Understanding Your Legal Status: a Summary of Your Rights Pertaining to Civil Involuntary Mental Health Treatment
I. If You are Confined in an Emergency Receiving Facility
If you have been admitted to an emergency receiving facility without your consent and authorization, your admission was ordered by either:
1) A certificate issued by a physician, psychologist, clinical social worker, or clinical nurse specialist in psychiatry/mental health; or 2) A court order based on the certificate (above) or a court order based on affidavits by at least two persons stating they believe you required involuntary treatment. § OCGA 37-3- 41
Right to a Court Hearing
Immediately upon your arrival at an emergency receiving facility, the facility must give you written notice of your right to petition for a writ of habeas corpus or for a protective order, that you have a right to the assistance of an attorney, and that an attorney will be appointed for you if you cannot afford to pay for one. OCGA § 37-3-44
Right to Examination
You have the right to be examined by a physician as soon as possible, and not later than 48 hours after your admission. OCGA § 37-3-43(a)
How Long Will I Be Confined?
You must be discharged within 48 hours after your admission unless:
1) The physician or psychologist who examines you signs a written certificate stating that you have a mental illness and that you require involuntary treatment; or 2) You have a criminal charge pending, notice of which was given to the facility by a law enforcement agency, in which case the facility must provide written notice of its intent to discharge you to the agency. The agency has five days after receipt of the notice to take you into custody.
Transfer to an Evaluation Facility
Within 24 hours of the signing of the certificate by a physician or psychologist, you must be transferred to an evaluating facility unless you are released for outpatient treatment. OCGA § 37-3-43(b)
II. If You are Confined in an Evaluation Facility
If you have been admitted without your consent and authorization to an evaluation facility, your admission was ordered by either:
1) A certificate issued by a physician or psychologist at an emergency receiving facility stating that you require involuntary treatment; or
2) A court order based on a petition filed by a person along with a health care professional’s certificate stating that you were examined within the prior five days and stating that you have a mental illness and require involuntary treatment. OCGA § 37-3-61
Right to a Court Hearing Before Involuntary Admission on a Petition
The Probate Court (if you are an adult) or the Juvenile Court (if you are a child) must hold a hearing no sooner than ten days and no later than 15 days after a petition for a psychiatric evaluation is filed. You and your representative must receive notice of the hearing, including the time and place of the hearing. You have a right to the assistance of an attorney, and if you cannot afford one, one must be appointed for you. OCGA § 37-3-62
How Long Will I Be Confined?
You can be detained for no more than five days, excluding Saturdays, Sundays and holidays.
You must be discharged upon a finding that you do not require involuntary treatment, or that you can be provided without patient treatment services.
Otherwise, you must either be admitted to a facility on a voluntary basis, or be admitted for involuntary inpatient treatment. OCGA § 37-3-64(a)
If you have a criminal charge pending, notice of which was given to the facility by a law enforcement agency, the facility must provide written notice of its intent to discharge you to the agency, and the agency has five days after receipt of the notice to take you into custody. OCGA § 37-3-95
If you agree to confinement and treatment on a voluntary basis and you are made “voluntary,” you have the right to make a written request for your discharge at any time. The facility should provide you with a written form upon your request. Your written request for discharge must be delivered to the chief medical officer of the facility within 24 hours, excluding weekends and holidays. The chief medical officer then has up to 72 hours, excluding weekends and holidays, to either release you or begin proceedings for involuntary inpatient treatment.
Involuntary Inpatient Treatment
If the chief medical officer files a petition that is supported by the certification of two physicians or one physician and one psychologist stating that you require involuntary inpatient treatment, a court hearing will be held. The petition and certificates must be filed within five days of your admission, excluding weekends and holidays. You must be given notice of the time and place for the hearing. You have the right to legal counsel, and an attorney will be appointed for you if you cannot afford one. A copy of the facility’s petition, certifications, and individualized service plan must be provided to you. You have the right to be examined by a physician or psychologist of your own choice to prepare for the court hearing.
III. If You are Confined in a State Psychiatric Hospital /Institution or Other Mental Health Treatment Facility
If you have been admitted here, you were admitted either:
1) On a voluntary basis by which you, if 12 years or older, or a legal guardian signed for voluntary admission; or 2) On a court order finding that you met the criteria for involuntary inpatient treatment and authorizing your confinement for up to six months. OCGA § 37-3-81
How Long Will I Be Confined?
