such order shall be cause for punishment as for contempt of court.
  4. In the event a patient desires counsel in a hearing before the hearing examiner but cannot afford such counsel, the hearing examiner shall apply to the court of the county in which the hearing is held and that court shall appoint counsel for the patient. Payment for such representation shall be made by the county of the patient's legal residence.

(Code 1933, § 88-506.5, enacted by Ga. L. 1969, p. 505, § 1; Code 1933, § 88-506.4, enacted by Ga. L. 1978, p. 1789, § 1; Ga. L. 1979, p. 723, § 8; Ga. L. 1986, p. 1098, § 4.)

JUDICIAL DECISIONS

Cited in Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980).

OPINIONS OF THE ATTORNEY GENERAL

In proceedings for sterilization of mental incompetent, the incompetent has right to counsel; if indigent, the incompetent has a right to appointed counsel. 1971 Op. Att'y Gen. No. U71-29.

RESEARCH REFERENCES

ALR.

- Right to notice and hearing prior to revocation of conditional release status of mental patient, 29 A.L.R.4th 394.

37-3-85. Periodic review of individualized service plan; procedure upon end of need for involuntary treatment; designation of discharge decision maker; notice of discharge or transfer to voluntary status.

  1. Each individualized service plan for a patient receiving involuntary inpatient treatment shall be reviewed at regular intervals to determine the patient's progress toward the stated goals and objectives of the plan and to determine whether the plan should be modified because of the patient's present condition. These reviews should be based upon relevant progress notes in the patient's clinical record and upon other related information; and input from the patient should be obtained and utilized where feasible.
  2. Any time a patient receiving involuntary inpatient treatment is found by the chief medical officer, after consideration of the recommendations of the treatment team, no longer to be a mentally ill person requiring involuntary inpatient treatment, the chief medical officer may:
    1. Discharge the patient from involuntary outpatient or inpatient treatment, or both, subject to the conditions of Code Section 37-3-95;
    2. Discharge the patient from involuntary inpatient treatment and require that the patient obtain available outpatient treatment for the remaining period the patient was to have been required to obtain inpatient treatment, as long as the patient then meets the standards for being discharged to outpatient treatment under paragraph (2) of subsection (a) of Code Section 37-3-81.1 and subject to the conditions of Code Section 37-3-95; or
    3. Transfer the patient to voluntary status at the patient's request, as provided in Code Section 37-3-24.
  3. The chief medical officer may designate in writing another physician, who may be the attending physician, to make these discharge decisions.If the decision of the designee is contrary to the recommendations of the treatment team, the issue must go to the chief medical officer for final determination.Where the treatment team and the designee concur, the decision of the designee will be final.
  4. Notice of the discharge or the transfer of status shall be given to the patient and his representatives; if the patient's hospitalization was authorized by order of a court, to the court which entered such order; and, if the patient was under criminal charges of which the facility received written notification, by certified mail or statutory overnight delivery to the law enforcement agency originally having custody of the patient.

(Ga. L. 1874, p. 91, § 1; Code 1882, § 1344a; Ga. L. 1884-85, p. 61, § 1; Civil Code 1895, § 1416; Civil Code 1910, § 1578; Ga. L. 1931, p. 7, § 41; Code 1933, § 35-206; Ga. L. 1953, Nov.-Dec. Sess., p. 308, §§ 1, 2; Ga. L. 1958, p. 697, § 11; Ga. L. 1960, p. 837, § 11; Code 1933, § 88-511, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-506.7, enacted by Ga. L. 1969, p. 505, § 1; Ga. L. 1977, p. 1293, § 10; Code 1933, § 88-506.6, enacted by Ga. L. 1978, p. 1789, § 1; Ga. L. 1986, p. 1098, § 4; Ga. L. 1991, p. 1059, § 3; 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.

JUDICIAL DECISIONS

Determination that a patient met former Code 1933, § 88-506.2 (see O.C.G.A. § 37-3-80) criteria was not an adjudication that the patient was mentally competent at the time of the trial of understanding the nature and object of the proceedings going on against the patient, and rightly comprehends the patient's own condition in reference to such proceedings, and is capable of rendering the patient's attorneys such assistance as a proper defense to the indictment preferred against the patient demands. Rather, one who was previously adjudicated incompetent to stand trial, is entitled to have the issue of present competency determined prior to standing trial. Gibbs v. State, 235 Ga. 480, 220 S.E.2d 254 (1975), cert. denied, 424 U.S. 924, 96 S. Ct. 1134, 47 L. Ed. 2d 333 (1976).

Presumption of sanity raised by administrative release.

- Assuming that previous commitment as "a mentally ill person and in need of hospitalization in a psychiatric hospital" raised a counter presumption to the rebuttable presumption of "sound mind and discretion," the administrative release from hospitalization cancelled any previously existing presumption of insanity, leaving a presumption of sanity, which was rebuttable. Hodges v. State, 257 Ga. 818, 364 S.E.2d 275 (1988).

Cited in Brackett v. State, 227 Ga. 493, 181 S.E.2d 380 (1971); Gilbert v. State, 235 Ga. 501, 220 S.E.2d 262 (1975); Graham v. State, 236 Ga. 378, 223 S.E.2d 803 (1976).

RESEARCH REFERENCES

ALR.

- Necessity and sufficiency of statements informing one under investigation for involuntary commitment of right to remain silent, 23 A.L.R.4th 563.

Right to notice and hearing prior to revocation of conditional release status of mental patient, 29 A.L.R.4th 394.

PART 4 I NVOLUNTARY OUTPATIENT CARE

37-3-90. Physician's or psychologist's determination and certification as to necessity of involuntary care; treatment of patient as inpatient or outpatient; minors.

  1. When a physician or psychologist at a facility or on behalf of a facility determines and certifies under this article that there is reason to believe a patient admitted to or examined at the facility is a mentally ill person requiring involuntary treatment, that physician or psychologist shall further determine and certify whether there is reason to believe the patient is:
    1. An inpatient or outpatient; and
    2. If an outpatient, whether there is available outpatient treatment.
  2. Unless otherwise specifically provided, the determination and certification as to paragraphs (1) and (2) of subsection (a) of this Code section shall be made within the time period required for determining whether a patient is a mentally ill person requiring involuntary treatment, except that if such determination is made by a physician or psychologist at or on behalf of a community mental health center, the determination and certification shall be made within four hours after the patient is examined by the physician or psychologist.
  3. A person determined and certified to be:
    1. An outpatient; and
    2. A person for whom there is available outpatient treatment

      shall be considered to be in need of involuntary outpatient treatment and not involuntary inpatient treatment for purposes of further proceedings under this article until such time as that person's status is determined to be otherwise pursuant to those proceedings.

  4. A person determined and certified to be a mentally ill person requiring involuntary treatment who does not meet all of the requirements of paragraphs (1) and (2) of subsection (c) of this Code section shall be considered to be in need of involuntary inpatient treatment and not involuntary outpatient treatment for purposes of further proceedings under this article until such time as that person's status is determined to be otherwise pursuant to those proceedings.
  5. Any minor admitted voluntarily shall be released at any time after written request is made by the minor's parent or legal guardian.

(Code 1981, §37-3-90, enacted by Ga. L. 1986, p. 1098, § 5; Ga. L. 1992, p. 1902, § 8; Ga. L. 1995, p. 612, § 1.)

Law reviews.

- For note on the 1995 amendment of this Code section, see 12 Ga. St. U.L. Rev. 258 (1995). For comment, "1986 Amendments to Georgia's Mental Health Statutes: The Latest Attempt to Provide a Solution to the Problem of the Chronically Mentally Ill," see 36 Emory L.J. 1313 (1987).

JUDICIAL DECISIONS

Cited in Bruscato v. Gwinnett-Rockdale-Newton Cmty. Serv. Bd., 290 Ga. App. 638, 660 S.E.2d 440 (2008).

37-3-91. Discharge of persons meeting outpatient care criteria.

  1. A person who is in the physical custody of a community mental health center, emergency receiving facility, or evaluating facility and who is determined by a physician or a psychologist, at or on behalf of that facility, to meet all of the outpatient treatment requirements of paragraphs (1) and (2) of subsection (c) of Code Section 37-3-90 shall be discharged from that facility as provided in this Code section pending a full and fair hearing or waiver thereof under Code Section 37-3-92. That discharge from a community mental health center shall occur within four hours after the patient is examined by a physician or a psychologist at or on behalf of that center. That discharge from an emergency receiving facility shall occur within 48 hours after the patient's admission thereto. That discharge from an evaluating facility shall occur no later than the expiration of the five-day evaluation period established under Code Section 37-3-64.
  2. Prior to a psychologist's discharging the patient under subsection (a) of this Code section, the treating psychologist shall obtain the concurrence of a physician.In addition, within the time period the facility is authorized to retain the patient, the facility at which or on behalf of which the patient was examined, which facility shall be the "referring facility" for purposes of this part, shall prepare an individualized service plan for the patient. This plan shall be prepared in consultation with the facility at which available outpatient treatment is to be provided the patient, which facility shall be the "receiving facility" for purposes of this part. The referring facility shall also make arrangements with the receiving facility to provide interim outpatient treatment, in accordance with the individualized service plan, to the patient pending the full and fair hearing or waiver thereof. Nothing in this Code section shall prevent a referring facility for a patient from also being the receiving facility for that patient.
  3. A patient for whom interim outpatient treatment is arranged pursuant to subsection (b) of this Code section shall obtain that treatment or be subject to the provisions of Code Section 37-3-82. Written notice of the time, date, place, and address for that interim outpatient treatment shall be provided the patient prior to the patient's discharge, along with written notification that if the patient does not comply with the interim outpatient treatment or attend or waive a hearing, the time and date of which hearing will later be provided the patient, the patient may be involuntarily admitted for examination, treatment, or both. Notice of the discharge shall be provided to persons other than the patient in the same manner and under the same conditions as required by subsection (c) of Code Section 37-3-43 and subsection (d) of Code Section 37-3-64, and that notice shall also include a notice regarding the interim outpatient treatment and the consequences if the patient does not obtain the treatment or attend or waive the hearing.
  4. Within three days after a referring facility has discharged a patient pursuant to subsection (a) of this Code section, that facility shall transmit to the receiving facility a copy of the referring facility's examination report, individualized service plan, and such other necessary clinical information the referring facility may have regarding the patient. Within five days after receiving such report, plan, and information, the receiving facility shall petition the court of the county in which the patient is located for a full and fair hearing pursuant to Code Section 37-3-92 and include with the petition a copy of the examination report, the individualized service plan, and the address to which the patient was discharged by the referring facility.
  5. Notwithstanding the provisions of subsection (a) of this Code section, a patient detained in a treatment facility pursuant to a certificate and petition under Code Section 37-3-81, whether or not that patient is subsequently determined by that facility during the time of such detention to meet all of the outpatient treatment requirements of paragraphs (1) and (2) of subsection (c) of Code Section 37-3-90, may not be discharged from that facility until a full and fair hearing is held pursuant to Code Section 37-3-81.1, which hearing may not be waived by any patient so determined to meet all of such outpatient treatment requirements.

(Code 1981, §37-3-91, enacted by Ga. L. 1986, p. 1098, § 5; Ga. L. 1987, p. 797, §§ 3, 4; Ga. L. 1992, p. 1902, § 9; Ga. L. 1996, p. 6, § 37.)

37-3-92. Hearing; notice; waiver of hearing; apprehension and detention of patient failing to appear; treatment upon waiver.

  1. Except when a hearing is waived as provided in this subsection, within 30 days after the filing of the petition under subsection (d) of Code Section 37-3-91, the court shall hold a full and fair hearing. At least ten days prior to that hearing, the court shall have served on the patient and the patient's representatives the same notices and information required by paragraphs (1) through (4) of subsection (a) of Code Section 37-3-81, as well as a notice that the patient may waive in writing the hearing but if the patient does not either attend or waive the hearing the court may order the patient to be taken into custody, hospitalized, evaluated, and treated. The patient and representatives shall have the rights specified in those notices. Hearings held pursuant to this subsection shall be held as provided in Code Section 37-3-81.1, and the court holding the hearing may issue any order authorized by and subject to the limitations of that Code Section 37-3-81.1.
  2. If the patient is notified of the hearing as required under subsection (a) of this Code section and does not appear at or waive that hearing, absent a showing of good cause for not appearing, the court may issue an order commanding any peace officer to take such person into custody and deliver that person to an emergency receiving facility or the referring facility if there is a physician or psychologist available there, and this chapter shall thereafter apply to that patient as though the patient had been admitted to that facility pursuant to subsection (b) of Code Section 37-3-41.
  3. If the hearing is waived as provided in subsection (a) of this Code section, that hearing shall not be held but the court shall order the patient to obtain available outpatient treatment under the individualized service plan submitted with the petition for hearing.

(Code 1981, §37-3-92, enacted by Ga. L. 1986, p. 1098, § 5; Ga. L. 1992, p. 1902, § 10.)

37-3-93. Court order for outpatient treatment; physician's or psychologist's petition to extend order; review of petition; hearing on extension petition; patients under juvenile court jurisdiction.

  1. Pursuant to Code Section 37-3-81.1 or Code Section 37-3-92, the court may order the patient to obtain available outpatient treatment for any period not to exceed one year, but the total period of involuntary treatment required by such order, including inpatient treatment within the limitations of Code Section 37-3-81.1, shall not exceed one year.
  2. If it is necessary to continue available outpatient treatment beyond the period authorized pursuant to subsection (a) of this Code section, at least 60 days prior to the expiration of that period the physician or psychologist responsible for that treatment or the person responsible for the patient's treatment under the direction and with approval of the physician or psychologist shall:
    1. Update the patient's individualized service plan;
    2. Prepare a report containing evidence that the patient meets all the requirements for available outpatient treatment under paragraphs (1) and (2) of subsection (c) of Code Section 37-3-90; and
    3. Petition the hearing examiners appointed to hold hearings under Code Section 37-3-83 for an order requiring the patient to obtain available outpatient treatment beyond the period previously ordered for the patient.

      The petition shall contain a plain and simple statement that the patient or the patient's representatives may file a request for a hearing with a hearing examiner appointed to hold hearings pursuant to Code Section 37-3-83 within 15 days after service of the petition, that the patient has a right to counsel at the hearing, that the patient or the patient's representatives may apply immediately to the court to have counsel appointed if the patient cannot afford counsel, and that the court will appoint counsel for the patient unless the patient indicates in writing that the patient does not desire to be represented by counsel or has made the patient's own arrangements for counsel.

  3. If a hearing is not requested by the patient or the representatives within 15 days of service of the petition on the patient and the patient's representatives, the hearing examiner shall make an independent review of the report, the updated individualized service plan, and the petition. If the hearing examiner concludes from that review that the patient is no longer a mentally ill person requiring involuntary treatment, then that hearing examiner shall order that a hearing be held pursuant to subsection (d) of this Code section. If the hearing examiner concludes that the patient meets all the requirements for available outpatient treatment under paragraphs (1) and (2) of subsection (c) of Code Section 37-3-90, then the hearing examiner shall order continued outpatient treatment for a period not to exceed one year.
  4. If the hearing examiner orders a hearing pursuant to subsection (c) or (e) of this Code section or if a hearing is requested within 15 days of service of the petition on the patient and the patient's representatives, the hearing examiner shall set a time and place for the hearing to be held within 25 days of the time the hearing examiner receives the request but in any event no later than the day on which the current order of involuntary outpatient treatment expires. Notice of the hearing shall be served on the patient, the patient's representatives, the facility providing outpatient treatment for the patient, and, when appropriate, on counsel for the patient. The hearing examiner, within that person's discretion, may grant a change of venue for the convenience of parties or witnesses. Such hearing shall be a full and fair hearing. After such hearing, the hearing examiner may issue any order which the court is authorized to issue under paragraphs (1), (2), and (3) of subsection (a) of Code Section 37-3-81.1 and subject to the limitations of that Code section. If the patient does not appear at the hearing, absent a showing of good cause, the hearing examiner may issue any order the court is authorized to issue under subsection (b) of Code Section 37-3-92.
  5. The hearing examiner for a patient who is ordered to obtain available outpatient treatment, who is under the jurisdiction of the juvenile court, and who reaches the age of 17 without having had a full and fair hearing pursuant to any provisions of this article or without having waived such hearing shall order that a hearing be held pursuant to subsection (d) of this Code section.

(Code 1981, §37-3-93, enacted by Ga. L. 1986, p. 1098, § 5; Ga. L. 1991, p. 1059, § 18; Ga. L. 1992, p. 1902, § 11; Ga. L. 1996, p. 6, § 37.)

Law reviews.

- For comment, "1986 Amendments to Georgia's Mental Health Statutes: The Latest Attempt to Provide a Solution to the Problem of the Chronically Mentally Ill," see 36 Emory L.J. 1313 (1987).

37-3-94. Reviews of individual service plans; discharge of patients from treatment; notice of discharge.

  1. Each individualized service plan for available outpatient treatment shall be reviewed at regular intervals to determine the patient's progress toward the stated goals and objectives of the plan and to determine whether the plan should be modified because of the patient's present condition. These reviews should be based upon relevant progress notes in the patient's clinical record and upon other related information; and input from the patient should be obtained and utilized where feasible.
  2. Any time a patient is found by the physician or psychologist in charge of the patient's outpatient treatment no longer to be a mentally ill person requiring involuntary treatment, that physician or psychologist shall discharge the patient from further compliance with the treatment.
  3. Notice of the discharge under subsection (b) of this Code section shall be given to the patient and his representatives; to the court which originally ordered such involuntary treatment; and, if the patient was under criminal charges of which the facility received written notification, by certified mail or statutory overnight delivery to the law enforcement agency originally having custody of the patient.

(Code 1981, §37-3-94, enacted by Ga. L. 1986, p. 1098, § 5; Ga. L. 1991, p. 1059, § 19; 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.

37-3-95. Discharge of patients under criminal charges.

Notwithstanding any other provisions of any part of this article, a patient under criminal charges, notice of which has been given in writing to the facility, may only be discharged from the physical custody of a facility if the facility, by certified mail or statutory overnight delivery, provides written notification of the proposed discharge to the law enforcement agency originally having custody of the patient and the patient is discharged into the physical custody of a peace officer from that agency. That agency shall be required to assume such physical custody within five days after receipt in writing of the notification of proposed discharge.

(Code 1981, §37-3-95, enacted by Ga. L. 1986, p. 1098, § 5; 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.

JUDICIAL DECISIONS

Failure to comply did not give rise to medical malpractice claim.

- Trial court erred in construing Count II of the Third Complaint as a medical malpractice claim as the failure to comply with statutory notification and discharge requirements, pursuant to O.C.G.A. §§ 37-3-4,37-3-24, and37-3-95, did not involve the exercise of professional judgment or the care or treatment of the patient and, thus, that count was not subject to the medical malpractice statute of repose or the expert affidavit statute. Curles v. Psychiatric Solutions, Inc., 343 Ga. App. 719, 808 S.E.2d 237 (2017), cert. denied, No. S18C0519, 2018 Ga. LEXIS 181 (Ga. 2018); cert. denied, No. S18C0520, 2018 Ga. LEXIS 182 (Ga. 2018).

ARTICLE 4 PLACEMENT, TRANSFER, AND TRANSPORTATION OF PATIENTS GENERALLY

37-3-100. Placement and transfer of patients generally.

  1. The department may designate the state owned or state operated facility to which a patient is to be admitted under this chapter. The department may instead designate a private facility, approved under Code Section 37-3-6, to which the patient is to be admitted, if the department has obtained the prior agreement of the private facility and of the patient or his representatives.
  2. A patient hospitalized in a state owned or state operated facility under this chapter may apply for transfer at his own expense to a private facility approved under Code Section 37-3-6 if he is able to pay for treatment at such private facility. If the private facility agrees to accept the patient, the department shall transfer the patient to that facility.
  3. If a private facility requests the department to take custody of a patient who has been hospitalized therein under this chapter and if the patient meets the criteria for admission under this chapter, then the department shall accept the patient and designate the state owned or state operated facility to which the patient shall be admitted.
  4. When the needs of the patient or efficient utilization of any facility so requires, a patient may be transferred from one facility to another. At the time of any such transfer, notice shall be given in writing to the patient and to his representatives and the patient shall be advised in writing of the reasons for his transfer. A voluntary patient may be transferred only with his consent.
  5. A patient hospitalized in a private facility, approved under Code Section 37-3-6, or that patient's representative may request that facility to transfer the patient to a state owned or operated facility. That private facility shall then request the department to take custody of the patient. If the patient meets the criteria for admission under this chapter, then the private facility shall transfer the patient and the department shall accept the patient and designate the state owned or operated facility to which the patient shall be admitted.

(Ga. L. 1958, p. 697, § 10; Ga. L. 1960, p. 837, § 10; Code 1933, § 88-510, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, §§ 88-502.13, 88-508.6, enacted by Ga. L. 1969, p. 505, § 1; Code 1933, §§ 88-507.5, 88-502.16, enacted by Ga. L. 1978, p. 1789, § 1; Ga. L. 1985, p. 873, § 1.)

37-3-101. Transportation of patients generally.

  1. The governing authority of the county where the patient is found or located shall arrange for initial emergency transport of a patient to an emergency receiving facility. Except as otherwise authorized under subsection (b) of this Code section, the governing authority of the county of the patient's residence shall arrange for all required transportation for mental health purposes subsequent to the initial transport. The type of vehicle employed shall be in the discretion of the governing authority of the county, provided that, whenever possible, marked vehicles normally used for the transportation of criminals or those accused of crimes shall not be used for the transportation of patients. The court shall, upon the request of the community mental health center, order the sheriff to transport the patient in such manner as the patient's condition demands. At any time the community mental health center is satisfied that the patient can be transported safely by family members or friends, such private transportation shall be encouraged and authorized. In nonemergency situations, no female patient shall be transported at any time without another female in attendance who is not a patient, unless such female patient is accompanied by her husband, father, adult brother, or adult son.
  2. Notwithstanding the provisions of subsection (a) of this Code section, when a patient is under the care of a facility, the facility shall have the discretion to determine the type of vehicle to safely transport the patient and to arrange for such transportation without the need to obtain the prior approval of the governing authority of the county of the patient's residence, the court, or the community mental health center. This subsection shall not prevent the facility from requesting and receiving transportation services from the governing authority of the county of the patient's residence and shall not relieve the county sheriff of the duty of providing transportation. Persons providing transportation are authorized to transport a patient from a sending facility to a receiving facility but shall not release the patient under any circumstances except into the custody of the receiving facility. The use of physical restraints to ensure the safe transport of the patient shall comply with the requirements of Code Section 37-3-165. When transportation is not provided by the county sheriff, the expense of such transportation shall not be billed to the county governing authority but may be billed to the patient and, unless agreed to in writing by the facility, shall not be billed to or considered an obligation of the facility.

(Ga. L. 1958, p. 697, § 8; Ga. L. 1960, p. 837, § 8; Code 1933, § 88-508, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-502.14, enacted by Ga. L. 1969, p. 505, § 1; Code 1933, § 88-502.17, enacted by Ga. L. 1978, p. 1789, § 1; Ga. L. 1993, p. 1445, § 17.3; Ga. L. 2002, p. 1067, § 1.)

Cross references.

- Manner of marking of law enforcement and emergency vehicles, § 40-8-90 et seq.

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which amends this Code section, provides, in § 19.1, not codified by the General Assembly, that the amendment is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed the 1993 amendment to this Code section.

