GA Code § 37-3-148 (2021)
2021 Georgia Code|Title 37 - Mental Health|Chapter 3 - Examination, Treatment, etc., for Mental Illness|Article 6 - Rights and Privileges of Patients, Their Representatives, etc., Generally|Part 1 - General Provisions|§ 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

  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.   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).   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.