If you were admitted on a voluntary basis, you have the right to make a written request for your discharge. The facility is required to provide you with a written form to request discharge upon your request. Your written request for discharge must be delivered to the chief medical officer of the facility within 24 hours, excluding weekends and holidays. The chief medical officer then has 72 hours, excluding weekends and holidays, to either release you or to begin proceedings for involuntary inpatient treatment. OCGA § 37-3-20 You must be discharged by the facility staff, with arrangements for you to reside in a safe place and receive supports in the community, if it is determined that you no longer meet the criteria for involuntary inpatient treatment.
Continue Involuntary Inpatient Treatment
Although the initial period of involuntary inpatient treatment is for up to six months, your continued involuntary confinement may be extended beyond six months. For this to occur, the chief medical officer of the facility must first file a notice of intent to seek continued involuntary confinement (for up to 12 months) with the facility’s Committee for Continued Involuntary Treatment Review. The Committee must meet within ten days to review the notice and review your current situation. The Committee then makes a report to the Chief Medical Officer. If, after reviewing the Committee’s report, the Chief Medical Officer concludes that you require further involuntary treatment, then a petition for an order authorizing continued involuntary treatment must be filed, with a copy being sent to you and your representative.
The petition must notify you and your representative that:
1) You have the right to file a request for a hearing with a hearing examiner within 15 days after service of the petition; 2) You have a right to legal counsel at the hearing, and an attorney will be appointed if you cannot afford counsel; and 3) The court will appoint legal counsel for you unless you put in writing that you do not want to be represented by counsel or have made other arrangements for legal counsel.
If no hearing is requested within 15 days after service of the petition, the hearing examiner will review the Committee’s report and your updated individual service treatment plan. If the hearing examiner determines that continued involuntary treatment is necessary, an order for continued involuntary treatment involving treatment in a facility or on an outpatient basis, or both, will be issued for a period of time not to exceed one year.
If a hearing is requested, the hearing examiner must set a hearing date within 25 days of receiving the request, but no later than the expiration date of the initial six month order for involuntary treatment. The notice of the hearing must be served on you, your representative, your attorney, and the facility. The hearing must be a “full and fair” hearing with your right to cross-examine the witnesses testifying in favor of your continued involuntary treatment, and to present evidence and the testimony of witnesses in favor of you not being subjected to further involuntary treatment. It will be extremely important for you to show that you can survive safely in the community and have access to all needed supports and services on a voluntary basis.
This section of Georgia law may be subject to constitutional challenge, in that it places the burden on the person with mental illness to request a hearing in order to have a “full and fair” hearing. The requirement that the person request a hearing raises important due process questions when someone is not currently able to understand this requirement. OCGA § 37-3- 83
IV. What Can I Do to be Released as Soon as Possible?
Regardless of the facility where you are located, it is the physician, psychologist, and other people assigned to your treatment team who decide whether you meet inpatient criteria under Georgia’s mental health law. An inpatient is defined as someone who has a mental illness and who:
1) Is a substantial risk of harming himself or others, as shown by recent acts or recent threats of violence; or 2) Is unable to care for his or her own physical health and safety, and that inability creates an immediate life-threatening crisis. OCGA § 37-3-1(9.1)
Important Things You Can Do
• Remain as calm as possible.
• Do not fight with others.
• Do not raise your voice toward others.
• Obey the rules of the facility.
• Do not try to flee or leave without permission.
• If another person is threatening or bothering you, tell the staff.
Other Things That May Help
It is also important that you consider what your doctor or other staff says to you about your condition. For example, your doctor may advise you to take one or more medications. Although medications can have serious side effects, they may also help some people to live outside of facilities.
It is important to know that you have a right to refuse medication and other forms of treatment. Your right to refuse may be overridden under certain circumstances, such as immediate danger to self or others. Agreeing to take recommended medications may (but not necessarily) help you to be released earlier. If you decide to take recommended medications, be sure to report any side effects immediately to the staff.
Finally, you should also consider other forms of treatment that are available to you, such as psychotherapy, counseling, and all other rehabilitative services that the facility may offer.