OPINIONS OF THE ATTORNEY GENERAL

Sheriff must transport mental patients to hospitals in accordance with terms of the transportation order; the terms of such order depend upon the determinations of the county health department and county governing authority. 1969 Op. Att'y Gen. No. 69-412.

37-3-102. Transfer of patients to custody of federal agencies for diagnosis, care, or treatment; retention of jurisdiction by Georgia courts; jurisdiction in federal hospitals and institutions located in Georgia.

  1. If a patient ordered to be hospitalized pursuant to this chapter is eligible for hospital care or treatment by the United States Department of Veterans Affairs or any other federal agency, the department shall transfer the patient to the custody of the nearest such agency with available bed space for diagnosis, care, or treatment. When any such patient is admitted under this Code section to any such hospital or institution within or outside the state, he shall be subject to the rules and regulations of such agency. Upon notification from the superintendent or the chief medical officer of the United States Department of Veterans Affairs Medical Center for those patients therein who may require involuntary treatment pursuant to this chapter, the patient will be evaluated, while remaining in the physical custody of the United States Department of Veterans Affairs Medical Center, by the nearest emergency receiving facility. The superintendent and chief medical officer of any hospital or institution operated by such agency in which the individual is so hospitalized shall, with respect to such individual, be vested with the same powers and duties as the superintendent and chief medical officer of facilities within this state with respect to all matters under this chapter. Jurisdiction is retained in the appropriate courts of this state at any time to inquire into the mental condition of an individual so hospitalized to determine the necessity for continuance of his hospitalization and to order his release; and every transfer of a patient by the department pursuant to this Code section is so conditioned.
  2. An order of a court of competent jurisdiction of another state, territory, or possession or of the District of Columbia authorizing hospitalization of a patient by any agency of the United States shall have the same force and effect as to the patient while in this state as in the jurisdiction in which is situated the court entering the order; and the courts of the state, territory, possession, or district issuing such order shall be deemed to have retained jurisdiction of the patient so hospitalized for the purpose of inquiring into his mental condition and determining the necessity for continuance of his hospitalization, as is provided in subsection (a) of this Code section with respect to patients ordered hospitalized by the courts of this state. Consent is given for the application of the law of the state, territory, possession, or district in which is located the court issuing the order for hospitalization with respect to the authority of the chief medical officer of any hospital or institution operated in this state by the United States Department of Veterans Affairs or any other federal agency to retain custody, transfer, furlough, or discharge the patient therein hospitalized.

(Ga. L. 1958, p. 697, §§ 7, 10; Ga. L. 1960, p. 837, §§ 7, 10; Code 1933, §§ 88-507, 88-510, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-508.5, enacted by Ga. L. 1969, p. 505, § 1; Code 1933, § 88-507.4, enacted by Ga. L. 1978, p. 1789, § 1; Ga. L. 1984, p. 756, § 1; Ga. L. 1990, p. 45, § 1.)

RESEARCH REFERENCES

ALR.

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

37-3-103. Procedure for transfer of Georgia residents from out-of-state hospitals to Georgia hospitals.

Upon application to the department by a parent, spouse, next of kin, or guardian or by an agency of another state in which the patient is hospitalized, a patient shall be eligible to be hospitalized in the State of Georgia if found by the department to be a legal resident of this state. The department shall designate a hospital to which such patient is to be transported at no expense to the State of Georgia. The regional state hospital administrator of such hospital and the next of kin or guardian of the patient shall be notified of this action. The chief medical officer shall be authorized to hospitalize the patient for a period not to exceed five days unless prior to the expiration of such period the patient shall have voluntarily agreed to hospitalization or involuntary proceedings shall have been instituted under this chapter. After a thorough physical and mental examination has been made by the medical staff of such hospital, the chief medical officer of the hospital or his designee is authorized to sign an application for involuntary hospitalization if necessary. Such application shall be forwarded to the court of the county in which that hospital is located for action pursuant to the provisions of this chapter relative thereto.

(Code 1933, § 88-524, enacted by Ga. L. 1969, p. 837, § 1; Code 1933, § 88-507.8, enacted by Ga. L. 1978, p. 1789, § 1; Ga. L. 2002, p. 1324, § 1-18.)

37-3-104. Procedure upon discovery that a patient hospitalized in Georgia is not a resident.

If a hospitalized patient is discovered not to be a resident, the regional state hospital administrator of the treatment facility in which the patient is hospitalized shall seek his transfer to the custody of authorities of the state of his residence or to a publicly owned or publicly operated psychiatric hospital in that state. Notwithstanding an individual's status as a nonresident, nothing contained in this Code section shall prevent the voluntary hospitalization of such individual under this chapter for which due payment is made by such individual or others on his behalf nor shall it prevent the transfer, custody, care, or treatment of such individual in accordance with the terms of any reciprocal agreement between the State of Georgia and any other state, the District of Columbia, or any territory or possession of the United States. This Code section shall not apply to persons confined to any facility operated by or under the control of the United States Department of Veterans Affairs or any other federal agency.

(Ga. L. 1960, p. 837, § 21; Code 1933, § 88-521, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-508.4, enacted by Ga. L. 1969, p. 505, § 1; Code 1933, § 88-507.3, enacted by Ga. L. 1978, p. 1789, § 1; Ga. L. 1990, p. 45, § 1; Ga. L. 2002, p. 1324, § 1-18.)

Cross references.

- Rights of citizens of other states while in Georgia generally, § 1-2-9.

JUDICIAL DECISIONS

Cited in Kiker v. Kiker, 126 Ga. App. 39, 189 S.E.2d 880 (1972); Trapnell v. Smith, 131 Ga. App. 254, 205 S.E.2d 875 (1974); Townsend v. Cain, 140 Ga. App. 251, 230 S.E.2d 504 (1976).

ARTICLE 5 PAYMENT OF EXPENSES OF PATIENT CARE AND TRANSPORTATION GENERALLY

37-3-120. Effect of inability to pay on right to care and treatment.

It is the policy of this state that no person shall be denied care and treatment for mental illness nor shall services be delayed at a facility of the state or a political subdivision of the state because of inability to pay for such care and treatment.

(Code 1933, § 88-502.2, enacted by Ga. L. 1969, p. 505, § 1; Code 1933, § 88-502.3, enacted by Ga. L. 1978, p. 1789, § 1.)

Cross references.

- Payment of patient expenses for support, treatment in state institutions generally, Ch. 9 of this title.

RESEARCH REFERENCES

ALR.

- Constitutionality of statute imposing liability upon estate or relatives of insane person for his support in asylum, 20 A.L.R.3d 363.

37-3-121. Liability for certain expenses of transporting, examining, and caring for patients.

  1. The responsibility for paying the expenses for transporting, examining, and caring for patients, which expenses are not provided for under Chapter 9 of this title, relating to the payment of costs of care of persons admitted to state institutions under the department, shall be in the following order:
    1. The patient or his estate;
    2. Persons legally obligated or legally responsible for the support of the patient;
    3. The county of the patient's legal residence, provided that the county governing authority passes an appropriate resolution assuming such responsibility; and
    4. The department, when the General Assembly appropriates funds for such purpose.
  2. The patient or those legally obligated for his support shall not be responsible for such expenses as described above when they were incurred in transporting a patient who is released by a court or a facility before involuntary treatment as not being a mentally ill person in need of involuntary treatment.
  3. The board is authorized to issue rules and regulations governing the provisions of this Code section as it relates to the department.

(Code 1933, § 88-508.8, enacted by Ga. L. 1969, p. 505, § 1; Code 1933, § 88-507.7, enacted by Ga. L. 1978, p. 1789, § 1.)

Cross references.

- Payment of costs of hospital care for the indigent, § 31-8-1 et seq.

Medical assistance generally, § 49-4-140 et seq.

37-3-122. Payment of expenses incurred in connection with hearings held under this chapter.

  1. Except as provided in this Code section, the expenses of any hearing held under this chapter by a court or by a hearing examiner, including attorneys' fees authorized by paragraph (1) of subsection (b) of this Code section and including hearing officer expenses authorized by paragraph (3) of subsection (b) of this Code section, shall be paid by the county in which the patient has his residence or, if the patient is a transient, by the county in which the patient was initially taken into the custody of the state. Payment by such county of the hearing expenses shall only be required if the person who actually presides over the hearing executes an affidavit or includes a statement in his final order relating to the hearing that the assets of the patient, his estate, and any persons legally obligated to support the patient appear to be insufficient to defray such expenses, based upon all relevant information available to the person who actually presides over the hearing. Such affidavit or statement may include the patient's name, address, and age. The cost on appeal to the appropriate court shall be the same as provided for in other appeals from the probate and juvenile courts.
  2. Expenses of any hearing held under this chapter shall include:
    1. The fee to be paid to an attorney appointed under this chapter to represent a patient at such hearing. Such fee shall be as agreed between the attorney and the appointing court but shall not exceed an amount determined under the fee schedule followed by the county when computing the fees to be paid to an attorney who has been appointed to represent an indigent criminal defendant plus actual expenses which an attorney may incur and which have been approved by the court holding the hearing. In exceptional circumstances, the attorney may apply to the superior court of the judicial circuit in which the hearing was held for an order granting reasonable fees in excess of the amounts specified in this paragraph;
    2. The fee to be paid to the court, which fee shall be to defray the cost of clerical help and the cost of any additional office space and equipment required for the conduct of such hearing. In hearings conducted pursuant to Code Section 37-3-83 such fee shall be $20.00 and in all other hearings under this chapter such fee shall be $40.00, excluding attorneys' fees and expenses of the hearing officer; and
    3. The fee to be paid to the hearing officer appointed pursuant to subparagraph (A) of paragraph (4) of Code Section 37-3-1 to conduct a hearing. Such fee shall be as agreed between the hearing officer and the appointing court, but shall not exceed an amount determined under the fee schedule followed by the county when computing the fees to be paid to an attorney who has been appointed to represent an indigent criminal defendant plus actual expenses which the hearing officer may incur and which have been approved by the court holding the hearing. In exceptional circumstances, the hearing officer may apply to the superior court of the judicial circuit in which the hearing was held for an order granting reasonable fees in excess of the amounts specified in this paragraph. The $40.00 court cost authorized by paragraph (2) of this subsection shall also be authorized to defray the cost of clerical help and additional office space and equipment required for the conduct of such hearings.
  3. The expenses incurred by a county for a mental health hearing held by a probate court judge or an attorney on his or her staff for an out-of-county patient shall be reimbursed by the county in which the patient has his or her residence.Such amount shall not exceed the amount which would have been paid by the county to a noncounty employed hearing officer, plus any other authorized expenses in connection with the hearing.

(Ga. L. 1958, p. 697, § 24; Ga. L. 1960, p. 837, § 20; Code 1933, § 88-520, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-508.2, enacted by Ga. L. 1969, p. 505, § 1; Ga. L. 1975, p. 719, § 1; Ga. L. 1976, p. 328, § 1; Code 1933, § 88-507.2, enacted by Ga. L. 1978, p. 1789, § 1; Ga. L. 1979, p. 1042, § 2; Ga. L. 1985, p. 875, § 1; Ga. L. 1992, p. 2521, § 5.)

JUDICIAL DECISIONS

Attorney fees not recoverable in commitment proceedings.

- There is no statutory authority for the award of attorney fees to a patient who was ordered discharged in involuntary commitment proceedings under O.C.G.A. § 37-3-1 et seq. Georgia Mental Health Inst. v. Brady, 263 Ga. 591, 436 S.E.2d 219 (1993).

OPINIONS OF THE ATTORNEY GENERAL

Limit of $40.00 contained in the statute applies only to the amount which must be paid, exclusive of attorney fees, to the court by a third party, that is, either a person responsible for the care of the patient or, in an appropriate case, the county of residence of the patient if that is different than the county in which the hearing is held; the ceiling on the compensation of the hearing officer is a negotiated matter, between the governing authority of a county in which the probate court lies, the probate court, and the person selected to be the hearing officer; there is, however, no authority to pass the expense on to a third party to the extent the compensation exceeds $40.00. 1978 Op. Att'y Gen. No. U78-38.

RESEARCH REFERENCES

ALR.

- Eligibility for welfare benefits as affected by claimant's status as trust beneficiary, 21 A.L.R.4th 729.

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

Cross references.

- Tolling of statute of limitations due to mental illness or mental retardation of person to whom cause of action accrues, § 9-3-90.

RESEARCH REFERENCES

ALR.

- Validity, construction, application, and effect of Civil Rights of Institutionalized Persons Act, 42 USC §§ 1997 - 1997j, 93 A.L.R. Fed. 706.

PART 1 G ENERAL PROVISIONS

37-3-140. Retention of rights and privileges by patients generally; right to due process.

Patients shall retain all rights and privileges granted other persons or citizens. Notwithstanding any other provision of law to the contrary, no person who is receiving or has received services for a mental illness shall be deprived of any civil, political, personal, or property rights or be considered legally incompetent for any purpose without due process of law.

(Ga. L. 1960, p. 837, § 16; Code 1933, § 88-516, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-502.1, enacted by Ga. L. 1969, p. 505, § 1; Ga. L. 1978, p. 1789, § 1.)

Cross references.

- Rights of persons generally, T. 1, C. 2.

Capacity of mentally ill persons to enter into contracts, § 13-3-24.

Incurable mental illness as grounds for divorce, § 19-5-3.

Testamentary capacity of insane persons, § 53-4-11.

JUDICIAL DECISIONS

Cited in Trapnell v. Smith, 131 Ga. App. 254, 205 S.E.2d 875 (1974).

OPINIONS OF THE ATTORNEY GENERAL

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

RESEARCH REFERENCES

ALR.

- Applicability, in proceedings under statutes relating to sexual psychopaths, of constitutional provisions for the protection of a person accused of crime, 34 A.L.R.3d 652.

Voting rights of persons mentally incapacitated, 80 A.L.R.3d 1116.

Construction and application of state patient bill of rights statutes, 87 A.L.R.5th 277.

37-3-141. Patients' right to legal counsel.

It shall be the responsibility of the department to see that every patient is given the opportunity to secure legal counsel at his own expense to represent him in connection with private, personal, domestic, business, civil, criminal, and all other legal matters in which he may be involved during hospitalization.

(Code 1933, § 88-502.12, enacted by Ga. L. 1969, p. 505, § 1; Code 1933, § 88-502.15, enacted by Ga. L. 1978, p. 1789, § 1.)

Cross references.

- Right of legal counsel generally, U.S. Const., amend. 6, and Ga. Const., 1983, Art. I, Sec. I, Para. XIV.

RESEARCH REFERENCES

ALR.

- Right to counsel in insanity or incompetency adjudication proceedings, 87 A.L.R.2d 950.

Accused's right to represent himself in state criminal proceedings - modern state cases, 98 A.L.R.3d 13.

37-3-142. Communication and visitation rights of patients; inspection, restriction, and censorship of patient correspondence; establishment of regulations governing visits and use of telephones.

  1. Each patient in a facility shall have the right to communicate freely and privately with persons outside the facility and to receive visitors inside the facility.
  2. Except as otherwise provided in this Code section, each patient shall be allowed to receive and send sealed, unopened mail; and no patient's incoming or outgoing mail shall be opened, delayed, held, or censored by the facility.
  3. If there are reasonable grounds to believe that incoming mail contains items or substances which may be dangerous to the patient or others, the chief medical officer may direct reasonable examination of such mail and, after examination, may regulate the disposition of such items or substances found therein. All writings must be presented to the patient within 24 hours of inspection.
  4. The chief medical officer may apply to the court for a temporary order to restrict outgoing mail. If the court determines that probable cause exists that such mail is dangerous to the patient or others, the court may order such mail temporarily restricted, provided that a full and fair hearing shall be held within five days after the issuance of such temporary order to determine whether or not an order of restriction for an extended time shall issue. In no event shall mail be restricted pursuant to such temporary order for more than five days after the date of the temporary order. A full and fair hearing shall be held after the issuance of the temporary order. If, at such hearing, the patient's outgoing mail is determined to be dangerous to the patient or others, the court may order such mail restricted for an extended period not to exceed 30 days. Restrictions for extended periods may be renewed for additional periods not to exceed 30 days each, provided that no such restriction shall be renewed except upon a renewed finding at another full and fair hearing for each such renewal that such mail is dangerous to the patient or others.
  5. If an injunction against the sending of mail by a patient is issued by a court, the chief medical officer shall restrict outgoing mail as provided by the order of the court.
  6. No restriction of either incoming or outgoing mail under subsection (c) or (d) of this Code section shall exceed a period of five days, notwithstanding the authority to restrict such mail for longer periods, provided that such restrictions may be continued as necessary for periods not to exceed five days each upon determination by the chief medical officer, prior to each continuation, that such mail continues to be dangerous to the patient or others; provided, further, that, in the case of outgoing mail, such continuation periods in the aggregate shall not exceed the restriction period authorized in the court order.
  7. Correspondence of the patient with his attorney shall not be restricted in any manner under this Code section. Correspondence of the patient with public officials shall not be restricted in any manner under subsection (c) of this Code section.
  8. Each time a patient's incoming mail is ordered examined by the chief medical officer and each time a patient's outgoing mail is ordered examined by a temporary court order, written notice of such order and notice of a right to a full and fair hearing within five days after such temporary court order shall be served on the patient and his representatives as provided in Code Section 37-3-147. A voluntary patient may waive in writing such notice to his representatives.
  9. The circumstances surrounding the examination of any mail under subsection (c), (d), (e), or (f) of this Code section shall be recorded on the patient's clinical record.
  10. The chief medical officer is authorized to establish reasonable regulations governing visitors, visiting hours, and the use of telephones by patients.

(Ga. L. 1890-91, p. 237, §§ 1, 2, 5; Ga. L. 1892, p. 109, §§ 1, 3; Code 1933, §§ 88-901, 88-902, 88-903; Ga. L. 1958, p. 697, § 17; Ga. L. 1960, p. 837, § 16; Code 1933, § 88-516, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-502.5, enacted by Ga. L. 1969, p. 505, § 1; Code 1933, § 88-502.7, enacted by Ga. L. 1978, p. 1789, § 1.)

37-3-143. Patients' rights in regard to personal effects; liability of facility's employees and staff members for loss of or damage to patients' personal effects.

A patient's rights to his personal effects shall be respected. The chief medical officer may take temporary custody of such effects when required for medical reasons. The facility shall make reasonable efforts to assure the safety of the patient's belongings, but no employee or staff member shall be responsible for loss of or damage to such property where reasonable safety precautions have been taken.

(Code 1933, § 88-502.6, enacted by Ga. L. 1969, p. 505, § 1; Code 1933, § 88-502.8, enacted by Ga. L. 1978, p. 1789, § 1.)

37-3-144. Patients' right to vote.

Each patient in a facility who is eligible to vote shall be given his right to vote in primary, special, and general elections and in referendums. The superintendent or regional state hospital administrator of each facility shall permit and reasonably assist patients:

  1. To obtain voter registration forms, applications for absentee ballots, and absentee ballots;
  2. To comply with other requirements which are prerequisite for voting; and
  3. To vote by absentee ballot if necessary.

(Ga. L. 1960, p. 837, § 16; Code 1933, § 88-516, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-502.7, enacted by Ga. L. 1969, p. 505, § 1; Code 1933, § 88-502.9, enacted by Ga. L. 1978, p. 1789, § 1; Ga. L. 1995, p. 10, § 37; Ga. L. 2002, p. 1324, § 1-19.)

Cross references.

- Right to elective franchise generally, U.S. Const., amend. 15; Ga. Const., 1983, Art. II, Sec. I, Para. II; and § 1-2-6.

Absentee voting, § 21-2-380 et seq.

37-3-145. Employment of patients outside facilities.

If a patient wishes to be employed outside a facility and if such employment will aid in the patient's treatment, he shall be assisted in his efforts to secure suitable employment and all benefits flowing from such employment. The department shall encourage such employment of patients and shall promote the training of patients for gainful employment after discharge. All benefits of such employment shall accrue solely to the patient.

(Code 1933, § 88-502.8, enacted by Ga. L. 1969, p. 505, § 1; Code 1933, § 88-502.10, enacted by Ga. L. 1978, p. 1789, § 1.)

37-3-146. Education of children undergoing treatment in a facility.

The rights of any child under treatment in a facility to an appropriate education at public expense shall not be abridged during hospitalization; and the special educational needs of each child shall be individually considered and respected. The Department of Behavioral Health and Developmental Disabilities and the State Department of Education shall ensure that education is provided for all patients of school age who are hospitalized in any state owned, state operated, or any other designated facility.

(Code 1933, § 88-502.9, enacted by Ga. L. 1969, p. 505, § 1; Code 1933, § 88-502.11, enacted by Ga. L. 1978, p. 1789, § 1; Ga. L. 2009, p. 453, § 3-2/HB 228.)

37-3-147. Representatives and guardians ad litem; notification provisions; duration and scope of guardianship ad litem.

  1. At the time a person who has mental illness is admitted to any facility under this chapter or as soon thereafter as reasonably possible given the person's condition or mental state at the time of admission, such facility shall use diligent efforts to secure the names and addresses of at least two representatives, which names and addresses shall be entered in the person's clinical record.
  2. The patient may designate one representative; the second representative or, in the absence of designation of one representative by the patient, both representatives shall be selected by the facility. If the facility is to select both representatives, it must make one selection from among the following persons in the order of listing: the patient's legal guardian, spouse, adult child, parent, attorney, adult next of kin, or adult friend, provided that, in the case of a patient whose representative or representatives have been appointed by the court under Code Section 37-3-62, the facility shall not select a different representative. The second representative shall also be selected from the above list but without regard to the order of listing, provided that the second representative shall not be the person who filed the petition to have the patient admitted to the facility.
  3. If the facility is unable to secure at least two representatives after diligent search or if the department is the guardian of the patient, that fact shall be entered in the patient's clinical record and the facility shall apply to the court in the county of the patient's residence for the appointment of a guardian ad litem, which guardian ad litem shall not be the department. On application of any person or on its own motion, the court may also appoint a guardian ad litem for a patient for whom two representatives have been named whenever the appointment of a guardian ad litem is deemed necessary for protection of the patient's rights. Such guardian ad litem shall also act as representative of the patient and shall have the powers granted to representatives by this chapter.
  4. At any time notice is required by this chapter to be given to the patient's representatives, such notice shall be served on the representatives designated under this Code section. The patient's guardian ad litem, if any, shall likewise be served. Unless otherwise provided, notice may be served in person or by first-class mail. When notice is served by mail, a record shall be made of the date of mailing and shall be placed in the patient's clinical record. Service shall be completed upon mailing.
  5. At any time notice is required by this chapter to be given to the patient, the date on which notice is given shall be entered on the patient's clinical record. If the patient is unable to comprehend the written notice, a reasonable effort shall be made to explain the notice to him.
  6. At the time a court enters an order pursuant to this chapter, such order and notice of the date of entry of the order shall be served on the patient and his representatives as provided in subsection (d) of this Code section.
  7. Notice of an involuntary patient's admission to a facility shall be given to his representatives in writing. If such involuntary admission is to an emergency receiving facility, notice shall also be given by that facility to the patient's representatives by telephone or in person as soon as possible.
  8. In every instance in which a court shall appoint a guardian ad litem for any person pursuant to the terms of this chapter, such guardianship shall be for the limited purpose stated in the order of the court and shall expire automatically after 90 days or after a lesser time stated in the order. The responsibility of the guardian ad litem shall not extend beyond the specific purpose of the appointment.

