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Procedure for Continued Involuntary Hospitalization

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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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).

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