2020 Georgia Code
Title 37 - Mental Health
Chapter 3 - Examination, Treatment, etc., for Mental Illness
Article 3 - Examination, Hospitalization, and Treatment of Involuntary Patients
Part 1 - Emergency Receiving Facilities for Examination of Persons Apprehended Pursuant to Physician's Certificate, Court Order, Etc
§ 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.

- 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.

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

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

- 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).

- 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 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).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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).

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.