(Code 1933, § 88-502.15, enacted by Ga. L. 1969, p. 505, § 1; Ga. L. 1971, p. 623, § 1; Ga. L. 1971, p. 784, § 1; Code 1933, § 88-502.19, enacted by Ga. L. 1971, p. 807, § 1; Code 1933, § 88-502.18, enacted by Ga. L. 1978, p. 1789, § 1; Ga. L. 1995, p. 10, § 37; Ga. L. 2016, p. 313, § 3/SB 271; Ga. L. 2017, p. 774, § 37/HB 323.)

The 2016 amendment, effective July 1, 2016, in subsection (a), substituted "person who has mental illness" for "patient" near the beginning, inserted "or as soon thereafter as reasonably possible given the person's condition or mental state at the time of admission" near the middle, and substituted "person's" for "patient's" near the end.

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "such facility" for "that facility" near the middle of subsection (a).

Cross references.

- Guardians of incapacitated adults, T. 29, C. 5.

JUDICIAL DECISIONS

Cited in Anderson v. Smith, 76 Ga. App. 171, 45 S.E.2d 282 (1947); Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980); Benham v. Edwards, 501 F. Supp. 1050 (N.D. Ga. 1980).

RESEARCH REFERENCES

ALR.

- Construction and application of statute prescribing that notice of petition or hearing for appointment of guardian be of such nature or be given to such persons as court deems reasonable or proper, 109 A.L.R. 338.

Liability of guardian ad litem for infant party to civil suit for negligence in connection with suit, 14 A.L.R.5th 929.

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.

37-3-149. Establishment of procedures for receiving patients' and staff complaints; making of final decisions; establishment of rules and regulations implementing procedures; complaint procedures as alternative to legal remedies.

Each facility shall establish procedures whereby complaints of the patient or complaints of the staff concerning treatment of the patient can be speedily heard, with final decisions to be made by the superintendent, the regional state hospital administrator, or an advisory committee, whichever is appropriate. The board shall establish reasonable rules and regulations for the implementation of such procedures. However, the patient shall not be required to utilize these procedures in lieu of other available legal remedies.

(Code 1933, § 88-502.22, enacted by Ga. L. 1978, p. 1789, § 1; Ga. L. 2002, p. 1324, § 1-11.)

Cross references.

- Reports and investigations regarding mistreatment of hospital patients, residents of long-term care facilities, §§ 31-7-9,31-8-50 et seq.,31-8-80 et seq.,31-8-100 et seq.

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.

Law reviews.

- For note, "Let Your Conscience Be Your Guide: Comparing and Contrasting Washington's Death with Dignity Act and Pharmacy Regulations After the Ninth Circuit's Decision in Stormans, Inc. v. Wiesman," see 52 Ga. L. Rev. 613 (2018).

37-3-160. Individual dignity of patients to be respected; treatment of the mentally ill as medical patients; use of criminal facilities and procedures.

The patient's dignity as an individual shall be respected at all times and upon all occasions, including any occasion wherein the patient is taken into custody, detained, or transported. Mentally ill patients or those suspected of being mentally ill shall, to the maximum extent reasonably possible, be treated at all times as medical patients. All patients shall be treated by a physician or psychologist acting within the scope of his or her license.Except where required under conditions of extreme urgency, those procedures, facilities, vehicles, and restraining devices normally utilized for criminals or those accused of crime shall not be used in connection with the mentally ill.

(Code 1933, § 88-502.1, enacted by Ga. L. 1969, p. 505, § 1; Code 1933, § 88-502.2, enacted by Ga. L. 1978, p. 1789, § 1; Ga. L. 1992, p. 1902, § 12.)

Law reviews.

- For article, "Exploring the Right to Die in the U.S.," see 33 Ga. St. U.L. Rev. 1021 (2017). For article, "Unbefriended and Unrepresented: Better Medical Decision Making for Incapacitated Patients Without Healthcare Surrogates," see 33 Ga. St. U.L. Rev. 923 (2017). For article, "Ending-Life Decisions: Some Disability Perspectives," see 33 Ga. St. U.L. Rev. 893 (2017). For article, "Distinctive Factors Affecting the Legal Context of End-Of-Life Medical Care for Older Persons," see 33 Ga. St. U.L. Rev. 869 (2017). For note comparing procedures for hospitalization of the mentally ill in Georgia to other jurisdictions and suggesting improvements, see 7 Mercer L. Rev. 361 (1956).

RESEARCH REFERENCES

ALR.

- Applicability, in proceedings under statutes relating to sexual psychopaths, of constitutional provisions for the protection of a person accused of crime, 34 A.L.R.3d 652.

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

Criminal responsibility for physical measures undertaken in connection with treatment of mentally disordered patient, 99 A.L.R.3d 854.

37-3-161. Securing of least restrictive alternative placement; assisting patient in securing placement in noninstitutional community facilities and programs.

It is the policy of the state that the least restrictive alternative placement be secured for every patient at every stage of his medical treatment and care. It shall be the duty of the facility to assist the patient in securing placement in noninstitutional community facilities and programs.

(Code 1933, § 88-502.21, enacted by Ga. L. 1978, p. 1789, § 1.)

JUDICIAL DECISIONS

Cited in Bruscato v. Gwinnett-Rockdale-Newton Cmty. Serv. Bd., 290 Ga. App. 638, 660 S.E.2d 440 (2008).

37-3-162. Patients' care and treatment rights.

  1. Each patient in a facility and each person receiving services for mental illness shall receive care and treatment that is suited to his needs and is the least restrictive appropriate care and treatment. Such care and treatment shall be administered skillfully, safely, and humanely with full respect for the patient's dignity and personal integrity.
  2. Each patient shall have the right to participate in his care and treatment. The board shall issue regulations to ensure that each patient participates in his care and treatment to the maximum extent possible. Unless the disclosure to the patient is determined by the chief medical officer or the patient's treating physician or psychologist to be detrimental to the physical or mental health of the patient, and unless a notation to that effect is made a part of the patient's record, the patient shall have the right to reasonable access to review his medical file, to be told his diagnosis, to be consulted on the treatment recommendation, and to be fully informed concerning his medication, including its side effects and available treatment alternatives.
  3. It is the duty of the chief medical officer to ensure that each patient receives such medical attention as is suitable to his condition and that no treatment shall be given which is not recognized as standard psychiatric treatment, except upon the written consent of the patient or, if applicable, his guardian having capacity to give such consent. If such consent is given by someone other than the patient or such guardian, court approval must be obtained after a full and fair hearing.
  4. If a patient hospitalized under this chapter is able to secure the services of a private physician or psychologist, he shall be allowed to see his physician or psychologist at any reasonable time. The chief medical officer is authorized and directed to establish regulations designed to facilitate examination and treatment which a patient may request from such private physician or psychologist.
  5. Every patient admitted to a facility under this chapter shall be examined by the staff of the admitting facility as soon as possible after his admission.

(Ga. L. 1958, p. 697, § 15; Ga. L. 1960, p. 837, § 14; Code 1933, § 88-514, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-502.3, enacted by Ga. L. 1969, p. 505, § 1; Code 1933, § 88-502.4, enacted by Ga. L. 1978, p. 1789, § 1; Ga. L. 1991, p. 1059, § 20; Ga. L. 1992, p. 1902, § 13.)

Cross references.

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

Law reviews.

- For article, "The Right to Refuse Psychiatric Treatment: Law and Medicine at the Interface," see 35 Emory L.J. 139 (1986).

JUDICIAL DECISIONS

Duty to safeguard and protect patient.

- Private hospital in which a patient is placed for treatment owes duty of safeguarding and protecting patient from any known or reasonably apprehended danger from the patient which may be due to the patient's mental incapacity, and to use ordinary and reasonable care to prevent such danger. Brawner v. Bussell, 50 Ga. App. 840, 179 S.E. 228 (1935).

Breach of duty is an issue of fact.

- Trial court did not err in denying a psychiatrist's motion for summary judgment in a patient's medical malpractice action because whether the psychiatrist breached duties arising from the psychiatrist-patient relationship was an issue of fact; pursuant to O.C.G.A. § 9-11-9.1, the patient presented expert testimony that the psychiatrist's breaches of the duty of care directly resulted in the foreseeable harm of the patient's attempting suicide. Peterson v. Reeves, 315 Ga. App. 370, 727 S.E.2d 171 (2012).

Failure to commit as breach of duty of care.

- Under some circumstances, the failure to commit may constitute a breach of the well-established duty of care physicians owe patients, and when a fact question has been created on that issue, the fact question is for the jury. Peterson v. Reeves, 315 Ga. App. 370, 727 S.E.2d 171 (2012).

RESEARCH REFERENCES

ALR.

- Criminal responsibility for physical measures undertaken in connection with treatment of mentally disordered patient, 99 A.L.R.3d 854.

Right of state prison authorities to administer neuroleptic or antipsychotic drugs to prisoner without his or her consent - state cases, 75 A.L.R.4th 1124.

Prisoner's right to die or refuse medical treatment, 66 A.L.R.5th 111.

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.

  1. It shall be the policy of this state to recognize the personal physical integrity of all patients.
  2. 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.
  3. 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.
  4. 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.
  5. 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, § 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.

37-3-164. "Representative," "substantial change" defined; consultation by patient's representative with treatment facility; notification of treatment change; guardian's consultation and notification rights.

  1. As used in this Code section, the term:
    1. "Representative" means the representative designated by the patient or, in the absence of such designation, the person selected as a representative in the order of listing under subsection (b) of Code Section 37-3-147 but shall not mean the patient's legal guardian. At the time of designation or selection, such representative shall be notified of his right to notice and to consultation under this Code section. In order to exercise such rights, the representative shall notify the department on a form supplied by the department of his election to exercise such rights. Upon receiving such notice, the department shall thereafter provide that representative the notification and consultation required by this Code section until that representative notifies the department to the contrary. A patient need not be notified of his representative's rights under this Code section unless such representative has elected to exercise such rights.
    2. "Substantial change" means a significant change including, but not limited to, the transfer within a facility of a patient from a unit primarily serving patients under 18 years of age to a unit primarily serving patients 18 years of age or over or the transfer of a patient from one facility to another but shall not include:
      1. Changes in the routine day-to-day care of the patient;
      2. Routine or periodic changes or adjustments in patient medication;
      3. Changes relating to routine or necessary medical care needs of the patient;
      4. Formulation of the patient's initial individualized service plan;
      5. Changes specifically contemplated in a service plan regarding which the representative has already received notification; or
      6. Discharge of the patient from the facility.
  2. At the time an adult patient's representative is designated or selected under Code Section 37-3-147 and at least every 12 months thereafter, such patient shall be notified that, unless objected to by the patient, such representative will be permitted to consult with the facility regarding the development of the patient's individualized service plan and the patient's treatment under such plan. The representative of a minor patient and the representative of an adult patient not objecting to consultation as authorized by this Code section may consult with the facility regarding the development of such patient's individualized service plan and the patient's treatment under such plan.
  3. At least seven days prior to any substantial change in the individualized service plan or treatment thereunder of an adult patient, the facility to which the patient has been admitted shall notify the patient that it will notify his representative of such change, unless the patient objects to such notification within 24 hours. A patient's representative shall be notified at least five days prior to any substantial change in such patient's individualized service plan or the treatment under such plan unless such patient is an adult and objects to such notification.
  4. In an emergency where the delay due to providing prior notification under subsection (c) of this Code section would create serious damage to the health of the patient, such a substantial change may be made without such prior notification. The patient's record shall specify the circumstances surrounding the emergency. Within 48 hours after the change, an adult patient shall be notified of his right to object within 24 hours to his representative's being notified of such change. A patient's representative shall be notified of such change within five days after such change occurs unless the patient is an adult and objects to such notification pursuant to subsection (c) of this Code section.
  5. Notification to representatives under subsections (c) and (d) of this Code section may be made by telephone if the date and time of such notification is entered on the patient's clinical record and if such notification is followed within 15 days by written notification.
  6. A patient's legal guardian shall have the consultation and notification rights of a patient's representative under subsections (b) through (d) of this Code section regardless of whether the patient is a minor or whether the patient objects to such consultation or notification. A patient for whom a legal guardian has been appointed shall not be notified of any right to object under this Code section.

(Code 1933, § 88-502.24, enacted by Ga. L. 1980, p. 1451, § 2.)

Cross references.

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

37-3-165. Mistreatment, neglect, or abuse of patients prohibited; use of medication, physical restraints, or seclusion restricted; standards for use of physical restraint.

  1. Mistreatment, neglect, or abuse in any form of any patient is prohibited. Medication in quantities that interfere with the patient's treatment program is prohibited. All medication, seclusion, or physical restraints are to be used solely for the purposes of providing effective treatment and protecting the safety of the patient and other persons.
  2. Physical restraints shall not be applied unless they are determined by an attending physician, a psychologist involved in the care and treatment of a patient, or a clinical nurse specialist in psychiatric/mental health involved in the care and treatment of the patient to be absolutely necessary in order to prevent a patient from seriously injuring himself or herself or others and are required by the patient's medical needs. Such determination shall expire after 24 hours. An attending physician, a psychologist involved in the care and treatment of a patient, or a clinical nurse specialist in psychiatric/mental health involved in the care and treatment of the patient must then make a new determination before the restraint may be continued. Every use of a restraint and the reasons therefor shall be made a part of the clinical record of the patient. A copy of each such entry or a summary of such entries shall be forwarded to the chief medical officer for review. A patient placed in physical restraint shall be checked at least every 30 minutes by staff trained in the use of restraints and a written record of such checks shall be made. When the application of a restraint is necessary in emergency situations to protect the patient from immediate injury to himself or herself or to others, restraints may be authorized by attending staff who must immediately report the action taken to the physician and any psychologist involved in the care and treatment of the patient. The facility shall have written policies and procedures which govern the use of restraints and which clearly delineate, in descending order, the personnel who can authorize the use of restraints in emergency situations.
  3. For the purposes of this Code section, those devices which restrain movement, but are applied for protection from accidental injury or required for the medical treatment of the patient's physical condition or for supportive or corrective needs of the patient, shall not be considered physical restraints. However, devices used in such situations must be authorized and applied in compliance with the facility's policies and procedures. The use of such devices shall be a part of the patient's individualized service plan.

(Ga. L. 1958, p. 697, § 16; Ga. L. 1960, p. 837, § 15; Code 1933, § 88-515, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-502.4, enacted by Ga. L. 1969, p. 505, § 1; Code 1933, § 88-502.5, enacted by Ga. L. 1978, p. 1789, § 1; Ga. L. 1982, p. 937, §§ 4, 9; Ga. L. 1997, p. 911, § 4.)

Cross references.

- Abuse or mistreatment of hospital patients, residents of long-term care facilities, and other institutions, §§ 31-7-9,31-8-50 et seq.,31-8-80 et seq.,31-8-100 et seq.

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

JUDICIAL DECISIONS

Duty to safeguard and protect patient.

- Private hospital in which a patient is placed for treatment owes duty of safeguarding and protecting patient from any known or reasonably apprehended danger from oneself which may be due to the patient's mental incapacity, and to use ordinary and reasonable care to prevent such danger. Brawner v. Bussell, 50 Ga. App. 840, 179 S.E. 228 (1935).

Recovery for wrongful death of insane patient.

- When patient, while in care of the hospital, and with knowledge of the authorities in charge, is temporarily insane and in a mental condition where the patient may possibly do injury and harm to the patient or others, and the authorities negligently fail to so care for and keep the patient, and by reason thereof the patient has access to a knife or other sharp instrument, which the patient uses to commit suicide, the authorities of the hospital are guilty of negligence as respects the authorities' duty to keep and care for the patient which is the proximate cause of the homicide, and are liable in damages therefor to the person legally entitled to recover. Brawner v. Bussell, 50 Ga. App. 840, 179 S.E. 228 (1935).

RESEARCH REFERENCES

ALR.

- Criminal responsibility for physical measures undertaken in connection with treatment of mentally disordered patient, 99 A.L.R.3d 854.

Construction and application of state patient bill of rights statutes, 87 A.L.R.5th 277.

37-3-166. Treatment of clinical records; when release permitted; scope of privileged communications; liability for disclosure; notice to sheriff of discharge.

  1. A clinical record for each patient shall be maintained. Authorized release of the record shall include but not be limited to examination of the original record, copies of all or any portion of the record, or disclosure of information from the record, except for matters privileged under the laws of this state.Such examination shall be conducted on hospital premises at reasonable times determined by the facility.The clinical record shall not be a public record and no part of it shall be released except:
    1. When the chief medical officer of the facility where the record is kept deems it essential for continued treatment, a copy of the record or parts thereof may be released to physicians or psychologists when and as necessary for the treatment of the patient;
    2. A copy of the record may be released to any person or entity designated in writing by the patient or, if appropriate, the parent of a minor, the legal guardian of an adult or minor, or a person to whom legal custody of a minor patient has been given by order of a court;

      (2.1) A copy of the record of a deceased patient or deceased former patient may be released to or in response to a valid subpoena of a coroner or medical examiner under Chapter 16 of Title 45, except for matters privileged under the laws of this state;

    3. When a patient is admitted to a facility, a copy of the record or information contained in the record from another facility, community mental health center, or private practitioner may be released to the admitting facility. When the service plan of a patient involves transfer of that patient to another facility, community mental health center, or private practitioner, a copy of the record or information contained in the record may be released to that facility, community mental health center, or private practitioner;
    4. A copy of the record or any part thereof may be disclosed to any employee or staff member of the facility when it is necessary for the proper treatment of the patient;
    5. A copy of the record shall be released to the patient's attorney if the attorney so requests and the patient, or the patient's legal guardian, consents to the release;
    6. In a bona fide medical emergency, as determined by a physician treating the patient, the chief medical officer may release a copy of the record to the treating physician or to the patient's psychologist;
    7. At the request of the patient, the patient's legal guardian, or the patient's attorney, the record shall be produced by the entity having custody thereof at any hearing held under this chapter;
    8. A copy of the record shall be produced in response to a valid subpoena or order of any court of competent jurisdiction, except for matters privileged under the laws of this state;

      (8.1) A copy of the record may be released to the legal representative of a deceased patient's estate, except for matters privileged under the laws of this state;

    9. Notwithstanding any other provision of law to the contrary, a law enforcement officer in the course of a criminal investigation may be informed as to whether a person is or has been a patient in a state facility, as well as the patient's current address, if known; and
    10. Notwithstanding any other provision of law to the contrary, a law enforcement officer in the course of investigating the commission of a crime on the premises of a facility covered by this chapter or against facility personnel or a threat to commit such a crime may be informed as to the circumstances of the incident, including whether the individual allegedly committing or threatening to commit a crime is or has been a patient in the facility, and the name, address, and last known whereabouts of any alleged patient perpetrator.
  2. In connection with any hearing held under this chapter, any physician, including any psychiatrist, or any psychologist who is treating or who has treated the patient shall be authorized to give evidence as to any matter concerning the patient, including evidence as to communications otherwise privileged under Code Section 24-5-501, 24-12-1, or 43-39-16.
  3. Any disclosure authorized by this Code section or any unauthorized disclosure of confidential or privileged patient information or communications shall not in any way abridge or destroy the confidential or privileged character thereof, except for the purpose for which such authorized disclosure is made. Any person making a disclosure authorized by this Code section shall not be liable to the patient or any other person, notwithstanding any contrary provision of Code Section 24-5-501, 24-12-1, or 43-39-16.
  4. When a sheriff transports an adult involuntary patient to a facility, that sheriff may request in writing that a notice of such patient's discharge be given to the sheriff; and such notice shall be provided if such patient or the patient's guardian consents in writing to the disclosure or if, in its discretion, the court ordering the involuntary treatment provides for such notice in the order issued pursuant to Code Section 37-3-81.1.

(Ga. L. 1958, p. 697, § 19; Ga. L. 1960, p. 837, § 18; Code 1933, § 88-518, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-502.10, enacted by Ga. L. 1969, p. 505, § 1; Code 1933, § 88-502.12, enacted by Ga. L. 1978, p. 1789, § 1; Ga. L. 1979, p. 723, §§ 4, 5; Ga. L. 1981, p. 985, § 1; Ga. L. 1987, p. 3, § 37; Ga. L. 1991, p. 1059, §§ 21, 22; Ga. L. 1994, p. 1072, § 2; Ga. L. 2011, p. 99, § 53/HB 24.)

The 2011 amendment, effective January 1, 2013, substituted "Code Section 24-5-501, 24-12-1," for "Code Section 24-9-21, 24-9-40," at the end of subsection (b) and at the end of the last sentence of subsection (c). See editor's note for applicability.

Editor's notes.

- Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Law reviews.

- For article, "Evidence," see 27 Ga. St. U.L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011). For note, "Tort Liability in Georgia for the Criminal Acts of Another," see 18 Ga. L. Rev. 361 (1984).

JUDICIAL DECISIONS

Protected communications.

- Georgia law has an exceedingly strict view as to what are privileged communications; not only "communications" but "admissions" are privileged; what is protected is not merely words, but "disclosures made in confidence." Mrozinski v. Pogue, 205 Ga. App. 731, 423 S.E.2d 405, cert. denied, 205 Ga. App. 901, 423 S.E.2d 405 (1992).

Records producible in child custody proceedings.

- When ex-husband, in a child custody proceeding, duly subpoenaed ex-wife's clinical record from the psychiatric hospital where she had voluntarily admitted herself, that record was producible, except for the portions containing any privileged communications. Weksler v. Weksler, 173 Ga. App. 250, 325 S.E.2d 874 (1985).

Mental health records of deaf and speechless defendant.

- When the mental health records of an incompetent, deaf, and speechless defendant contain both privileged communications under O.C.G.A. §§ 24-9-21(5) and43-39-16, and nonprivileged communications, records which contain privileged material are not to be produced in response to a request for production, but the remaining documents must be produced. Annandale at Suwanee, Inc. v. Weatherly, 194 Ga. App. 803, 392 S.E.2d 27 (1990).

Psychiatric medical records are not absolutely privileged. Donalson v. State, 192 Ga. App. 37, 383 S.E.2d 588, cert. denied, 192 Ga. App. 901, 383 S.E.2d 588 (1989), 493 U.S. 1030, 110 S. Ct. 742, 107 L. Ed. 2d 760 (1990).

In an action arising from the unauthorized release of plaintiff's psychiatric records by a hospital authority, under the facts of the case, and because of the strong public policy of maintaining strict compliance with the requirements governing release of psychiatric records, the trial court erred in granting summary judgment to defendants. Sletto v. Hospital Auth., 239 Ga. App. 203, 521 S.E.2d 199 (1999).

Records held not subject to inspection.

- Mental health records of a person who allegedly shot a number of people in a shopping mall were "clinical records" within the meaning of O.C.G.A. § 37-3-1(2), and therefore not subject to inspection under the Open Records Act, O.C.G.A. § 50-14-1 et seq. Southeastern Legal Found., Inc. v. Ledbetter, 260 Ga. 803, 400 S.E.2d 630 (1991).

Parent's standing to sue for unauthorized disclosure of child's records.

- Father had standing to file suit for unauthorized disclosure of his minor daughter's clinical records and for unauthorized release of privileged material regarding his minor daughter. Mrozinski v. Pogue, 205 Ga. App. 731, 423 S.E.2d 405, cert. denied, 205 Ga. App. 901, 423 S.E.2d 405 (1992).

Criminal defense attorney who subpoenaed records from a psychiatric hospital was entitled to rely on the presumption that the records the attorney received from the hospital were either non-privileged or that the hospital first obtained a waiver from the patient. Karpowicz v. Hyles, 247 Ga. App. 292, 543 S.E.2d 51 (2000).

Cited in Tingle v. Harvill, 125 Ga. App. 312, 187 S.E.2d 536 (1972); Lipsey v. State, 170 Ga. App. 770, 318 S.E.2d 184 (1984).

OPINIONS OF THE ATTORNEY GENERAL

Hospital is not authorized to release clinical records of any patient, whether alive or deceased, unless the request for such release falls within the enumerated exceptions of this statute; since a request by a relative does not fall within any of the enumerated exceptions, the law will not permit the hospital to release clinical records to such a person. 1974 Op. Att'y Gen. No. U74-86 (see O.C.G.A. § 37-3-166).

State Board of Pardons and Paroles should be given access to "Discharge Summaries" from Central State Hospital on inmates being considered for parole; such disclosure would not be a breach of confidentiality. 1973 Op. Att'y Gen. No. 73-54.

RESEARCH REFERENCES

ALR.

- Testamentary capacity as affected by use of intoxicating liquor or drugs, 9 A.L.R.3d 15.

37-3-167. Right of patient to examine his records and to request correction of inaccuracies; promulgation of rules and regulations; judicial supervision of files and records relating to proceedings under this chapter.

  1. Except as provided in subsection (b) of Code Section 37-3-162, every patient shall have the right to examine all medical records kept in the patient's name by the department or the facility where the patient was hospitalized or treated.
  2. Every patient shall have the right to request that any inaccurate information found in his medical record be corrected.
  3. The board shall promulgate reasonable rules and regulations to implement subsections (a) and (b) of this Code section. Nothing contained in this Code section shall be construed to require the deletion of information by the department nor constrain the department from destroying patient records after a reasonable passage of time.
    1. Notwithstanding paragraphs (7) and (8) of Code Section 15-9-37 or any provisions of Article 4 of Chapter 18 of Title 50, all files and records of a court in a proceeding under this chapter since September 1, 1978, shall remain sealed and shall be open to inspection only upon order of the court issued after petition by, or notice to, the patient and subject to the provisions of Code Section 37-3-166 pertaining to the medical portions of the record.
    2. If any official or employee of any court or archival facility assists a person who is not an official or employee of that court or facility in attempting to gain access to any court record which the official or employee knows concerns examination, evaluation, treatment, or commitment for mental illness, such record was created prior to September 1, 1978, and such record contains no information concerning the patient which is ordinarily public, such as the fact that a guardianship was created, such official or employee shall seal the record if it is in the possession of the court or facility and shall inform the person seeking access that if such a record exists it is open to inspection only upon order of the court issued after petition by, or notice to, the patient and subject to the provisions of Code Section 37-3-166 pertaining to the medical portions of the record.
    3. Upon a petition for access to such files or records referred to in paragraphs (1) and (2) of this subsection, the court should allow inspection by the person who is the subject of a record unless there are compelling reasons why it should not but should require anyone other than the person who is the subject of a court record to show compelling reasons why the record should be opened. If access is granted, the court order shall restrict dissemination of the information to certain persons or for certain purposes or both.
    4. The court may refer to such files and records referred to in paragraphs (1) and (2) of this subsection in any subsequent proceeding under this chapter concerning the same patient on condition that the files and records of such subsequent proceeding will then be sealed in accordance with this subsection. The court may permit authorized representatives of recognized organizations compiling statistics for proper purposes to inspect and make abstracts from official records, but without personal identifying information and under whatever conditions upon their use and distribution the court may deem proper. The court may punish by contempt any violations of any such conditions.

(Code 1933, § 88-502.13, enacted by Ga. L. 1978, p. 1789, § 1; Ga. L. 1995, p. 612, § 2.)

Cross references.

- Release of medical information generally, § 24-12-1 et seq.

Law reviews.

- For note on the 1995 amendment of this Code section, see 12 Ga. St. U.L. Rev. 258 (1995).

JUDICIAL DECISIONS

Procedure for obtaining records.

- Former jail detainee was not entitled to mandamus to require a sheriff to provide the detainee with copies of records of the detainee's medical treatment while the detainee was incarcerated; even though the detainee had a right to the records under O.C.G.A. § 37-3-167, because the detainee had not availed oneself of regulatory procedures to secure the records, the detainee did not meet the detainee's burden of showing that the detainee lacked an adequate legal remedy. Thompson v. Paulk, 265 Ga. 479, 457 S.E.2d 665 (1995).

37-3-168. Right of patient's attorney to interview physicians, psychologists, and staff attending patient; establishment of regulations as to release of information to patient's attorney.

The patient's attorney shall have the right, at reasonable times, to interview the physician or psychologist and staff who have attended or are now attending the patient in any facility and to have the patient's records interpreted by them. The chief medical officer is authorized and directed to establish reasonable regulations to make available to the patient's attorney all such information in the possession of the facility as the attorney requires in order to advise and represent the patient concerning his hospitalization.

(Code 1933, § 88-502.17, enacted by Ga. L. 1969, p. 505, § 1; Code 1933, § 88-502.20, enacted by Ga. L. 1978, p. 1789, § 1; Ga. L. 1991, p. 1059, § 23.)

Cross references.

- Release of medical information generally, § 24-12-1 et seq.

CHAPTER 4 HABILITATION OF THE DEVELOPMENTALLY DISABLED GENERALLY

Article 1 General Provisions.
Article 2 Procedures for Obtaining Services from the Department.
Part 1 GENERAL PROVISIONS.
Part 2 COURT ORDERED SERVICES.
Article 3 Placement, Transfer, and
Transportation of Developmentally Disabled Persons
Undergoing Habilitation, Generally.
Article 4 Payment of Expenses of Care and
Transportation of Developmentally Disabled Persons Under-
going Habilitation, Generally.
Article 5 Rights and Privileges of Developmentally
Disabled Persons Undergoing Habilitation, Their Rep-
resentatives, etc., Generally.
Part 1 GENERAL PROVISIONS.
Part 2 Rights and Privileges as to Manner
of Habilitation and as to Maintenance and Release
of Clinical Records. Cross references. - Plea in criminal case that defendant was insane or mentally incompetent at time act committed or is mentally incompetent to stand trial, § 17-7-130 et seq.

Protective services for abused, neglected, or exploited disabled adults, T. 30, C. 5.

Reporting of abuse or exploitation of residents of long-term care facilities, § 31-8-80 et seq.

Rights of persons residing in long-term care facilities generally, § 31-8-100 et seq.

Administrative Rules and Regulations.

- Rules and regulations on "Mental Health and Mental Retardation and Substance Abuse," Official Compilation of the Rules and Regulations of the State of Georgia, Department of Human Resources, Chapters 290-4-1 and 290-4-3 et seq.

Law reviews.

- For article, "The Olmstead Decision: The Road to Dignity and Freedom," see 26 Ga. St. U.L. Rev. 651 (2010). For article, "Olmstead's Promise and Cohousing's Potential," see 26 Ga. St. U.L. Rev. 663 (2010). For article, "From the Inside Out: Personal Perspectives of Six Georgians on Their Institutional Experiences," see 26 Ga. St. U.L. Rev. 741 (2010). For article, "The Constitutional Right to Community Services," see 26 Ga. St. U.L. Rev. 763 (2010). For article, "Reconsidering Makin v. Hawaii: The Right of Medicaid Beneficiaries to Home-Based Services as an Alternative to Institutionalization," see 26 Ga. St. U.L. Rev. 803 (2010). For article, "The Potential and Risks of Relying on Title II's Integration Mandate to Close Segregated Institutions," see 26 Ga. St. U.L. Rev. 855 (2010). For article, "Beyond Residential Segregation: The Application of Olmstead to Segregated Employment Settings," see 26 Ga. St. U.L. Rev. 875 (2010). For article, "From Almshouses to Nursing Homes and Community Care: Lessons from Medicaid's History," see 26 Ga. St. U.L. Rev. 937 (2010). For note, "Deinstitutionalization: Georgia's Progress in Developing and Implementing an 'Effectively Working Plan' as Required by Olmstead v. L.C. ex rel," see 25 Ga. St. U.L. Rev. 699 (2009).

JUDICIAL DECISIONS

Cited in Whitfield v. State, 158 Ga. App. 660, 281 S.E.2d 643 (1981); Clayton v. State, 160 Ga. App. 908, 288 S.E.2d 621 (1982); Moses v. State, 167 Ga. App. 556, 307 S.E.2d 35 (1983).

ARTICLE 1 GENERAL PROVISIONS

37-4-1. Declaration of policy.

The State of Georgia recognizes the capacity of all of its citizens, including those who are developmentally disabled, to be both personally and socially productive; and it further recognizes its obligation to provide aid in the form of a coordinated system of community facilities, programs, and services to developmentally disabled citizens so that they may achieve a greater measure of independence and fulfillment and more fully enjoy their rights of citizenship.

(Code 1933, § 88-2501, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1978, p. 1826, § 1; Ga. L. 2009, p. 453, § 3-5/HB 228.)

37-4-2. Definitions.

As used in this chapter, the term:

  1. "Client" means any person with a developmental disability who seeks habilitation under this chapter or any person for whom such habilitation is sought.
  2. "Clinical record" means a written record pertaining to an individual client and includes habilitation record, progress notes, charts, admission and discharge data, and all other information which is recorded by a facility and which pertains to the client's habilitation. Such other information as may be required by rules and regulations of the board shall also be included.
  3. "Community services" means all services deemed reasonably necessary by the Department of Behavioral Health and Developmental Disabilities to provide for the education, training, habilitation, and care of developmentally disabled individuals. Such services shall include, but not be limited to, diagnostic and evaluation services, day-care and training services, work activity services, community residential services such as group family care homes, transportation services, social services, medical services, and specified home services.
  4. "Comprehensive habilitation team" means and shall consist of a group of persons with special training and experience in the assessment of needs and provision of services for developmentally disabled persons. The group shall include, at a minimum, persons qualified to provide social, psychological, medical, and other services. The department shall specify the qualifications of the individuals who comprise a comprehensive habilitation team and shall ensure that such teams are located throughout the state so as to provide diagnostic, evaluation, and habilitation services for all citizens of Georgia.
  5. "Court" means:
    1. In the case of an individual who is 17 years of age or older, the probate court of the county of residence of the client or the county in which such client is found. Notwithstanding Code Section 15-9-13, in any case in which the judge of said probate court is unable to hear a case brought under this chapter within the time required for such hearing, said judge shall appoint a person to serve and exercise all the jurisdiction of the probate court in such case. Any person so appointed shall be a member of the State Bar of Georgia and shall be otherwise qualified for his or her duties by training and experience. Such appointment may be made on a case-by-case basis or by making a standing appointment of one or more persons. Any person receiving such standing appointment shall serve at the pleasure of the judge making the appointment or the judge's successor in office to hear such cases if and when necessary. The compensation of a person so appointed shall be as agreed upon by the judge who makes the appointment and the person appointed with the approval of the governing authority of the county for which such person is appointed and shall be paid from the county funds of said county. All fees collected for the services of such appointed person shall be paid into the general funds of the county served; or
    2. In the case of an individual who is under the age of 17 years, the juvenile court of the county of residence of the client or the county in which such client is found.
  6. "Facility" means any state owned or state operated institution utilized 24 hours a day for the habilitation and residence of persons who are developmentally disabled, any facility operated or utilized for such purpose by the United States Department of Veterans Affairs or any other federal agency, and any other facility within the State of Georgia approved for such purpose by the department.
  7. "Full and fair hearing" or "hearing" means a proceeding before an administrative law judge, under Code Section 37-4-42, or before a court, as defined in paragraph (5) of this Code section. The hearing may be held in a regular courtroom or in an informal setting, in the discretion of the administrative law judge or the court, but the hearing shall be recorded electronically or by a qualified court reporter. The client shall be provided with effective assistance of counsel. If the client cannot afford counsel, the court shall appoint counsel for him or her or the administrative law judge shall have the court appoint such counsel. The client shall have the right to confront and cross-examine witnesses and to offer evidence. The client shall have the right to subpoena witnesses and to require testimony before the administrative law judge or in court in person or by deposition from any physician upon whose evaluation the decision of the administrative law judge or the court may rest. The client shall have the right to obtain a continuance for any reasonable time for good cause shown. The administrative law judge and the court shall apply the rules of evidence applicable in civil cases. The burden of proof shall be upon the party seeking treatment of the client. The standard of proof shall be by clear and convincing evidence. At the request of the client, the public may be excluded from the hearing, and the client need not be present if the court consents; in either of these events, the record shall reflect the reason for the administrative law judge's or the court's action.
  8. "Habilitation" means the process by which program personnel help clients acquire and maintain those life skills which will enable them to cope more effectively with the demands of their own persons and of their environment and to raise the level of their physical, mental, social, and vocational abilities.
  9. "Individualized program plan" means a proposed habilitation program written in behavioral terms, developed by the comprehensive habilitation team, and specifically tailored to the needs of an individual client. Each plan shall include:
    1. A statement of the nature of the client's specific problems and specific needs;
    2. A description of intermediate and long-range habilitation goals and a projected timetable for their attainment;
    3. A description of the proposed habilitation program and its relation to habilitation goals;
    4. Identification of the facility and types of professional personnel responsible for execution of the client's habilitation program;
    5. A statement of the least restrictive environment necessary to achieve the purposes of habilitation, based upon the needs of the client;
    6. An explanation of criteria for acceptance or rejection of alternative environments for habilitation; and
    7. Proposed criteria for release of the client into less restrictive habilitation environments upon obtaining specified habilitation goals.
  10. "Least restrictive alternative," "least restrictive environment," or "least restrictive appropriate habilitation" means that which is the least restrictive available alternative, environment, or appropriate habilitation, as applicable, within the limits of state funds specifically appropriated therefor.
  11. "Person in charge of a client's habilitation" means a superintendent or regional state hospital administrator of a facility, a case manager, or any other service provider designated by the department to have overall responsibility for implementation of a client's individualized program plan. The department shall designate such a person for each individual ordered to receive services from the department under this chapter.
  12. "Representatives" means the persons appointed as provided in Code Section 37-4-107 to receive any notice under this chapter.
  13. "Superintendent" means the chief administrative officer who has overall management responsibility at any facility, other than a regional state hospital or state owned or operated community program, receiving developmentally disabled persons under this chapter or an individual appointed as the designee of such superintendent.

(Code 1933, § 88-2502, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1972, p. 700, § 3; Ga. L. 1978, p. 1826, § 1; Code 1933, § 88-2503.12, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 1979, p. 734, § 1; Ga. L. 1986, p. 1092, § 1; Ga. L. 1990, p. 45, § 1; Ga. L. 1991, p. 94, § 37; Ga. L. 2002, p. 1324, § 1-12; Ga. L. 2009, p. 453, § 3-13/HB 228; Ga. L. 2011, p. 337, § 1/HB 324.)

The 2011 amendment, effective July 1, 2011, in paragraph (4), deleted "'evaluation team' or 'comprehensive'" following "'Comprehensive" at the beginning, substituted "persons. The group" for "persons, which group" at the end of the first sentence, and deleted "a comprehensive evaluation team or" following "who comprise" in the third sentence; deleted former paragraphs (6) and (7), relating to developmentally disabled persons in need of community services and requiring temporary and immediate care; redesignated former paragraphs (8) through (15) as present paragraphs (6) through (13), respectively; in paragraph (7), substituted "administrative law judge" for "hearing examiner" throughout, substituted "an administrative law judge" for "a hearing examiner" in the first sentence, and substituted "administrative law judge's" for "hearing examiner's" in the last sentence; and substituted "habilitation team" for "evaluation team" in the first sentence of the introductory language of paragraph (9).

37-4-3. Authority of board to issue regulations; powers of department generally.

  1. The board shall issue regulations to implement this chapter in accordance with the intent of this chapter to safeguard the rights of developmentally disabled persons.
  2. In addition to the other powers provided by this chapter, the department shall have the authority:
    1. To enforce the regulations issued by the board;
    2. To prescribe the forms of applications, records, medical certificates, and any other forms required or used under this chapter and the information required to be contained therein;
    3. To require such reports from any facility as it may find necessary to the performance of its duties or functions;
    4. To visit facilities regularly to review the procedures applied to all clients;
    5. To determine the care, treatment, education, habilitation, or other specialized services being given all clients;
    6. To investigate complaints and make reports and recommendations relative to the same; and
    7. To make effective such procedures and orders as may be appropriate to carry out this chapter.

      Notwithstanding the powers granted to the department under this Code section, the requirements of this Code section as to determination of care, treatment, education, habilitation, or other specialized services of clients and the investigation of complaints shall not apply to clients who are being cared for in a facility operated by or under the control of the United States Department of Veterans Affairs or any other federal agency.

(Code 1933, § 88-2511, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-2509.1, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 1990, p. 45, § 1; Ga. L. 2009, p. 453, § 3-5/HB 228.)

37-4-4. Coordination of training programs for the developmentally disabled.

The State Department of Education is authorized and directed to coordinate its program for training the developmentally disabled with the programs of the Department of Behavioral Health and Developmental Disabilities. The Department of Education is authorized and empowered to expend funds appropriated to or available to it for such purposes.

(Ga. L. 1963, p. 259, § 5; Ga. L. 1966, p. 374, § 7; Ga. L. 2009, p. 453, §§ 3-2, 3-5/HB 228.)

Cross references.

- Offering of instructional services under the "Adequate Program for Education in Georgia Act," § 20-2-150 et seq.

37-4-5. Validity of hospitalization orders entered before September 1, 1978; establishment of regulations authorizing continued care for clients receiving services pursuant to orders entered before September 1, 1978; validity of hospitalization orders entered before July 1, 2011.

  1. No hospitalization of a developmentally disabled person lawful before September 1, 1978, shall be deemed unlawful because of the enactment of this chapter. The board is authorized to establish reasonable regulations to require that the superintendent or regional state hospital administrator of each facility where developmentally disabled persons are in residence apply under Code Section 37-4-42 for an order authorizing continued care of a client for whom such care is necessary and who was initially hospitalized under an order of a court prior to September 1, 1978. Such prior orders of hospitalization entered by the courts, unless superseded at an earlier date by an order under this chapter, or unless such prior orders expire under their own terms at an earlier date, shall remain valid until 12 months following September 1, 1978, after which all such orders shall be null and void and of no effect.
  2. No hospitalization of a person with developmental disabilities which was lawful before July 1, 2011, shall be deemed unlawful because of the repeal of former Code sections under Article 2 of this chapter.

(Code 1933, § 88-2509.6, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 2002, p. 1324, § 1-19; Ga. L. 2009, p. 453, § 3-5/HB 228; Ga. L. 2011, p. 337, § 2/HB 324.)

The 2011 amendment, effective July 1, 2011, designated the existing provisions as subsection (a) and added subsection (b).

37-4-6. Immunity from liability for actions taken in good faith compliance with admission and discharge provisions of chapter.

Any physician, psychologist, peace officer, attorney, or health official or any hospital official, agent, or other person employed by a private hospital or at a facility operated by the state, by a political subdivision of the state, or by a hospital authority created pursuant to the "Hospital Authorities Law," Article 4 of Chapter 7 of Title 31 who acts in good faith in compliance with the admission and discharge provisions of this chapter shall be immune from civil or criminal liability for his actions in connection with the admission of a client to a facility or the discharge of a client from a facility.

(Code 1933, § 88-2503.23, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 1991, p. 1059, § 24.)

Law reviews.

- For note on 1991 amendment of this Code section, see 8 Ga. St. U.L. Rev. 121 (1992).

RESEARCH REFERENCES

ALR.

- Liability of mental care facility for suicide of patient or former patient, 19 A.L.R.4th 7.

37-4-7. Apprehension by peace officer of developmentally disabled person who leaves facility without permission.

If, during the period of habilitation authorized by this chapter a client escapes or otherwise leaves a facility without permission, the facility may advise any peace officer that the client has escaped or otherwise left the facility without permission; and the peace officer shall be authorized to take said client into custody and return him to such facility.

(Code 1933, § 88-2509.9, enacted by Ga. L. 1979, p. 734, § 8.)

37-4-8. Approval of private facilities; powers and duties of private facilities; right to deny admission.

Any private facility within this state may be approved as a facility for the habilitation of developmentally disabled persons by the department at the request of or with the consent of the governing officers of such private facility. When so approved, the private facility shall have all powers given to the corresponding type of facility under this chapter for evaluation and habilitation and shall have all duties and obligations of such facilities imposed by this chapter, except that any such private facility may decline to accept any client who is unable to pay it for habilitation services or for whom it has no available space.

(Code 1933, § 88-2509.5, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 2009, p. 453, § 3-5/HB 228.)

RESEARCH REFERENCES

ALR.

- Applicability and application of zoning regulations to single residences employed for group living of mentally retarded persons, 32 A.L.R.4th 1018.

Validity, construction, and effect of statute requiring consultation with, or approval of, local governmental unit prior to locating group home, halfway house, or similar community residence for the mentally ill, 51 A.L.R.4th 1096.

ARTICLE 2 PROCEDURES FOR OBTAINING SERVICES FROM THE DEPARTMENT

PART 1 G ENERAL PROVISIONS

37-4-20 through 37-4-22.

Reserved. Repealed by Ga. L. 2011, p. 337, § 3/HB 324, effective July 1, 2011.

Code Commission notes.

- Former Code Section37-4-21 was repealed effective July 1, 2011, by operation of Ga. L. 2011, p. 337, § 3. However, Ga. L. 2011, p. 227, § 25, effective July 1, 2011, purported to amend Code Section37-4-21 to substitute "a personal care home, as defined in subsection (a) of Code Section31-7-12, or an assisted living community, as defined in Code Section31-7-12.2" for "or a personal care home, as defined in Code Section31-7-12" in the last sentence of subsection (c). For effect of subsequent amendment of a repealed statute, see Lampkin v. Pike, 115 Ga. 827 (1902).

Editor's notes.

- These Code sections were based on Code 1933, §§ 88-2504.1 through 88-2504.3, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 1979, p. 734, § 5; Ga. L. 1980, p. 1160, § 1; Ga. L. 1982, p. 3, § 37; Ga. L. 2002, p. 1324, § 1-18; Ga. L. 2009, p. 453, § 3-5/HB 228; Ga. L. 2010, p. 878, § 37/HB 1387.

PART 2 C OURT ORDERED SERVICES

37-4-40. Filing petition with court for according of program of services to developmentally disabled person; order for examination of person by comprehensive evaluation team; report by team; petition hearing; procedure upon finding that department services are necessary.

Reserved. Repealed by Ga. L. 2011, p. 337, § 4/HB 324, effective July 1, 2011.

Editor's notes.

- This Code section was based on Ga. L. 1919, p. 377, § 4; Ga. L. 1931, p. 7, § 41; Code 1933, § 35-304; Code 1933, §§ 88-2506, 88-2507, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-2504, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 1979, p. 734, § 4; Ga. L. 1982, p. 3, § 37; Ga. L. 1985, p. 926, § 1; Ga. L. 1992, p. 2531, § 1; Ga. L. 2002, p. 1324, § 1-18; Ga. L. 2009, p. 453, §§ 3-5, 3-14/HB 228.

37-4-40.1 through 37-4-40.5

Repealed by Ga. L. 2011, p. 337, § 5/HB 324, effective July 1, 2011.

Editor's notes.

- These Code sections were based on Code 1981, § 37-4-40.1 through37-4-40.5, enacted by Ga. L. 1986, p. 1092, § 2; Ga. L. 1987, p. 3, § 37; Ga. L. 1992, p. 1902, § 14; Ga. L. 1993, p. 1445, § 17.4; Ga. L. 2002, p. 1324, § 1-18; Ga. L. 2009, p. 453, §§ 3-5/HB 228, 3-6/HB 228.

Ga. L. 2015, p. 5, § 37/HB 90, effective March 13, 2015, part of an Act to revise, modernize, and correct the Code, deleted the reservation of these Code sections.

37-4-41. Procedure upon failure of or client's noncompliance with court ordered habilitation program.

Reserved. Repealed by Ga. L. 2011, p. 337, § 4/HB 324, effective July 1, 2011.

Editor's notes.

- This Code section was based on Code 1933, § 88-2505, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 2002, p. 1324, § 1-18.

37-4-42. Procedure for continuation of court ordered habilitation.

  1. If it is necessary to continue habilitation of a client beyond the end of the period during which the facility is currently authorized by order of a court or of an administrative law judge to retain the client, the superintendent or regional state hospital administrator, prior to the expiration of the period, shall seek an order authorizing such continued habilitation in the manner provided in this Code section.
  2. A Committee for Continued Habilitation Review shall be established by the superintendent or regional state hospital administrator of each facility and shall consist of not less than five persons who meet the same requirements as those persons eligible to be members of the comprehensive habilitation team as defined in Code Section 37-4-2. The committee may conduct its meetings with a quorum of any three members. The function of this committee shall be to review and evaluate the updated individualized program plan and to report to the superintendent or regional state hospital administrator its recommendations concerning the client's need for continued habilitation. No person who has responsibility for the habilitation of the individual client for whom continued habilitation is requested shall serve on any committee which reviews such individual's case.
  3. If the superintendent or regional state hospital administrator desires to seek an order under this Code section authorizing continued habilitation for up to 12 months beyond the expiration of the currently authorized period of habilitation, he or she shall first file a notice of such intended action with the Committee for Continued Habilitation Review, which shall be forwarded to the committee at least 60 days prior to the expiration of that period.
  4. Within ten days of the date of the notice, the committee shall meet to consider the matter of the superintendent's or regional state hospital administrator's intention to seek an order for continued habilitation. Prior to the committee's meeting, the client and his or her representatives shall be notified of the following: the purpose of such meeting, the time and place of such meeting, their right to be present at such meeting, and their right to present any alternative individualized program plan secured at their expense. In those cases in which the client will not or cannot appear, at least one member of the committee will make all reasonable efforts to interview the client and report to the committee. An updated individualized program plan for the client shall be presented to the committee. The committee shall report to the superintendent or regional state hospital administrator or his or her designee, other than the attending physician or a member of the committee, its written recommendations along with any minority recommendations which may also be submitted. Such report shall specify whether or not the client is a developmentally disabled person requiring continued habilitation and whether continued habilitation is the least restrictive alternative available.
  5. If after considering the committee's recommendations and minority recommendations, if any, the superintendent or regional state hospital administrator or his or her designee, other than the attending physician or a member of the committee, determines that the client is not a developmentally disabled person requiring continued habilitation, the client shall be discharged from the facility pursuant to subsection (b) of Code Section 37-4-44.
  6. If after considering the committee's recommendations and minority recommendations, if any, the superintendent or regional state hospital administrator or his or her designee, other than the client's attending physician or a member of the committee, determines that the client is a developmentally disabled person requiring continued habilitation, he or she shall, within ten days after receiving the committee's recommendations, serve a petition for an order authorizing continued habilitation along with copies of the updated individualized program plan and the committee's report on the designated office within the department and shall also serve such petition along with a copy of the updated individualized program plan on the client. The petition shall contain a plain and simple statement that the client or his or her representatives may file a request for a hearing with the Office of State Administrative Hearings within 15 days after service of the petition, that the client has a right to counsel at the hearing, that the client or his or her representatives may apply immediately to the administrative law judge to have counsel appointed if the client cannot afford counsel, and that the administrative law judge will appoint counsel for the client unless the client indicates in writing that he or she will have retained counsel by the time set for hearing or does not desire to be represented by counsel.
  7. If a hearing is not requested by the client or the representatives within 15 days after service of the petition on the client and his or her representatives, the administrative law judge shall make an independent review of the committee's report, the updated individualized program plan, and the petition. If he or she concludes that continued habilitation may not be necessary or if he or she finds any member of the committee so concluded, then he or she shall order that a hearing be held pursuant to subsection (h) of this Code section. If he or she concludes that continued habilitation is necessary, then he or she shall order continued habilitation for a period not to exceed one year.
  8. If a hearing is requested within 15 days after service of the petition on the client and his or her representatives or if the administrative law judge orders a hearing pursuant to subsection (g) of this Code section, the administrative law judge shall set a time and place for the hearing to be held within 25 days of the time the administrative law judge receives the request, but, in any event, no later than the day on which the current order for habilitation expires. Notice of the hearing shall be served on the client, his or her representatives, the facility, and, when appropriate, on counsel for the client. The administrative law judge, within his or her discretion, may grant a change of venue for the convenience of parties or witnesses. Such hearing shall be a full and fair hearing, except that the client's attorney, when the client is unable to attend the hearing and is incapable of consenting to a waiver of his or her appearance, may move that the client not be required to appear; however, the record shall reflect the reasons for the administrative law judge's actions.
  9. After such hearing, the administrative law judge may order the client's continued habilitation for a period not to exceed one year, subject to the power of the superintendent or regional state hospital administrator to discharge the client under subsection (b) of Code Section 37-4-44; provided, however, that if the administrative law judge finds that the client is not developmentally disabled or is not in need of care, training, education, habilitation, or other specialized services which the client is then receiving, the administrative law judge shall dismiss the petition.

(Code 1933, § 88-2507, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 1979, p. 734, § 7; Ga. L. 1985, p. 926, § 2; Ga. L. 2002, p. 1324, § 1-18; Ga. L. 2009, p. 453, § 3-5/HB 228; Ga. L. 2011, p. 337, § 6/HB 324.)

The 2011 amendment, effective July 1, 2011, inserted "superintendent or", inserted "or her", and inserted "or she" throughout this Code section; in subsection (g) and throughout subsection (h), substituted "administrative law judge" for "hearing examiner"; in subsection (a), substituted "authorized by order of a court or of an administrative law judge" for "authorized under this chapter"; in subsection (b), substituted "habilitation team" for "evaluation team" in the first sentence; in subsection (c), deleted "notice" preceding "shall be forwarded" near the end; in subsection (d), inserted "superintendent's or" in the first sentence, substituted "Such report shall" for "Such report will" in the last sentence; in subsection (f), substituted "the Office of State Administrative Hearings" for "a hearing examiner appointed pursuant to Code Section 37-4-43" and twice substituted "administrative law judge" for "court" in the last sentence; in subsection (h), substituted "administrative law judge's" for "hearing examiner's" near the end of the last sentence, and designated the last sentence of subsection (h) as present subsection (i); in subsection (i), substituted "administrative law judge" for "hearing examiner may issue any order which the court is authorized to issue under subsection (e) of Code Section 37-4-40, provided that the hearing examiner", and added the proviso; and deleted former subsection (i), which read: "The hearing examiner for a client who was admitted under the jurisdiction of the juvenile court and who reaches the age of 17 without having had a full and fair hearing pursuant to any provisions of this chapter or without having waived such hearing shall order that a hearing be held pursuant to subsection (h) of this Code section."

Law reviews.

- For article, "Disability Constitutional Law," see 63 Emory L. J. 527 (2014). For article, "Disability Constitutional Law," see 63 Emory L. J. 527 (2014). For comment, "Involuntary Commitment of People with Mental Retardation: Ensuring All of Georgia's Citizens Receive Adequate Procedural Due Process," see 58 Mercer L. Rev. 711 (2007).

JUDICIAL DECISIONS

Continuing presumption of insanity follows prior judicial determination.

- When the defendant in a release hearing had been examined three separate times to determine mental competency in relation to a criminal trial, and there had been a judicial determination that the defendant not mentally responsible for the defendant's crimes and apparently not competent to stand trial, there existed a continuing presumption of insanity at the time of the release hearing. Pitts v. State, 151 Ga. App. 691, 261 S.E.2d 435 (1979).

When prior determination based on clear and convincing evidence, as when the trial court had for the court's consideration the evidence of numerous prior committals for psychiatric treatment, evidence that following release from such structured treatment, the defendant had suffered decompensation and had often become violent and aggressive toward oneself or others when not undergoing a regular course of treatment and medication, even though the state did not affirmatively offer it or any additional evidence at the release hearing. Pitts v. State, 151 Ga. App. 691, 261 S.E.2d 435 (1979).

Precepts of due process require a clear and convincing standard of proof in a civil proceeding to commit an individual to a mental hospital involuntarily. Pitts v. State, 151 Ga. App. 691, 261 S.E.2d 435 (1979).

Cited in Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980); Benham v. Edwards, 501 F. Supp. 1050 (N.D. Ga. 1980).

OPINIONS OF THE ATTORNEY GENERAL

Prerequisites before commitment of mentally retarded child to department.

- Pursuant to former Code 1933, § 24A-2801 (see O.C.G.A. § 15-11-40), a mentally retarded child may not properly be committed to the Department of Human Resources unless the department first advises the court that the department has appropriate facilities available to serve that particular child; similarly, a mentally ill child may not be committed unless the child is in need of hospitalization because the child is likely to injure oneself or others if not hospitalized or because, due to the child's mental illness, the child is incapable of caring for the child's physical health and safety. 1976 Op. Att'y Gen. No. 76-111.

37-4-43. Appointment of hearing examiners for hearings as to continued habilitation; powers of hearing examiners generally; issuance of subpoenas; appointment of counsel.

Reserved. Repealed by Ga. L. 2011, p. 337, § 4/HB 324, effective July 1, 2011.

Editor's notes.

- This Code section was based on Code 1933, § 88-2506, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 1979, p. 734, § 6.

37-4-44. Periodic review of individualized program plan; discharge or transfer to another facility upon change in client's needs; notice of discharge or transfer.

  1. Each individualized program plan shall be reviewed at regular intervals to determine the client's progress toward the stated goals and objectives of the plan and to determine whether the plan should be modified because of the client's present level of performance. These reviews should be based upon relevant progress notes in the client's clinical record and upon other related information, and a reasonable effort shall be made to obtain and utilize input from the client and his representatives.
  2. Any time a client is found by the person in charge of the client's habilitation no longer to be in need of services from the department, the client shall be discharged.
  3. At least 14 days before discharge of the client or transfer of the client pursuant to a modification of his program plan, notice of such action shall be given to the client, his representatives, and, if the client's program plan was ordered by a court, to the court which entered such order.

(Ga. L. 1919, p. 377, § 6; Ga. L. 1931, p. 7, § 41; Code 1933, § 35-306; Code 1933, § 88-2509, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-2508, enacted by Ga. L. 1978, p. 1826, § 1.)

ARTICLE 3 PLACEMENT, TRANSFER, AND TRANSPORTATION OF DEVELOPMENTALLY DISABLED PERSONS UNDERGOING HABILITATION, GENERALLY

37-4-60. Designation of facility to which client to be admitted; transfers of clients between private and state owned facilities; transfers of clients generally.

  1. The department may designate the state owned or state operated facility to which a client is admitted under this chapter. The department may instead designate a private facility, approved under Code Section 37-4-8, to which the client is to be admitted, if the department has obtained the prior agreement of the private facility and of the client or his representative.
  2. A client who is receiving habilitation at a state owned or state operated facility under this chapter may apply for a transfer at his own expense to a private facility approved under Code Section 37-4-8, if he is able to pay for habilitation at such private facility. If the private facility agrees to accept the client, the department shall transfer the client to that facility.
  3. If a private facility requests the department to take custody of a client who has been receiving habilitation therein under this chapter and if the client meets the criteria for admission under this chapter, then the department shall accept the client and designate the state owned or state operated facility to which the client shall be admitted.
  4. When the needs of the client or efficient utilization of any facility requires, a client may be transferred from one facility to another, and notice of and the reasons for such transfer shall be provided pursuant to subsection (c) of Code Section 37-4-44.

(Ga. L. 1956, p. 728, § 1; Code 1933, § 88-2510, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, §§ 88-2503.16, 88-2509.5, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 1985, p. 149, § 37.)

37-4-61. Transportation of clients generally.

  1. The governing authority of the county where the client is found or located shall arrange for initial emergency transport of a client to an emergency receiving facility. Except as otherwise authorized under subsection (b) of this Code section, the governing authority of the county of the client's residence shall arrange for all required transportation for developmental disability services subsequent to the initial transport. The type of vehicle employed shall be determined by the governing authority of the county, provided that, whenever possible, marked vehicles normally used for the transportation of criminals or those accused of crimes shall not be used for the transportation of clients. The court, upon the request of the community developmental disability program, shall order the sheriff to transport the client in such manner as the client's condition demands. At any time such community developmental disability program is satisfied that the client can be transported safely by family members or friends, such private transportation shall be encouraged and authorized. In nonemergency situations, no female client shall be transported at any time without another female in attendance who is not a client, unless such female client is accompanied by her husband, father, adult brother, or adult son.
  2. Notwithstanding the provisions of subsection (a) of this Code section, when a client is under the care of a facility, the facility shall have the discretion to determine the type of vehicle to safely transport the client and to arrange for such transportation without the need to obtain the prior approval of the governing authority of the county of the client's residence, the court, or the community developmental disability program. This subsection shall not prevent the facility from requesting and receiving transportation services from the governing authority of the county of the client's residence and shall not relieve the county sheriff of the duty of providing transportation. Persons providing transportation are authorized to transport a patient from a sending facility to a receiving facility but shall not release the client under any circumstances except into the custody of the receiving facility. The use of physical restraints to ensure the safe transport of the client shall comply with the requirements of Code Section 37-4-124. When transportation is not provided by the county sheriff, the expense of such transportation shall not be billed to the county governing authority but may be billed to the client and, unless agreed to in writing by the facility, shall not be billed to or considered an obligation of the facility.

(Code 1933, § 88-2503.17, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 1993, p. 1445, § 17.5; Ga. L. 2002, p. 1067, § 2; Ga. L. 2009, p. 453, § 3-6/HB 228.)

Cross references.

- Manner of marking of law enforcement and emergency vehicles, § 40-8-90 et seq.

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which amends this Code section, provides, in § 19.1, not codified by the General Assembly, that the amendment is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed the 1993 amendment to this Code section.

37-4-62. Transfer of clients to custody of federal agencies for services; retention of jurisdiction over clients by state courts; jurisdiction over developmentally disabled persons in federal hospitals and institutions located in state.

  1. If a client ordered to receive services from the department as a resident in a facility pursuant to this chapter is eligible for hospital care or treatment by the United States Department of Veterans Affairs or any other federal agency, the department, upon receipt of a certificate from such hospital showing that facilities are available and that the client is eligible for care, treatment, education, habilitation, or other specialized services therein, may transfer him to the custody of such agency. No such transfer shall occur if it would be harmful to or less effective in the client's habilitation or if it does not meet the requirements of the client's individualized program plan. When any such person is admitted under this Code section to any such facility within or outside the state, he shall be subject to the rules and regulations of such agency. The superintendent of any facility operated by such agency in which the individual becomes a resident shall, with respect to such individual, be vested with the same powers and duties as the superintendent of facilities within this state with respect to all matters under this chapter. Jurisdiction is retained in the appropriate courts of this state at any time to inquire into the condition of such an individual, to determine the necessity for continuance of his care in said facility, and to order his release; and every such person shall retain the rights delineated in Code Section 37-4-100. Every transfer of a client by the department pursuant to this Code section is so conditioned.
  2. An order of a court of competent jurisdiction of another state, territory, or possession, or of the District of Columbia authorizing hospitalization of a developmentally disabled person by any agency of the United States shall have the same force and effect as to the person while in this state as in the jurisdiction in which is situated the court entering the order; and the courts of the state, territory, possession, or district issuing such order shall be deemed to have retained jurisdiction of the person so hospitalized for the purpose of inquiring into his condition and determining the necessity for continuance of his hospitalization as is provided in subsection (a) of this Code section with respect to clients ordered to receive services from the department by the courts of this state. Consent is given to the application of the law of the state, territory, possession, or district in which is located the court issuing the order for hospitalization, with respect to the authority of the superintendent of any hospital or institution operated in this state by the United States Department of Veterans Affairs or any other federal agency, to retain custody, transfer, furlough, or discharge the person therein hospitalized.

(Code 1933, § 88-2509.4, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 1990, p. 45, § 1; Ga. L. 2009, p. 453, § 3-5/HB 228.)

37-4-63. Procedure for transfer of Georgia residents from out-of-state facilities to Georgia facilities.

Upon application to the department by a parent, spouse, next of kin, or guardian or by an agency of another state in which a person is hospitalized, the person shall be eligible to be admitted to a facility in the State of Georgia if found by the department to be a legal resident of Georgia. The department shall designate a facility to which such person is to be transported at no expense to the State of Georgia. The regional state hospital administrator of such facility and the next of kin or guardian of the person shall be notified of this action. The regional state hospital administrator shall be authorized to accept the person for a period not to exceed five days, unless prior to the expiration of such period proceedings have been initiated under Code Section 37-4-42 for an order to receive services from the department. After a thorough physical and mental examination has been made by the medical staff of such facility, the regional state hospital administrator of the facility or his designee is authorized to initiate a petition under this chapter, if this is necessary. Such application shall be forwarded to the court of the county in which that facility is located for action pursuant to this chapter in relation thereto.

(Code 1933, § 88-2509.8, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 2002, p. 1324, § 1-18.)

37-4-64. Procedure upon discovery that a client receiving court ordered services from a Georgia facility is not a resident.

If a client who is a resident in a facility is discovered not to be a resident of Georgia, the regional state hospital administrator of the facility in which the client is a resident shall seek his transfer to the custody of authorities of the state of his residence or to a publicly owned or publicly operated facility in that state. This Code section shall not apply to persons who are in residence at any facility operated by or under the control of the United States Department of Veterans Affairs or any other federal agency.

(Code 1933, § 88-2509.3, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 1990, p. 45, § 1; Ga. L. 2002, p. 1324, § 1-18.)

Cross references.

- Rights of citizens of other states while in Georgia generally, § 1-2-9.

ARTICLE 4 PAYMENT OF EXPENSES OF CARE AND TRANSPORTATION OF DEVELOPMENTALLY DISABLED PERSONS UNDERGOING HABILITATION, GENERALLY

37-4-80. Effect of inability to pay on right to habilitation services.

It is the policy of this state that no person shall be denied habilitation services for a developmental disability nor shall services be delayed at a facility of the state or a political subdivision of the state because of inability to pay for such habilitation services.

(Code 1933, § 88-2503.3, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 2009, p. 453, § 3-7/HB 228.)

37-4-81. Liability for expenses for transporting, examining, and caring for clients.

  1. The responsibility for paying the expenses for transporting, examining, and caring for clients, which expenses are not provided for under Chapter 9 of this title, relating to the payment of costs of care of persons admitted to state institutions under the department, shall be in the following order:
    1. The client or his estate;
    2. Persons legally obligated or legally responsible for the support of the client;
    3. The county of the client's legal residence;
    4. The department, when the General Assembly appropriates funds for such purpose.
  2. The department is authorized to issue rules and regulations governing the provisions of this Code section as it relates to the department.

(Code 1933, § 88-2508, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-2509.7, enacted by Ga. L. 1978, p. 1826, § 1.)

Cross references.

- Payment of costs of hospital care for the indigent, § 31-8-1 et seq.

Medical assistance generally, § 49-4-140 et seq.

37-4-82. Payment of expenses incurred in connection with hearings held under this chapter.

  1. Except as provided in this Code section, the expenses of any hearing held under this chapter by a court or by an administrative law judge, including attorneys' fees authorized by paragraph (1) of subsection (b) of this Code section and including expenses authorized by paragraph (3) of subsection (b) of this Code section, shall be paid by the county in which the client has his or her residence or, if the client is a transient, by the county in which the client was initially taken into the custody of the state. Payment by such county of the hearing expenses shall only be required if the person who actually presides over the hearing executes an affidavit or includes a statement in his or her final order relating to the hearing that the assets of the client, his or her estate, and any persons legally obligated to support the client appear to be insufficient to defray such expenses, based upon all relevant information available to the person who actually presides over the hearing. Such affidavit or statement may include the client's name, address, and age. The cost on appeal to the appropriate court shall be the same as provided for in other appeals from the probate and juvenile courts.
  2. Expenses of any hearing held under this chapter shall include:
    1. The fee to be paid to an attorney appointed under this chapter to represent a patient at such hearing. Such fee shall be as agreed between the attorney and the appointing court but shall not exceed an amount determined under the fee schedule followed by the county when computing the fees to be paid to an attorney who has been appointed to represent an indigent criminal defendant, plus actual expenses which an attorney may incur and which have been approved by the court holding the hearing. In exceptional circumstances, the attorney may apply to the superior court of the judicial circuit in which the hearing was held for an order granting reasonable fees in excess of the amounts specified in this paragraph;
    2. The fee to be paid to the court to defray the cost of clerical help and the cost of any additional office space and equipment required for the conduct of such hearing. In hearings conducted pursuant to Code Section 37-4-42 such fee shall be $20.00, and in all other hearings under this chapter such fee shall be $40.00, excluding attorneys' fees and expenses of the administrative law judge; and
    3. The fee to be paid to an administrative law judge appointed pursuant to subparagraph (A) of paragraph (5) of Code Section 37-4-2 to conduct a hearing. Such fee shall be as agreed between the administrative law judge and the appointing court, but shall not exceed an amount determined under the fee schedule followed by the county when computing the fees to be paid to an attorney who has been appointed to represent an indigent criminal defendant plus actual expenses which the administrative law judge may incur and which have been approved by the court holding the hearing. In exceptional circumstances, the administrative law judge may apply to the superior court of the judicial circuit in which the hearing was held for an order granting reasonable fees in excess of the amounts specified in this paragraph. The $40.00 court cost authorized by paragraph (2) of this subsection shall also be authorized to defray the cost of clerical help and additional office space and equipment required for the conduct of such hearings.

(Code 1933, § 88-2508, enacted by Ga. L. 1964, p. 499, § 1; Code 1933, § 88-2509.2, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 1979, p. 1042, § 3; Ga. L. 1985, p. 875, § 2; Ga. L. 2011, p. 337, § 7/HB 324.)

The 2011 amendment, effective July 1, 2011, in subsection (a), inserted "or her" in the first and second sentences, in the first sentence, substituted "an administrative law judge" for "a hearing examiner" near the beginning, and deleted "hearing officer" following "and including" near the middle; substituted "administrative law judge" for "hearing officer" in paragraph (b)(2) and throughout paragraph (b)(3); deleted ", which fee shall be" following "paid to the court" in the first sentence of paragraph (b)(2); and substituted "an administrative law judge" for "a hearing officer" near the beginning of the first sentence of paragraph (b)(3).

ARTICLE 5 RIGHTS AND PRIVILEGES OF DEVELOPMENTALLY DISABLED PERSONS UNDERGOING HABILITATION, THEIR REPRESENTATIVES, ETC., GENERALLY

Cross references.

- Tolling of statute of limitations due to mental retardation of person to whom cause of action accrues, § 9-3-90.

PART 1 G ENERAL PROVISIONS

37-4-100. Retention of rights and privileges by clients generally; right to due process.

Clients shall retain all rights and privileges granted other persons or citizens. Notwithstanding any other provision of law to the contrary, no person who is receiving or has received services for a developmental disability shall be deprived of any civil, political, personal, or property rights or be considered legally incompetent for any purpose without due process of law.

(Code 1933, § 88-2503.1, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 2009, p. 453, § 3-7/HB 228.)

Cross references.

- Rights of persons generally, T. 1, C. 2.

Capacity of mentally retarded persons to enter into contracts, § 13-3-24.

Sterilization of mentally incompetent persons, § 31-20-3.

Testamentary capacity, § 53-4-10 et seq.

RESEARCH REFERENCES

ALR.

- Criminal responsibility for physical measures undertaken in connection with treatment of mentally disordered patient, 99 A.L.R.3d 854.

37-4-101. Clients' right to legal counsel.

It shall be the responsibility of the department to see that every client is given the opportunity to secure legal counsel at his own expense to represent him in connection with private, personal, domestic, business, civil, criminal, and all other legal matters in which he may be involved during habilitation in a facility.

(Code 1933, § 88-2503.15, enacted by Ga. L. 1978, p. 1826, § 1.)

Cross references.

- Right to legal counsel generally, U.S. Const., amend. 6, and Ga. Const., 1983, Art. I, Sec. I, Para. XI.

RESEARCH REFERENCES

ALR.

- Accused's right to represent himself in state criminal proceedings - modern state cases, 98 A.L.R.3d 13.

37-4-102. Right of clients to communicate with persons outside facility and to receive visitors; treatment of client correspondence; establishment of regulations governing visitation and telephone usage.

  1. Each client in a facility shall have the right to communicate freely and privately with persons outside the facility and to receive visitors inside the facility.
  2. Except as otherwise provided in this Code section, each client shall be allowed to receive and send sealed, unopened mail; and no client's incoming or outgoing mail shall be opened, delayed, held, or censored by the facility.
  3. If there are reasonable grounds to believe that incoming mail contains items or substances which may be dangerous to the client or others, the superintendent or regional state hospital administrator may direct reasonable examination of such mail and, after examination, may regulate the disposition of such items or substances therein found. All writings must be presented to the client within 24 hours of inspection.
  4. The superintendent or regional state hospital administrator may apply to the court for a temporary order to restrict outgoing mail. If the court determines that probable cause exists that such mail is dangerous to the client or others, the court may order such mail temporarily restricted, provided that a full and fair hearing shall be held within five days after the issuance of such temporary order to determine whether or not an order of restriction for an extended time shall issue. In no event shall mail be restricted pursuant to such temporary order for more than five days after the date of the temporary order. A full and fair hearing shall be held after the issuance of the temporary order. If, at such hearing, the client's outgoing mail is determined to be dangerous to the patient or others, the court may order such mail restricted for an extended period not to exceed 30 days. Restrictions for extended periods may be renewed for additional periods not to exceed 30 days each, provided that no such restriction shall be renewed except upon a renewed finding, at another full and fair hearing for each such renewal, that such mail is dangerous to the client or others.
  5. If an injunction against the sending of mail by a client is issued by a court, the superintendent or regional state hospital administrator shall restrict outgoing mail as provided by the order of the court.
  6. No restrictions of either incoming or outgoing mail under subsection (c) or (d) of this Code section shall exceed a period of five days, notwithstanding the authority to restrict such mail for longer periods, provided that such restrictions may be continued as necessary for periods not to exceed five days each upon determination by the superintendent or regional state hospital administrator, prior to each continuation, that such mail continues to be dangerous to the client or others; provided, further, that, in the case of outgoing mail, such continuation periods in the aggregate shall not exceed the restriction period authorized in the court order.
  7. Correspondence of the client with his attorney shall not be restricted in any manner under this Code section. Correspondence of the client with public officials shall not be restricted in any manner under subsection (c) of this Code section.
  8. Each time a client's incoming mail is ordered examined by the superintendent or regional state hospital administrator and each time a client's outgoing mail is ordered examined by a temporary court order, written notice of such order and notice of a right to a full and fair hearing within five days after such temporary court order shall be served on the client and his representatives as provided in Code Section 37-4-107.
  9. The circumstances surrounding the examination of any mail under subsection (c), (d), (e), or (f) of this Code section shall be recorded on the client's clinical record.
  10. The superintendent or regional state hospital administrator is authorized to establish reasonable regulations governing visitors, visiting hours, and the use of telephones by clients.

(Code 1933, § 88-2503.7, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 2002, p. 1324, § 1-19.)

37-4-103. Clients' rights in regard to personal effects; liability of facility's employees and staff members for loss of or damage to clients' personal effects.

A client's rights to his personal effects shall be respected. The superintendent or regional state hospital administrator may take temporary custody of such effects when required for medical reasons. The facility shall make reasonable efforts to assure the safety of the client's belongings, but no employee or staff member shall be responsible for loss of or damage to such property where reasonable safety precautions have been taken.

(Code 1933, § 88-2503.8, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 2002, p. 1324, § 1-19.)

37-4-104. Clients' right to vote.

Each client in a facility who is eligible to vote shall be given his right to vote in primary, special, and general elections and in referendums. The superintendent or regional state hospital administrator of each facility shall permit and reasonably assist clients:

  1. To obtain voter registration forms, applications for absentee ballots, and absentee ballots;
  2. To comply with other requirements which are prerequisite for voting; and
  3. To vote by absentee ballot if necessary.

(Code 1933, § 88-2503.9, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 1995, p. 10, § 37; Ga. L. 2002, p. 1324, § 1-19.)

Cross references.

- Right to elective franchise generally, U.S. Const., amend. 15; Ga. Const., 1983, Art. II, Sec. I, Para. III; and § 1-2-6.

Absentee voting, § 21-2-380 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Right of the mentally retarded to vote generally.

- There is no statutory or constitutional provision which would permit removal of an elector from the electors' list on the ground that the elector is mentally retarded. In fact, under O.C.G.A. § 37-4-104, the contrary is true with respect to those mentally retarded electors receiving treatment. 1981 Op. Att'y Gen. No. 81-11.

37-4-105. Employment of clients outside facilities.

If a client wishes to be employed outside a facility and if such employment will aid in the client's habilitation, he shall be assisted in his efforts to secure suitable employment and all benefits flowing from such employment. The department shall encourage such employment of clients and shall promote the training of clients for gainful employment after discharge. All benefits of such employment shall accrue solely to the client.

(Code 1933, § 88-2503.10, enacted by Ga. L. 1978, p. 1826, § 1.)

37-4-106. Education of children who are clients.

The rights of any child receiving habilitation in a facility to an appropriate education at public expense shall not be abridged during hospitalization, and the special educational needs of each child shall be individually considered and respected. The department and the State Department of Education shall ensure that education is provided for all clients of school age who are in any state owned, state operated, or any other designated facility.

(Code 1933, § 88-2503.11, enacted by Ga. L. 1978, p. 1826, § 1.)

37-4-107. Appointment of client representatives and guardians ad litem; notification provisions; duration and scope of guardianship ad litem.

  1. At the time a client is admitted to any facility under this chapter, that facility shall make diligent efforts to secure the names and addresses of at least two representatives, which names and addresses shall be entered in the client's clinical record.
  2. The client may designate one representative; the second representative or, in the absence of designation of one representative by the client, both representatives shall be selected by the facility. If the facility is to select both representatives, it must make one selection from among the following persons in the order of listing: the client's legal guardian, spouse, adult child, parent, attorney, adult next of kin, or adult friend. The second representative shall also be selected from the above list but without regard to the order of listing, provided that the second representative shall not be the person who filed the petition seeking an order for the client to receive services from the department.
  3. If the facility is unable to secure at least two representatives after diligent search or if the department is the guardian of the client, that fact shall be entered in the client's clinical record and the facility shall apply to the court in the county of the client's residence for the appointment of a guardian ad litem, which guardian ad litem shall not be the department. On application of any person or on its own motion, the court may also appoint a guardian ad litem for a client for whom two representatives have been named whenever the appointment of a guardian ad litem is deemed necessary for protection of the client's rights. Such guardian ad litem shall act as representative of the client on whom notice is to be served under this chapter and shall have the powers granted to representatives by this chapter.
  4. At any time notice is required by this chapter to be given to the client's representatives, such notice shall be served on the representatives designated under this Code section. The client's guardian ad litem, if any, shall likewise be served. Unless otherwise provided, notice may be served in person or by first-class mail. When notice is served by mail, a record shall be made of the date of mailing and shall be placed in the client's clinical record. Service shall be completed upon mailing.
  5. At any time notice is required by this chapter to be given to the client, the date on which notice is given shall be entered on the client's clinical record. If the client is unable to comprehend a written notice, a reasonable effort shall be made to explain the notice to him.
  6. At the time a court enters an order pursuant to this chapter, such order and notice of the date of entry of the order shall be served on the client and his representatives as provided in subsection (d) of this Code section.
  7. Notice of a client's admission to a facility shall be given to his representatives in writing.
  8. In every instance in which a court shall appoint a guardian ad litem for any person pursuant to the terms of this chapter, such guardianship shall be for the limited purpose stated in the order of the court and shall expire automatically after 90 days or after a lesser time stated in the order. The responsibility of the guardian ad litem shall not extend beyond the specific purpose of the appointment.

(Code 1933, § 88-2503.18, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 2012, p. 775, § 37/HB 942.)

The 2012 amendment, effective May 1, 2012, part of an Act to revise, modernize, and correct the Code, revised punctuation in subsection (d).

Cross references.

- Guardians of incapacitated adults, T. 29, C. 5.

JUDICIAL DECISIONS

Cited in Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980).

37-4-108. Right of clients or representatives to petition for writ of habeas corpus and for judicial protection of rights and privileges granted by 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 client or his or her representatives may file a petition in the appropriate court alleging that the client is being unjustly denied a right or privilege granted by this chapter or that a procedure authorized by this chapter is being abused. An oral statement by a client or his or her representatives to any staff member or other service provider alleging that the client's rights or privileges under this chapter are being violated shall be immediately transmitted to the superintendent, the regional state hospital administrator, or the administrative head of the facility responsible for the client's treatment or the other person in charge of the client's habilitation plan, who shall assist the client in preparing his or her petition under this Code section. 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.

(Code 1933, §§ 88-2503.14, 88-2505, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 1980, p. 678, § 3; Ga. L. 2000, p. 1589, § 3; Ga. L. 2002, p. 1324, § 1-13.)

Cross references.

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

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

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.

RESEARCH REFERENCES

ALR.

- 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.

37-4-109. Establishment of patients and staff complaint procedure; final decisionmakers; right of administrative appeal; complaint procedures as alternative to legal remedies.

The department shall establish procedures whereby complaints of the client or complaints of the staff concerning admission, treatment, or habilitation can be speedily heard. Clients shall receive reasonable notice of such procedures. Final decisions shall be made by the superintendent, the regional state hospital administrator, or an advisory committee, whichever is appropriate, with the right of appeal to the commissioner or his or her designee. The board shall establish rules and regulations for the implementation of such procedures. However, the client shall not be required to utilize these procedures in lieu of other available legal remedies.

(Code 1933, § 88-2503.22, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 1987, p. 3, § 37; Ga. L. 2002, p. 1324, § 1-14; Ga. L. 2009, p. 453, § 3-15/HB 228.)

Cross references.

- Reports and investigations regarding mistreatment of hospital patients, residents of long-term care facilities, and others, §§ 31-7-9,31-8-50 et seq.,31-8-80 et seq.,31-8-100 et seq.

RESEARCH REFERENCES

ALR.

- Validity, construction, application, and effect of Civil Rights of Institutionalized Persons Act, 42 USC §§ 1997 - 1997j, 93 A.L.R. Fed. 706.

37-4-110. Appeal rights of clients, their representatives, or attorneys; payment of costs of appeal; right of client to subsequent appeal and to legal counsel on appeal.

The client, the client's representatives, or the client's attorney may appeal any order of the probate court or administrative law judge 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 client 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 client 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 client shall have a right to counsel or, if unable to afford counsel, shall have counsel appointed for the client by the court. The appeal rights provided to the client, the client's representatives, or the client'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 client, the client's representatives, or the client'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, § 88-2503.19, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 1986, p. 982, § 12; Ga. L. 1994, p. 1072, § 3; Ga. L. 1995, p. 10, § 37; Ga. L. 2009, p. 453, § 3-2/HB 228; Ga. L. 2011, p. 337, § 8/HB 324; Ga. L. 2016, p. 883, §§ 3-13, 3-14/HB 927.)

The 2011 amendment, effective July 1, 2011, substituted "administrative law judge" for "hearing officer" in the first sentence.

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

Jurisdiction on appeal.

- Appellate court has no jurisdiction to declare judicial review provisions to be unconstitutional. Robbins v. Lumpkin, 187 Ga. App. 489, 370 S.E.2d 635, cert. denied, 187 Ga. App. 908, 370 S.E.2d 635 (1988).

OPINIONS OF THE ATTORNEY GENERAL

Effect of 1986 amendment.

- 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. §§ 37-3-150,37-4-110, and37-7-150. 1986 Op. Att'y Gen. No. U86-18.

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

Cross references.

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

Disclosure of medical records, § 24-12-11 et seq.

37-4-120. Individual dignity of clients to be respected; use of criminal facilities and procedures.

The client's dignity as an individual shall be respected at all times and upon all occasions, including any occasion wherein the client is taken into custody, detained, or transported. Except where required under conditions of extreme urgency, those procedures, facilities, vehicles, and restraining devices normally utilized for criminals or those accused of crime shall not be used in connection with the developmentally disabled.

(Code 1933, § 88-2503.2, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 2009, p. 453, § 3-5/HB 228.)

RESEARCH REFERENCES

ALR.

- Criminal responsibility for physical measures undertaken in connection with treatment of mentally disordered patient, 99 A.L.R.3d 854.

37-4-121. Securing of least restrictive alternative placement; assisting client in securing placement in noninstitutional community facilities and programs.

It is the policy of the state that the least restrictive alternative placement be secured for every client at every stage of his habilitation. It shall be the duty of the facility to assist the client in securing placement in noninstitutional community facilities and programs.

(Code 1933, § 88-2503.21, enacted by Ga. L. 1978, p. 1826, § 1.)

37-4-122. Client's care and treatment rights.

  1. Each client in a facility and each person receiving services for a developmental disability shall receive habilitation that is suited to his needs and is the least restrictive appropriate habilitation. Such habilitation shall be administered skillfully, safely, and humanely with full respect for his dignity and personal integrity.
  2. In order to assure proper habilitation, it shall be the duty of the superintendent or regional state hospital administrator of a facility to ensure that each client receives such medical attention as is suitable to his condition.
  3. Each client shall have the right to participate in his habilitation. The department shall issue regulations to ensure that each client participates in his habilitation to the maximum extent possible. Unless the disclosure to the client is determined by the superintendent or regional state hospital administrator or person having charge of the client's habilitation to be detrimental to the physical or mental health of the client and unless a notation to that effect is made a part of the client's record, the client shall have the right to reasonable access to review his medical file, to be told his diagnosis, to be consulted on the habilitation recommendation, and to be fully informed concerning his medication, including its side effects and available treatment alternatives.
  4. If a client admitted to a facility under this chapter is able to secure the services of a private physician or psychologist, he shall be allowed to see his physician or psychologist at any reasonable time. The superintendent or regional state hospital administrator is authorized and directed to establish regulations designed to facilitate examination and treatment which a client may request from such private physician or psychologist.
  5. Every client admitted to a facility under this chapter shall be examined by the staff of the admitting facility as soon as possible after his admission.

(Code 1933, § 88-2503.4, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 1991, p. 1059, § 25; Ga. L. 2002, p. 1324, § 1-19; Ga. L. 2009, p. 453, § 3-7/HB 228.)

Law reviews.

- For note on 1991 amendment of this Code section, see 8 Ga. St. U.L. Rev. 121 (1992).

RESEARCH REFERENCES

ALR.

- Criminal responsibility for physical measures undertaken in connection with treatment of mentally disordered patient, 99 A.L.R.3d 854.

37-4-123. Recognition of clients' physical integrity; rights to refuse medication; obtaining consent to treatment and surgery; performance of emergency surgery, immunity of physician; direction of notice of actions taken under Code section.

  1. It shall be the policy of this state to recognize the personal physical integrity of all clients.
  2. It shall be the policy of this state to protect reasonably the right of every individual to refuse medication, except in cases where a physician determines that refusal would be unsafe to the client or others. If the client 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 client's consent. Further, in connection with any hearing under this chapter, the client has the right to appear and testify as free from any side effects or adverse effects of the medication as is reasonably possible.
  3. Any client objecting to the treatment being administered to him shall have a right to request a protective order pursuant to Code Section 37-4-108.
  4. 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.
  5. In cases of grave emergency where the medical staff of the facility in which a developmentally disabled person has been accepted for habilitation 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 client and this will be proper consent for such surgery or other intervention. Such consent will be valid, notwithstanding the type of admission of the client, and it shall also be valid whether or not the client has been adjudged incompetent. This Code section is intended to have application 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 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 actions in connection with said obtaining or relying upon such consent. Actual notice of any action taken pursuant to this Code section shall be given to the client and the spouse, next of kin, attorney, guardian, or representative of the client as soon as practically possible.

(Code 1933, § 88-2516, enacted by Ga. L. 1977, p. 886, § 1; Code 1933, § 88-2503.6, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 1995, p. 1302, § 13; Ga. L. 2009, p. 453, § 3-5/HB 228.)

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).

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.

37-4-124. Mistreatment, neglect, or abuse of clients prohibited; use of medication, physical restraints, or seclusion restricted; standards for use of physical restraints.

  1. Mistreatment, neglect, or abuse in any form of any client is prohibited. Medication in quantities that interfere with the client's habilitation program is prohibited. All medication, seclusion, or physical restraints are to be used solely for the purposes of providing effective habilitation and protecting the safety of the client and other persons. Restraints shall not be employed as punishment, for the convenience of the staff, or as a substitute for programs.
  2. Physical restraints shall not be applied unless:
    1. A person who is involved in the care and treatment of the client as a physician, psychologist, or clinical nurse specialist in psychiatric/mental health determines such restraints to be necessary in order to prevent a client from seriously injuring himself or herself or others; or
    2. A professional staff member determines that there exists an emergency requiring the use of such restraints. For purposes of this Code section, an emergency exists when the client presents an immediate danger of injury to himself or herself or others. The authorization of physical restraints by a professional staff member shall be immediately reported to a physician and any psychologist involved in the care and treatment of the client. A physician's, psychologist's, or clinical nurse specialist's in psychiatric/mental health order for restraints shall expire after 12 hours, at which time a new determination of the need for restraints must be made. The physician, psychologist involved in the care and treatment of the client, or clinical nurse specialist in psychiatric/mental health involved in the care and treatment of the client must issue a written order for each use of restraints. The facility shall have written policies and procedures which govern the use of such restraints and which clearly delineate, in descending order, the personnel who can authorize the use of restraints in emergency situations.
  3. Every use of physical restraints shall be made a part of the resident's clinical record. The following shall be documented in the record:
    1. The reasons for applying the restraint;
    2. The signature of the person authorizing the restraint;
    3. The time of application and removal of the restraint; and
    4. A record of checks at least every 30 minutes by a staff member trained in use of restraints and the signature of the person making such checks. A copy of each use of restraint shall be forwarded to the superintendent or regional state hospital administrator for review.
  4. For the purposes of this Code section, those devices which restrain movement but are applied for protection from accidental injury or are required for the medical treatment of the client's physical condition or for supportive or corrective needs of the client shall not be considered physical restraints. However, devices used in such situations must be authorized and applied in compliance with the facility's policies and procedures. The use of any such devices shall be recorded in writing as a part of the client's individualized program plan.

(Code 1933, § 88-2503.5, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 1979, p. 734, § 2; Ga. L. 1982, p. 3, § 37; Ga. L. 1997, p. 911, § 5; Ga. L. 2002, p. 1324, § 1-19.)

Cross references.

- Abuse and mistreatment of hospital patients, residents of long-term care facilities, and other institutions, §§ 31-7-9,31-8-50 et seq.,31-8-80 et seq.,31-8-100 et seq.

RESEARCH REFERENCES

ALR.

- Hospital's liability for injuries sustained by patient as a result of restraints imposed on movement, 25 A.L.R.3d 1450.

Criminal responsibility for physical measures undertaken in connection with treatment of mentally disordered patient, 99 A.L.R.3d 854.

37-4-125. Treatment of clinical records; scope of privileged communications; liability for disclosure.

  1. A clinical record for each client shall be maintained. Authorized release of the record shall include but not be limited to examination of the original record, copies of all or any portion of the record, or disclosure of information from the record, except for matters privileged under the laws of this state.Such examination shall be conducted on hospital premises at reasonable times determined by the facility.The clinical record shall not be a public record and no part of it shall be released except:
    1. When the superintendent or regional state hospital administrator of the facility where the record is kept deems it essential for continued habilitation, a copy of the record or parts thereof may be released to persons in charge of a client's habilitation when and as necessary for the habilitation of the client;
    2. A copy of the record may be released to any person or entity designated in writing by the client or, if appropriate, the parent of a minor, the legal guardian of an adult or minor, or a person to whom legal custody of a minor client has been given by order of a court;

      (2.1) A copy of the record of a deceased client or deceased former client may be released to or in response to a valid subpoena of a coroner or medical examiner under Chapter 16 of Title 45, except for matters privileged under the laws of this state;

    3. When the habilitation plan of the client involves transfer of that client to another facility or involves the receipt of community services by the client, a copy of the record may be released to that facility or to that entity rendering such community services;
    4. A copy of the record or any part thereof may be disclosed to any employee or staff member of the facility when it is necessary for the proper habilitation of the client;
    5. A copy of the record shall be released to the client's attorney if the attorney so requests and the client, or the client's legal guardian, consents to the release;
    6. In a bona fide medical emergency, as determined by a physician treating the client, the superintendent or regional state hospital administrator may release a copy of the record to the treating physician;
    7. At the request of the client, the client's legal guardian, or the client's attorney, the record shall be produced by the entity having custody thereof at any hearing held under this chapter;
    8. A copy of the record shall be produced in response to a valid subpoena or order of any court of competent jurisdiction, except for matters privileged under the laws of this state;

      (8.1) A copy of the record may be released to the legal representative of a deceased client's estate, except for matters privileged under the laws of this state;

    9. Notwithstanding any other provision of law to the contrary, a law enforcement officer in the course of a criminal investigation may be informed as to whether a person is or has been a client in a state facility, as well as the client's current address, if known;
    10. A copy of the client's clinical record may be released under the conditions and for the uses and purposes set forth in Code Section 31-7-6; and
    11. Notwithstanding any other provision of law to the contrary, a law enforcement officer in the course of investigating the commission of a crime on the premises of a facility covered by this chapter or against facility personnel or a threat to commit such a crime may be informed as to the circumstances of the incident, including whether the individual allegedly committing or threatening to commit a crime is or has been a client in the facility, and the name, address, and last known whereabouts of any alleged client perpetrator.
  2. In connection with any hearing held under this chapter, any physician, including any psychiatrist, or any psychologist who is treating or who has treated the client shall be authorized to give evidence as to any matter concerning the client, including evidence as to communications otherwise privileged under Code Section 24-5-501, 24-12-1, or 43-39-16.
  3. Any disclosure authorized by this Code section or any unauthorized disclosure of confidential or privileged client information or communications shall not in any way abridge or destroy the confidential or privileged character thereof, except for the purpose for which such authorized disclosure is made. Any person making a disclosure authorized by subsection (a) of this Code section shall not be liable to the client or any other person, notwithstanding any contrary provision of Code Section 24-5-501, 24-12-1, or 43-39-16.

(Code 1933, § 88-2503.12, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 1979, p. 734, § 3; Ga. L. 1991, p. 1059, § 26; Ga. L. 1994, p. 1072, § 4; Ga. L. 2002, p. 1324, § 1-19; Ga. L. 2011, p. 99, § 54/HB 24.)

The 2011 amendment, effective January 1, 2013, substituted "Code Section 24-5-501, 24-12-1," for "Code Section 24-9-21, 24-9-40," near the end of subsections (b) and (c). See editor's note for applicability.

Editor's notes.

- Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1994, a semicolon was substituted for a period at the end of paragraph (a)(8.1).

Cross references.

- Release of medical information generally, § 24-9-40 et seq.

Law reviews.

- For article, "Evidence," see 27 Ga. St. U.L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011). For note on 1991 amendment of this Code section, see 8 Ga. St. U.L. Rev. 121 (1992).

37-4-126. Right of client to examine his records and to request correction of inaccuracies; promulgation of rules and regulations; judicial supervision of files and records relating to proceedings under this chapter.

  1. Except as provided in subsection (c) of Code Section 37-4-122, every client shall have the right to examine all medical records kept in the client's name by the department or the facility where the client was receiving services.
  2. Every client shall have the right to request that the department or facility correct any inaccurate information found in his medical record.
  3. The board shall promulgate reasonable rules and regulations to implement subsections (a) and (b) of this Code section. Nothing contained in this Code section shall be construed to require the deletion of information by the department nor constrain the department from destroying client records after a reasonable passage of time.
  4. Notwithstanding paragraphs (7) and (8) of Code Section 15-9-37, all files and records of a court in a proceeding under this chapter shall remain sealed and shall be open to inspection only upon order of the court, issued after notice to the client and subject to the provisions of Code Section 37-4-125 pertaining to the medical portions of the record, provided that the court may refer to such files and records in any subsequent proceeding under this chapter concerning the same client, on condition that the files and records of such subsequent proceeding will then be sealed in accordance with this subsection. The court may permit authorized representatives of recognized organizations compiling statistics for proper purposes to inspect and make abstracts from official records but without personal identifying information and under whatever conditions upon their use and distribution that the court may deem proper, and the court may punish by contempt any violations of those conditions. Otherwise, inspection of the sealed files and records may be permitted only by an order of the court upon petition by the person who is the subject of the records and only by those persons named in the order.

(Code 1933, § 88-2503.13, enacted by Ga. L. 1978, p. 1826, § 1.)

Cross references.

- Release of medical information generally, § 24-12-1 et seq.

37-4-127. Right of client's attorney to interview persons in charge of client's habilitation in a facility; establishment of regulations as to release of information to client's attorney.

The client's attorney shall have the right, at reasonable times, to interview the persons in charge of the client's habilitation in any facility and to have the client's records interpreted by them. The superintendent or regional state hospital administrator is authorized and directed to establish reasonable regulations to make available to the client's attorney all such information in the possession of the facility as the attorney requires in order to advise and represent the client concerning his habilitation.

(Code 1933, § 88-2503.20, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 2002, p. 1324, § 1-19.)

Cross references.

- Release of medical information generally, § 24-12-1 et seq.

CHAPTER 5 COMMUNITY SERVICES FOR THE DEVELOPMENTALLY DISABLED

Cross references.

- Child, family, or group-care facility operators prohibited from employing or allowing to reside or be domiciled persons with certain past criminal violations, § 16-12-1.1

Day-care centers for the developmentally disabled, § 37-6-1 et seq.

Administrative Rules and Regulations.

- Rules and regulations on "Mental Health and Mental Retardation and Substance Abuse," Official Compilation of the Rules and Regulations of the State of Georgia, Department of Human Resources, Chapters 290-4-1 and 290-4-3 et seq.

RESEARCH REFERENCES

ALR.

- Validity, construction, and effect of statute requiring consultation with, or approval of, local governmental unit prior to locating group home, halfway house, or similar community residence for the mentally ill, 51 A.L.R.4th 1096.

37-5-1. Short title.

This chapter shall be known and may be cited as the "Community Services Act for the Developmentally Disabled."

(Ga. L. 1972, p. 700, § 1; Ga. L. 2009, p. 453, § 3-5/HB 228.)

37-5-2. Declaration of policy.

Since the State of Georgia accepts a responsibility for its developmentally disabled citizens and an obligation to them which it must discharge, facilities, programs, and services shall be made available to meet the needs of each developmentally disabled person during his entire lifetime. The primary purpose of this chapter shall be to provide community based alternatives to total institutional care so that developmentally disabled individuals can continue to live in their home communities.

(Ga. L. 1972, p. 700, § 2; Ga. L. 2009, p. 453, § 3-5/HB 228; Ga. L. 2010, p. 878, § 37/HB 1387.)

The 2010 amendment, effective June 3, 2010, part of an Act to revise, modernize, and correct the Code, revised punctuation in the last sentence.

JUDICIAL DECISIONS

Building and operation of home subject to zoning regulations.

- Nonprofit corporation attempting to build and operate a community home for mentally retarded adults consistent with O.C.G.A. § 37-5-2 is not immune from local zoning regulations. Macon Ass'n for Retarded Citizens v. Macon-Bibb County Planning & Zoning Comm'n, 252 Ga. 484, 314 S.E.2d 218, appeal dismissed, 469 U.S. 802, 105 S. Ct. 57, 83 L. Ed. 2d 8 (1984).

OPINIONS OF THE ATTORNEY GENERAL

When aid to parent for child care cannot be ordered.

- If the state or county is unable to help a parent obtain help for a child and if the parent cannot afford what private care is available, the juvenile courts of this state cannot order the state or county to help the parent bear the cost of caring for the child. 1967 Op. Att'y Gen. No. 67-88.

37-5-3. Community services defined.

As used in this chapter, the term "community services" means a coordinated, consumer and family centered, consumer and family directed, and comprehensive system of community services, individualized supports, and other forms of assistance that enable individuals with developmental disabilities to exercise self-determination, be independent, be productive, and be integrated and included in all facets of community life. Such services shall include those deemed reasonably necessary by the department to provide for education, training, rehabilitation, and care of individuals with developmental disabilities and shall include but not be limited to: diagnostic and evaluation services; day-care and training services; work-activity services; support coordination, day support, and personal support services; supportive employment services; community residential services such as group family-care homes, community living arrangements, and host homes; transportation services incidental to educational, training, and rehabilitation services; technology and durable equipment support and services; social services; medical services; and specified home services.

(Code 1933, § 88-2502, enacted by Ga. L. 1964, p. 499, § 1; Ga. L. 1972, p. 700, § 3; Ga. L. 1978, p. 1826, § 1; Ga. L. 2009, p. 453, § 3-16/HB 228.)

JUDICIAL DECISIONS

Cited in Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980); Benham v. Edwards, 501 F. Supp. 1050 (N.D. Ga. 1980).

RESEARCH REFERENCES

C.J.S.

- 56 C.J.S., Mental Health, §§ 1, 3.

37-5-4. Applicability of chapter; eligibility for community services.

  1. This chapter shall apply to all county boards of health in Georgia and to the Department of Behavioral Health and Developmental Disabilities.
  2. Developmentally disabled individuals who are not eligible to receive community services from other public agencies and developmentally disabled individuals who are not in fact receiving such services shall be entitled to receive all services afforded under this chapter.

(Ga. L. 1972, p. 700, § 4; Ga. L. 2009, p. 453, §§ 3-2, 3-5/HB 228.)

37-5-5. Duty of county board of health to provide community services; district health department to advise families or guardians of developmentally disabled individuals.

  1. County boards of health shall, subject to limitations herein specified, provide community services and shall employ such personnel as may be needed to serve developmentally disabled individuals in their respective counties.
  2. The district health department shall be the source of referral and information for the families or guardians of developmentally disabled individuals providing lifetime advice and guidance and referral to appropriate services.

(Ga. L. 1972, p. 700, § 5; Ga. L. 2009, p. 453, § 3-5/HB 228.)

JUDICIAL DECISIONS

Cited in Macon Ass'n for Retarded Citizens v. Macon-Bibb County Planning & Zoning Comm'n, 252 Ga. 484, 314 S.E.2d 218, appeal dismissed, 469 U.S. 802, 105 S. Ct. 57, 83 L. Ed. 2d 8 (1984).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Welfare Laws, §§ 45, 46, 52.

C.J.S.

- 57 C.J.S., Mental Health, § 228 et seq.

37-5-6. County or health district plan for community services; review and approval of plan by the department.

  1. Each county board of health shall, on or before July 1, 1973, submit to the department a plan for providing comprehensive community services to developmentally disabled individuals residing in the county, provided that any group of counties comprising a health district may join and submit one plan covering the entire health district. The plan shall state:
    1. An estimate of the number of developmentally disabled individuals residing in the county who require services afforded by this chapter;
    2. A description of the specific services required by developmentally disabled individuals residing in the county;
    3. A description of physical facilities available for use in providing the required community services;
    4. A description of physical facilities, if any, which must be constructed to provide the necessary services;
    5. A proposed staff roster of professional and nonprofessional employees who must be hired to provide necessary services; and
    6. A detailed budget showing all costs of providing the necessary services for fiscal years 1977, 1978, and 1979 and a summary budget for each fiscal year from 1980 through 1985 inclusive.
  2. The department shall provide assistance to county boards of health in preparing the plan required by subsection (a) of this Code section.
  3. The department shall review the plan submitted by each county or district as required by subsection (a) of this Code section and shall suggest such changes as may be necessary to achieve the objectives of this chapter.
  4. On or before July 1, 1975, the department shall publish in print or electronically an approved plan for each county or health district which shall address each point set out in subsection (a) of this Code section.

(Ga. L. 1972, p. 700, § 6; Ga. L. 2009, p. 453, § 3-5/HB 228; Ga. L. 2010, p. 838, § 10/SB 388.)

The 2010 amendment, effective June 3, 2010, inserted "in print or electronically" in subsection (d).

37-5-7. Duty of department to provide consulting and financial assistance to county boards of health; failure of county boards of health to provide community services.

  1. The Department of Behavioral Health and Developmental Disabilities shall provide assistance to county boards of health in developing a full range of community services for the developmentally disabled through consultation and provision of standards. The department shall assist county boards of health in obtaining federal funds where such resources are available and shall finance 100 percent of all operating costs not borne by federal funds.
  2. Should a county board of health fail to take the necessary action to provide approved community services for developmentally disabled individuals, the department shall be empowered to establish and operate such services in lieu of operation by such county board of health.

(Ga. L. 1972, p. 700, § 7; Ga. L. 2009, p. 453, §§ 3-2, 3-5/HB 228.)

OPINIONS OF THE ATTORNEY GENERAL

Involvement of Department.

- Department of Human Resources may become involved if a county board of health fails to provide necessary services to mentally retarded individuals. 1973 Op. Att'y Gen. No. 73-164.

37-5-8. Duty of department to establish standards for community services, inspect programs, issue statements of approval; procedure upon discovery of deficiencies; reinspection.

The department shall establish standards for community services, shall regularly inspect programs under operation, and shall issue statements of approval to programs which meet state standards. Where deficiencies are found, county boards of health shall be notified and a reasonable time to correct such deficiencies shall be allowed. Reinspections shall be made as necessary to assure state approval of services.

(Ga. L. 1972, p. 700, § 8.)

37-5-9. Fees for community services.

The department and its contractors are authorized to charge fees for community services they provide under this chapter based upon ability to pay, in accordance with guidelines established by the department. When such services are provided by county boards of health, Code Section 31-3-4 authorizes the establishment of fees for the services. No person shall be denied services on the basis of inability to pay.

(Ga. L. 1972, p. 700, § 9; Ga. L. 1989, p. 459, § 1.)

37-5-10. Timetable for implementation of this chapter.

Repealed by Ga. L. 2015, p. 385, § 4-7/HB 252, effective July 1, 2015.

Editor's notes.

- This Code section was based on Ga. L. 1972, p. 700, § 10; Ga. L. 2009, p. 453, § 3-17/HB 228.

Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.' "

CHAPTER 6 DAY-CARE CENTERS FOR THE DEVELOPMENTALLY DISABLED

Cross references.

- Child, family, or group-care facility operators prohibited from employing or allowing to reside or be domiciled persons with certain past criminal violations, § 16-12-1.1.

RESEARCH REFERENCES

ALR.

- Validity, construction, and effect of statute requiring consultation with, or approval of, local governmental unit prior to locating group home, halfway house, or similar community residence for the mentally ill, 51 A.L.R.4th 1096.

37-6-1. Day-care center defined.

As used in this chapter, the term "day-care center" means any facility that is operated and maintained for and is qualified to furnish care and training to individuals with developmental disabilities on less than a 24 hour basis.

(Ga. L. 1963, p. 259, § 1; Ga. L. 1966, p. 374, § 1; Ga. L. 2009, p. 453, § 3-18/HB 228.)

37-6-2. Participation by department in financing of day-care centers for developmentally disabled children.

The department is authorized, directed, and empowered to participate in the financing of public, nonprofit day-care centers for developmentally disabled children upon approval of such day-care centers under Code Section 37-6-6.

(Ga. L. 1966, p. 374, § 2; Ga. L. 2009, p. 453, § 3-5/HB 228.)

37-6-3. Participation by department in financing of day-care centers generally.

The department is authorized, directed, and empowered to participate in the financing of day-care centers for developmentally disabled individuals that may be approved by the department in such municipalities and counties of this state. In carrying out the authority and power set forth in this Code section the department is authorized, directed, and empowered to expend funds in assisting such day-care centers for developmentally disabled individuals in the operation of such centers.

(Ga. L. 1963, p. 259, § 3; Ga. L. 1966, p. 374, § 6; Ga. L. 2009, p. 453, § 3-5/HB 228.)

37-6-4. Grants-in-aid to county boards of health for purchase of services from private day-care centers.

The department is authorized and empowered to make grants-in-aid to county boards of health to purchase care and training for developmentally disabled individuals from privately operated, nonprofit day-care centers provided these developmentally disabled individuals have been certified as eligible for financial assistance.

(Ga. L. 1966, p. 374, § 3; Ga. L. 1993, p. 1445, § 17.6; Ga. L. 2009, p. 453, § 3-5/HB 228.)

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which amends this Code section, provides, in § 19.1, not codified by the General Assembly, that the amendment is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed the 1993 amendment to this Code section.

37-6-5. Statements of operating costs.

The department may require any day-care center that receives state funds under Code Sections 37-6-2 and 37-6-4 to submit to the department at appropriate times certified statements of operating costs.

(Ga. L. 1966, p. 374, §§ 4, 8.)

37-6-6. Inspection and approval of day-care centers.

The department is authorized, directed, and empowered (1) to inspect day-care centers for the developmentally disabled in order to determine compliance with departmental standards for such centers and (2) to approve those day-care centers which meet minimum departmental standards for matching funds under Code Section 37-6-2 or grants-in-aid under Code Section 37-6-4. Inspection shall include both those centers now in operation and those which will begin operation in the future. Reinspections may be made at any time and approval may be withdrawn whenever circumstances indicate that a day-care center no longer meets departmental standards. If approval is withdrawn, it cannot be reinstated until the deficiencies have been corrected and a satisfactory reinspection has been made. After a day-care center has been approved by the department and a certificate of approval has been issued, the center is not subject to examination, approval, or licensing by any other department, agency, or division of the state.

(Ga. L. 1966, p. 374, §§ 5, 9; Ga. L. 2009, p. 453, § 3-5/HB 228.)

37-6-7. Departmental standards for day-care centers.

  1. The department is authorized, directed, and empowered:
    1. To classify day-care centers; and
    2. To prescribe and set out the kind and quality of buildings, equipment, facilities, and services which day-care centers shall maintain in order to give proper care and training to developmentally disabled individuals.
  2. The board shall have the power to adopt and promulgate reasonable rules and regulations for the establishment of standards which in its judgment are necessary to protect the health and lives of developmentally disabled individuals.

(Ga. L. 1963, p. 259, § 8; Ga. L. 1966, p. 374, § 10; Ga. L. 2009, p. 453, § 3-5/HB 228.)

37-6-8. Expenditure of funds appropriated for this chapter.

The department is authorized, directed, and empowered to expend funds appropriated to the department for the purposes of administering this chapter.

(Ga. L. 1963, p. 259, § 7; Ga. L. 1966, p. 374, § 11.)

CHAPTER 7 HOSPITALIZATION AND TREATMENT OF ALCOHOLICS, DRUG DEPENDENT INDIVIDUALS, AND DRUG ABUSERS

Article 1 General Provisions.
Article 2 Hospitalization and Treatment of Voluntary Patients.
Article 3 Examination, Hospitalization, and
Treatment of Involuntary Patients.
Part 1 Emergency Receiving Facilities
for Examination of Persons Apprehended Pursuant to
Physician's Certi- ficate or Court
Order. Part 2
Evaluating Facilities for Examin- ation of Persons Ordered
to Undergo Evaluation for
Mental Illness. Part 3
Determination of Need for Treat- ment, Admission to Treat-
ment Facilities. Part 4

O UTPATIENT TREATMENT

Article 4 Placement, Transfer, and Trans-
portation of Patients Generally.
Article 5 Payment of Expenses of Patient Care
and Transportation Generally.
Article 6 Rights and Privileges of Patients,
Their Representatives, and Others Generally.
Part 1 GENERAL PROVISIONS.
Part 2 Rights and Privileges as to Manner
of Care and Treatment and as to Maintenance and Release
of Clinical Records. Cross references. - Duties of Department of Human Resources relating to classification and evaluation of drug abuse treatment and education programs, T. 26, C. 5.

Protective services for abused, neglected, or exploited disabled adults, T. 30, C. 5.

Reporting of abuse or exploitation of residents of long-term care facilities, § 31-8-80 et seq.

Rights of persons residing in long-term care facilities generally, § 31-8-100 et seq.

Administrative Rules and Regulations.

- Rules regulating "Drug Abuse Treatment and Education Programs," Official Compilation of the Rules and Regulations of the State of Georgia, Department of Human Resources, Chapter 290-4-2.

Adult crisis stabilization units, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Behavioral Health and Developmental Disabilities, Chapter 82-3-1.

Children and adolescent crisis stabilization units, Official Compilation of the Rules and Regulations of the State or Georgia, Department of Behavioral Health and Disabilities, Chapter 82-4-1.

Law reviews.

- For article, "The Olmstead Decision: The Road to Dignity and Freedom," see 26 Ga. St. U.L. Rev. 651 (2010). For article, "Olmstead's Promise and Cohousing's Potential," see 26 Ga. St. U.L. Rev. 663 (2010). For article, "From the Inside Out: Personal Perspectives of Six Georgians on Their Institutional Experiences," see 26 Ga. St. U.L. Rev. 741 (2010). For article, "The Constitutional Right to Community Services," see 26 Ga. St. U.L. Rev. 763 (2010). For article, "Reconsidering Makin v. Hawaii: The Right of Medicaid Beneficiaries to Home-Based Services as an Alternative to Institutionalization," see 26 Ga. St. U.L. Rev. 803 (2010). For article, "The Potential and Risks of Relying on Title II's Integration Mandate to Close Segregated Institutions," see 26 Ga. St. U.L. Rev. 855 (2010). For article, "Beyond Residential Segregation: The Application of Olmstead to Segregated Employment Settings," see 26 Ga. St. U.L. Rev. 875 (2010). For article, "From Almshouses to Nursing Homes and Community Care: Lessons from Medicaid's History," see 26 Ga. St. U.L. Rev. 937 (2010). For note on 1991 amendments to this chapter, see 8 Ga. St. U.L. Rev. 121 (1992). For note, "Deinstitutionalization: Georgia's Progress in Developing and Implementing an 'Effectively Working Plan' as Required by Olmstead v. L.C. ex rel," see 25 Ga. St. U.L. Rev. 699 (2009).

JUDICIAL DECISIONS

Purpose of procedural safeguards contained in chapter.

- Procedural safeguards contained in O.C.G.A. Ch. 7, T. 37 are obviously for purpose of ensuring that individual rights are not eroded in name of medical expediency. Kendrick v. Metropolitan Psychiatric Ctr., Inc., 158 Ga. App. 839, 282 S.E.2d 361 (1981).

Procedural safeguards of chapter must be strictly complied with.

- O.C.G.A. Ch. 7, T. 37 involves extremely sensitive area of deprivation of liberty and requires strict compliance with all of its procedures. Kendrick v. Metropolitan Psychiatric Ctr., Inc., 158 Ga. App. 839, 282 S.E.2d 361 (1981).

Reason for requiring rigid adherence to designated procedures.

- Rigid adherence to designated procedures is especially important in light of relative ease with which one may be taken from first interview with a physician to involuntary confinement and treatment. Kendrick v. Metropolitan Psychiatric Ctr., Inc., 158 Ga. App. 839, 282 S.E.2d 361 (1981).

Provisions for contesting confinement.

- O.C.G.A. Ch. 7, T. 37 amply provides for the invocation of legal measures to contest the validity of confinement. Watkins v. Roche, 529 F. Supp. 327 (S.D. Ga. 1981).

Rationale for limited liability of private physicians.

- Throughout the various provisions of O.C.G.A. Ch. 7, T. 37, the judgment of the private physician is sought, but is not required. Rather, it is the judgment of the state's physicians that is determinative of the question of further examination or treatment. To open physicians to federal suit by decreeing that the physicians act for the state in making purely medical decisions would effectively chill the use, and accompanying benefit, of a private physician's judgment in an emergency situation simply because the physician may not be willing to give it for fear of being exposed to a lawsuit. The disadvantage in this is that the statutory alternatives do not provide the immediacy of action of a physician's certificate. Watkins v. Roche, 529 F. Supp. 327 (S.D. Ga. 1981).

Treatment time limits.

- O.C.G.A. Ch. 7, T. 37 prescribes maximum time limits for steps leading to treatment, but no minimums. If two physicians agree that an individual needs involuntary treatment as contemplated by that chapter, the elapsed time between the patient's arrival at the first doctor's office or at the hospital and onset of involuntary psychiatric treatment could be no more than the time occupied by two interviews, which is the outer limits of due process and cannot be reduced by procedural safeguards any further. Kendrick v. Metropolitan Psychiatric Ctr., Inc., 158 Ga. App. 839, 282 S.E.2d 361 (1981).

ARTICLE 1 GENERAL PROVISIONS

37-7-1. Definitions.

As used in this chapter, the term:

  1. "Alcoholic" means a person who habitually lacks self-control as to the use of alcoholic beverages or who uses alcoholic beverages to the extent that his health is substantially impaired or endangered or his social or economic function is substantially disrupted.
  2. "Alcoholic beverages" means alcoholic spirits, liquors, wines, beers, and every liquid or fluid, patented or not, containing alcoholic spirits, wine, or beer or any other liquid or fluid containing alcohol in any form and producing intoxication in any form or to any degree.
  3. "Alcoholic, drug dependent individual, or drug abuser requiring involuntary treatment" means a person who is an inpatient or an outpatient.

    (3.1) "Available outpatient treatment" means outpatient treatment, either public or private, available in the patient's community, including but not limited to supervision and support of the patient by family, friends, or other responsible persons in that community. Outpatient treatment at state expense shall be available only within the limits of state funds specifically appropriated therefor.

  4. "Chief medical officer" means the physician with overall responsibility for patient treatment at any facility receiving patients under this chapter or a physician appointed in writing as the designee of such chief medical officer.
  5. "Clinical record" means a written record pertaining to an individual patient and shall include all medical records, progress notes, charts, admission and discharge data, and all other information which is recorded by a facility which pertains to the patient's hospitalization and treatment. Such other information as may be required by rules and regulations of the board shall also be included.
  6. "Community mental health center" means an organized program for the care and treatment of alcoholics, drug dependent individuals, or drug abusers operated by a community service board or other appropriate public provider.
  7. "Court" means:
    1. In the case of an individual who is 17 years of age or older, the probate court for the county of residence of the patient or the county in which such patient is found. Notwithstanding Code Section 15-9-13, in any case in which the judge of the probate court is unable to hear a case brought under this chapter within the time required for such hearing or is unavailable to issue the order specified in subsection (b) of Code Section 37-7-41, the judge shall appoint a person to serve and exercise all the jurisdiction of the probate court in such case. Any person so appointed shall be a member of the State Bar of Georgia and be otherwise qualified for his duties by training and experience. Such appointment may be made on a case-by-case basis or by making a standing appointment of one or more persons. Any person receiving such a standing appointment shall serve at the pleasure of the judge making the appointment or his successor in office to hear such cases if and when necessary. The compensation of a person so appointed shall be as agreed upon by the judge who makes the appointment and the person appointed and as approved by the governing authority of the county for which such person is appointed and shall be paid from the county funds of the county. All fees collected for the services of such appointed person shall be paid into the general funds of the county served; or
    2. In the case of an individual who is under the age of 17 years, the juvenile court of the county of residence of the patient or the county in which the patient is found.
  8. "Drug dependent individual" or "drug abuser" means a person who habitually lacks self-control as to the use of opium, heroin, morphine, or any derivative or synthetic drug of that group, barbiturates, other sedatives, tranquilizers, amphetamines, lysergic acid diethylamide or other hallucinogens, or any drug, dangerous drug, narcotic drug, marijuana, or controlled substance, as defined in Article 2 or Article 3 of Chapter 13 of Title 16 or Chapter 3 of Title 26; or a person who uses such drugs to the extent that his health is substantially impaired or endangered or his social or economic function is substantially disrupted; provided, however, that no person shall be deemed a drug dependent individual or abuser solely by virtue of his taking, according to directions, any such drugs pursuant to a lawful prescription issued by a physician in the course of professional treatment for legitimate medical purposes.
  9. "Emergency receiving facility" means a facility designated by the department to receive patients under emergency conditions as provided in Part 1 of Article 3 of this chapter.
  10. "Evaluating facility" means a facility designated by the department to receive patients for evaluation as provided in Part 2 of Article 3 of this chapter.
  11. "Facility" means any state owned or state operated hospital, community mental health center, or other facility utilized for the diagnosis, care, treatment, or hospitalization of persons who are alcoholics, drug dependent individuals, or drug abusers and any other hospital or facility within the State of Georgia approved for such purpose by the department.
  12. "Full and fair hearing" or "hearing" means a proceeding before a hearing examiner under Code Section 37-7-83 or Code Section 37-7-93 or before a court as defined in paragraph (7) of this Code section. The hearing may be held in a regular courtroom or in an informal setting, in the discretion of the hearing examiner or the court, but the hearing shall be recorded electronically or by a qualified court reporter. The patient shall be provided with effective assistance of counsel. If the patient cannot afford counsel, the court shall appoint counsel for him or the hearing examiner shall have the court appoint such counsel; provided, however, that the patient shall have the right to refuse in writing the appointment of counsel, in the discretion of the hearing examiner or the court. The patient shall have the right to confront and cross-examine witnesses and to offer evidence. The patient shall have the right to subpoena witnesses and to require testimony before the hearing examiner or in court in person or by deposition from any physician upon whose evaluation the decision of the hearing examiner or the court may rest. The patient shall have the right to obtain a continuance for any reasonable time for good cause shown. The hearing examiner and the court shall apply the rules of evidence applicable in civil cases. The burden of proof shall be upon the party seeking treatment of the patient. The standard of proof shall be by clear and convincing evidence. At the request of the patient, the public may be excluded from the hearing. The patient may waive his right to be present at the hearing, in the discretion of the hearing examiner or the court. The reason for the action of the court or hearing examiner in excluding the public or permitting the hearing to proceed in the patient's absence shall be reflected in the record.
  13. "Incapacitated by alcohol or drugs" means that a person, as a result of the use of alcoholic beverages, any drug, or any other substances listed in paragraph (8) of this Code section, exhibits life-threatening levels of intoxication, withdrawal, or imminent danger thereof, or acute medical problems; or is under the influence of alcoholic beverages or drugs or any other substances listed in paragraph (8) of this Code section to the extent that the person is incapable of caring for himself or protecting himself due to the continued consumption or use thereof.
  14. "Individualized treatment plan" means a proposal developed during a patient's stay in a facility and which is specifically tailored to the individual patient's treatment needs. Each plan shall clearly include the following:

    (14.1) "Inpatient" means a person who is an alcoholic, a drug dependent individual, or a drug abuser and:

    1. A statement of treatment goals or objectives based upon and related to a proper evaluation, which can be reasonably achieved within a designated time interval;
    2. Treatment methods and procedures to be used to obtain these goals, which methods and procedures are related to these goals and which include a specific prognosis for achieving these goals;
    3. Identification of the types of professional personnel who will carry out the treatment and procedures, including appropriate medical or other professional involvement by a physician or other health professional properly qualified to fulfill legal requirements mandated under state and federal law;
    4. Documentation of patient involvement and, if applicable, the patient's accordance with the treatment plan; and
    5. A statement attesting that the chief medical officer has made a reasonable effort to meet the plan's individualized treatment goals in the least restrictive environment possible closest to the patient's home community.
      1. Who presents a substantial risk of imminent harm to that person or others, as manifested by either recent overt acts or recent expressed threats of violence which present a probability of physical injury to that person or other persons; or
      2. Who is incapacitated by alcoholic beverages, drugs, or any other substances listed in paragraph (8) of this Code section on a recurring basis; and
    6. Who is in need of involuntary inpatient treatment.

    (14.2) "Inpatient treatment" or "hospitalization" means a program of treatment for alcoholics, drug dependent individuals, or drug abusers within a hospital facility setting.

    (14.3) "Involuntary treatment" means inpatient or outpatient treatment which a patient is required to obtain pursuant to this chapter.

  15. "Least restrictive alternative," "least restrictive alternative placement," "least restrictive environment," or "least restrictive appropriate care and treatment" means that which is the least restrictive available alternative, placement, environment, or care and treatment, respectively, within the limits of state funds specifically appropriated therefor.

    (15.1) "Outpatient" means a person who is an alcoholic, drug dependent individual, or drug abuser and:

    1. Who is not an inpatient but who, based on the person's treatment history or recurrent lack of self-control regarding the use of alcoholic beverages, drugs, or any other substances listed in paragraph (8) of this Code section, will require outpatient treatment in order to avoid predictably and imminently becoming an inpatient;
    2. Who because of the person's current mental state and recurrent lack of self-control regarding the use of alcoholic beverages, drugs, or any other substances listed in paragraph (8) of this Code section or nature of the person's alcoholic behavior or drug dependency or drug abuse is unable voluntarily to seek or comply with outpatient treatment; and
    3. Who is in need of involuntary treatment.

    (15.2) "Outpatient treatment" means a program of treatment for alcoholics, drug dependent individuals, or drug abusers outside a hospital facility setting which includes, without being limited to, medication and prescription monitoring, individual or group therapy, day or partial programming activities, case management services, and other services to alleviate or treat the patient's lack of self-control regarding the use of alcoholic beverages, drugs, or any other substances listed in paragraph (8) of this Code section so as to maintain the patient's semi-independent functioning and to prevent the patient's becoming an inpatient.

  16. "Patient" means any alcoholic, drug dependent individual, or drug abuser who seeks treatment under this chapter or any person for whom such treatment is sought.
  17. "Private facility" means any hospital facility that is a proprietary hospital or a hospital operated by a nonprofit corporation or association approved for the purposes of this chapter and a hospital facility operated by a hospital authority created pursuant to Article 4 of Chapter 7 of Title 31.

    (17.1) "Psychologist" means a licensed psychologist who meets the criteria of training and experience as a health service provider psychologist as provided in Code Section 31-7-162.

    (17.2) "Regional state hospital administrator" means the chief administrative officer of a state owned or state operated hospital and the state owned or operated community programs in a region. The regional state hospital administrator has overall management responsibility for the regional state hospital and manages services provided by employees of the regional state hospital and employees of state owned or operated community programs within a mental health, developmental disabilities, and addictive diseases region established in accordance with Code Section 37-2-3.

  18. "Representatives" means the persons appointed as provided in Code Section 37-7-147 to receive notice of the proceedings for voluntary or involuntary treatment.
  19. "Superintendent" means the chief administrative officer who has overall management responsibility at any facility, other than a regional state hospital or state owned or operated community program, receiving patients under this chapter or an individual appointed as the designee of such superintendent.
  20. "Treatment" means the broad range of emergency, outpatient, intermediate, and inpatient services and care, including diagnostic evaluation, medical, psychiatric, psychological, and social service care, vocational rehabilitation, and career counseling, which may be extended to alcoholics, intoxicated persons, drug dependent individuals, and drug abusers.
  21. "Treatment facility" means a facility designated by the department to receive patients for treatment as provided in Part 3 of Article 3 of this chapter.

(Code 1933, § 88-401, enacted by Ga. L. 1978, p. 1856, § 1; Ga. L. 1979, p. 744, §§ 1-3; Ga. L. 1982, p. 3, § 37; Ga. L. 1983, p. 3, § 28; Ga. L. 1986, p. 1098, § 6; Ga. L. 1991, p. 1059, § 27; Ga. L. 1992, p. 6, § 37; Ga. L. 1992, p. 1902, § 15; Ga. L. 1993, p. 1445, § 17.7; Ga. L. 2002, p. 1324, § 1-15; Ga. L. 2009, p. 453, § 3-19/HB 228.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1987, the second "alcoholic" was substituted for "alcholic" in paragraph (13).

Editor's notes.

- Ga. L. 1993, p. 1445, § 18.1, not codified by the General Assembly, provides: "Nothing in this Act shall be construed to repeal any provision of Chapter 5 of Title 37 of the Official Code of Georgia Annotated, the 'Community Services Act for the Mentally Retarded.' "

Ga. L. 1993, p. 1445, § 19, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1994; provided, however, that provisions relating to the establishment of regional and community service board boundaries and the appointments of regional boards and community service boards shall become effective on July 1, 1993, or upon whatever date is stipulated in the Act and provided, further, that the provisions authorizing a county board of health to agree to serve as the lead county board of health for only that county shall become effective upon the approval of this Act by the Governor or upon its becoming law without such approval." The Act was approved by the Governor on April 27, 1993.

Ga. L. 1993, p. 1445, which amends this Code section, provides, in § 19.1, not codified by the General Assembly, that the amendment is repealed on June 30, 1999; however, Ga. L. 1998, p. 870, § 1, struck § 19.1 of Ga. L. 1993, p. 1445, which would have repealed the 1993 amendment to this Code section.

Law reviews.

- For annual survey of law on labor and employment law, see 62 Mercer L. Rev. 181 (2010). For comment on City of Macon v. Southern Bell Tel. & Tel. Co., 89 Ga. App. 252, 79 S.E.2d 265 (1953), see 17 Ga. B.J. 117 (1954). For comment on Burger v. State, 118 Ga. App. 328, 163 S.E.2d 333 (1968), see 5 Ga. St. B.J. 384 (1969). For comment, "1986 Amendments to Georgia's Mental Health Statutes: The Latest Attempt to Provide a Solution to the Problem of the Chronically Mentally Ill," see 36 Emory L.J. 1313 (1987).

JUDICIAL DECISIONS

Cited in City of Macon v. Southern Bell Tel. & Tel. Co., 89 Ga. App. 252, 79 S.E.2d 265 (1953); Burger v. State, 118 Ga. App. 328, 163 S.E.2d 333 (1968).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Drugs and Controlled Substances, §§ 88 et seq., 96, 100. 45 Am. Jur. 2d, Intoxicating Liquors, § 14. 71 Am. Jur. 2d, State and Local Taxation, § 48.

C.J.S.

- 48 C.J.S., Intoxicating Liquors, §§ 1, 2, 3, 16, 29, 30.

ALR.

- Prosecution of chronic alcoholic for drunkenness offenses, 40 A.L.R.3d 321.

37-7-2. Authority of board to issue regulations; powers of department generally.

  1. The board shall issue regulations to implement this chapter in accordance with the intent of this chapter to safeguard the rights of alcoholics, drug dependent individuals, or drug abusers, as set forth in Code Sections 37-7-100, 37-7-101, and 37-7-120, and Article 6 of this chapter.
  2. In addition to the other powers provided by this chapter, the department shall have the authority:
    1. To enforce the regulations issued by the board;
    2. To prescribe the forms of applications, records, medical certificates, and any other forms required or used under this chapter and the information required to be contained therein;
    3. To require such reports from any facility as it may find necessary to the performance of its duties or functions;
    4. To visit facilities regularly to review the hospitalization procedures applied to all patients;
    5. To determine the care and treatment being given all patients;
    6. To develop criteria for providing priority in access to services and admissions to programs for drug or alcohol dependent pregnant females;
    7. To investigate complaints and make reports and recommendations relative thereto; and
    8. To make effective such procedures and orders as may be appropriate to carry out the provisions of this chapter.

      Notwithstanding the powers granted to the department under this Code section, the requirements of this Code section as to determination of treatment and care of patients and the investigation of complaints shall not apply to patients hospitalized in an institution operated by or under the control of the United States Department of Veterans Affairs or any other federal agency.

(a.1)The board shall issue regulations to implement the provisions of Code Section 40-5-63.1 relative to clinical evaluations and substance abuse treatment programs and shall prescribe such application fees for providers desiring authorization to provide clinical evaluations or substance abuse treatment programs as are reasonably necessary to cover the cost of considering such applications. Such regulations shall provide for approval of providers and such approval shall be valid continuously unless and until revoked in accordance with such regulations.

(Code 1933, § 88-406.1, enacted by Ga. L. 1971, p. 273, § 1; Code 1933, § 88-407.1, enacted by Ga. L. 1978, p. 1856, § 1; Ga. L. 1990, p. 45, § 1; Ga. L. 1991, p. 977, § 3; Ga. L. 1997, p. 760, § 6.)

Editor's notes.

- Ga. L. 1997, p. 760, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Teenage and Adult Driver Responsibility Act.'"

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.

Law reviews.

- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 203 (1997).

37-7-3. Coordination of state drug and alcohol abuse programs.

All programs conducted by state agencies with respect to drug and alcohol abuse, except the regulation of the sale or dispensation of drugs and related products by the Board of Pharmacy pursuant to Georgia laws and the investigation of criminal conduct pertaining to illegal drugs transferred to the Department of Public Safety shall be coordinated by the Department of Behavioral Health and Developmental Disabilities; provided, however, that any other state agency is not precluded or prohibited from conducting an educational program relating to drug or alcohol abuse.

(Ga. L. 1972, p. 1069, § 6; Ga. L. 2009, p. 453, § 3-2/HB 228; Ga. L. 2010, p. 878, § 37/HB 1387.)

The 2010 amendment, effective June 3, 2010, part of an Act to revise, modernize, and correct the Code, substituted "provided, however, that" for "provided, however," in this Code section.

37-7-4. Validity of hospitalization orders entered before September 1, 1978; establishment of regulations authorizing continued hospitalization of patients hospitalized before September 1, 1978.

No hospitalization of an alcoholic, drug dependent individual, or drug abuser lawful before September 1, 1978, shall be deemed unlawful because of the enactment of this chapter. The board is authorized to establish reasonable regulations to require that the chief medical officer of each treatment facility apply under Code Section 37-7-83 for an order authorizing continued hospitalization of any patient for whom such hospitalization is necessary and who was initially hospitalized under an order of a court prior to September 1, 1978. Such prior orders of hospitalization entered by the courts, unless superseded at an earlier date by an order under this chapter or unless such prior orders expire under their own terms at an earlier date, shall remain valid until March 1, 1979, after which all such orders shall be null and void and of no effect.

(Code 1933, § 88-407.6, enacted by Ga. L. 1978, p. 1856, § 1.)

37-7-5. Immunity from liability for actions taken in good faith compliance with admission and discharge provisions of chapter.

Any physician, psychologist, peace officer, attorney, or health official, or any hospital official, agent, or other person employed by a private hospital or at a facility operated by the state, by a political subdivision of the state, or by a hospital authority created pursuant to Article 4 of Chapter 7 of Title 31, who acts in good faith in compliance with the admission and discharge provisions of this chapter shall be immune from civil or criminal liability for his actions in connection with the admission of a patient to a facility or the discharge of a patient from a facility.

(Code 1933, § 88-402.23, enacted by Ga. L. 1978, p. 1856, § 1; Ga. L. 1981, p. 996, § 1.)

Cross references.

- Liability of law enforcement officers for actions taken at scene of emergency, § 35-1-7.

Employment and training of peace officers, T. 35, C. 8.

Physicians generally, T. 43, C. 34.

Psychologists generally, T. 43, C. 39.

JUDICIAL DECISIONS

No immunity for actions not in good faith.

- O.C.G.A. § 37-7-5 bestows only qualified immunity on a physician for the execution of a certificate. Thus, a malpractice suit is not barred inasmuch as the physician is liable for actions not taken in good faith. Watkins v. Roche, 529 F. Supp. 327 (S.D. Ga. 1981).

37-7-6. Apprehension by peace officer of patient who leaves facility without permission.

If, during the period of involuntary hospitalization pursuant to any valid physician's certificate, court order, or order by the hearing examiner authorized by this chapter, a patient escapes or otherwise leaves a facility without permission, the facility may advise any peace officer that the patient has escaped or otherwise left the facility without permission; and the peace officer shall be authorized to take such patient into custody and return him to such facility.

(Code 1933, § 88-407.9, enacted by Ga. L. 1979, p. 744, § 11.)

37-7-7. Approval of private facilities as emergency receiving facilities, evaluating facilities, or treatment facilities; powers and duties of private facilities; right to deny admission.

Any private facility within this state may be approved as an emergency receiving facility, an evaluating facility, or a treatment facility by the department at the request of or with the consent of the governing officers of such private facility. When so approved, the private facility shall have all powers given to the corresponding type of state owned or state operated facility under the provisions of this chapter on voluntary admission, emergency admission, admission for evaluation, and involuntary hospitalization and shall have all duties and obligations of such facilities imposed by this chapter, except that any such private facility may decline to accept any patient who is unable to pay it for hospitalization or for whom it has no available space.

(Code 1933, § 88-407.5, enacted by Ga. L. 1978, p. 1856, § 1.)

37-7-8. "Drug" defined; Right of minor to obtain treatment of drug abuse on his consent alone; binding effect of consent; informing minor's parent, spouse, custodian, or guardian of treatment.

  1. As used in this Code section, the term "drug" means any drug as defined in Code Section 26-3-2, any dangerous drug as defined in Code Section 16-13-71, any controlled substance as defined in Code Section 16-13-21, and any narcotic drug as defined in Code Section 16-13-21.
  2. The consent to the provision of medical or surgical care or services by a hospital or public clinic or to the performance of medical or surgical care or services by a physician licensed to practice medicine and surgery, when such consent is given by a minor who is or professes to be suffering from drug abuse, shall be as valid and binding as if the minor had achieved his majority, provided that any such treatment shall involve procedures and therapy related to conditions or illnesses arising out of the drug abuse which gave rise to the consent authorized under this Code section. Any such consent shall not be subject to later disaffirmance by reason of minority. The consent of no other person or persons, including but not limited to a spouse, parent, custodian, or guardian, shall be necessary in order to authorize the provision to such minor of such medical or surgical care or services as are described in this subsection.
  3. Upon the advice and direction of a treating physician or, if more than one, of any one of them, a member of the medical staff of a hospital or public clinic or a physician licensed to practice medicine and surgery may, but shall not be obligated to, inform the spouse, parent, custodian, or guardian of any such minor as to the treatment given or needed. Such information may be given to or withheld from the spouse, parent, custodian, or guardian without the consent of the minor patient and even over the express refusal of the minor patient to the providing of such information.

(Ga. L. 1971, p. 337, §§ 1-3.)

Cross references.

- Giving of consent for surgical or medical treatment generally, T. 31, C. 9.

Right of minor to obtain medical, surgical, or other treatment for venereal disease on minor's consent alone, § 31-17-7.

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Drugs and Controlled Substances, §§ 1, 2, 4, 6, 18. 59 Am. Jur. 2d, Parent and Child, § 71.

C.J.S.

- 28 C.J.S., Drugs and Narcotics, §§ 1, 2.

ALR.

- Transplantation: power of parent, guardian, or committee to consent to surgical invasion of ward's person for benefit of another, 35 A.L.R.3d 692.

Propriety of surgically invading incompetent or minor for benefit of third party, 4 A.L.R.5th 1000.

ARTICLE 2 HOSPITALIZATION AND TREATMENT OF VOLUNTARY PATIENTS

37-7-20. Admission of voluntary patients; parental consent to treatment; giving notice of rights to patient at time of admission.

  1. The chief medical officer of any facility may receive for observation and diagnosis any patient 12 years of age or older making application therefor, any patient under 18 years of age for whom such application is made by his parent or guardian, and any patient who has been declared legally incompetent and for whom such application is made by his guardian. If found to show evidence of alcoholism, drug dependence, or drug abuse and to be suitable for treatment, such person may be given care and treatment at such facility; and such person may be detained by such facility until discharged pursuant to Code Section 37-7-21 or 37-7-22. The parents or guardian of a minor child must give written consent to such inpatient treatment. An individualized treatment plan shall be developed for such person as soon as possible.
  2. Any individual voluntarily admitted to a facility under this Code section shall be given notice of his rights under this chapter at the time of his admission.

(Code 1933, § 88-404.1, enacted by Ga. L. 1971, p. 273, § 1; Code 1933, § 88-403.1, enacted by Ga. L. 1978, p. 1856, § 1; Ga. L. 1979, p. 744, § 6.)

Cross references.

- Giving of consent for surgical or medical treatment generally, T. 31, C. 9.

JUDICIAL DECISIONS

Involuntary treatment.

- One who is admitted under subsection (a) of O.C.G.A. § 37-7-20 can be treated while remaining a voluntary patient, and the reference in subsection (a) to voluntary patients under "subsection (a) of Code Section37-7-20" includes those who admit themselves for treatment. Ridgeview Inst., Inc. v. Wingate, 271 Ga. 512, 520 S.E.2d 445 (1999).

Standards for involuntary retention of alcoholic patients are found in O.C.G.A. § 37-7-22 and by that section's references to O.C.G.A. §§ 37-7-41,37-7-61, and37-7-81. Ridgeview Inst., Inc. v. Wingate, 271 Ga. 512, 520 S.E.2d 445 (1999).

Discharge of voluntary patient.

- O.C.G.A. § 37-7-22(a) applies to the discharge of patients voluntarily admitted for treatment under subsection (a) of O.C.G.A. § 37-7-20, as well as voluntary patients admitted for evaluation or observation. Ridgeview Inst., Inc. v. Wingate, 271 Ga. 512, 520 S.E.2d 445 (1999), reversing Wingate v. Ridgeview Inst., Inc., 233 Ga. App. 649, 504 S.E.2d 714 (1998).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Drugs and Controlled Substances, §§ 89, 90, 91.

37-7-21. Discharge of voluntary patients upon recovery or termination of need for hospitalization; notice of discharge.

  1. The chief medical officer of the facility shall discharge any voluntary patient who has recovered from his alcoholism, drug dependency, or drug abuse or who has sufficiently improved that the chief medical officer determines, after consideration of the recommendations of the treatment team, that hospitalization of the patient is no longer necessary, provided that in no event shall any such patient be so discharged if, in the judgment of the chief