GA Code § 37-7-41 (2021)
2021 Georgia Code|Title 37 - Mental Health|Chapter 7 - Hospitalization and Treatment of Alcoholics, Drug Dependent Individuals, and Drug Abusers|Article 3 - Examination, Hospitalization, and Treatment of Involuntary Patients|Part 1 - Emergency Receiving Facilities for Examination of Persons Apprehended Pursuant to Physician's Certificate or Court Order|§ 37-7-41. Emergency Involuntary Treatment; Who May Certify Need; Delivery for Examination; Report of Delivery Required; Annual Report

  Any physician within this state may execute a certificate stating that he has personally examined a person within the preceding 48 hours and found that, based upon observations set forth in the certificate, the person appears to be an alcoholic, a drug dependent individual, or a drug abuser 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 forthwith to the nearest available emergency receiving facility serving the county in which the patient is found, where he shall be received for examination.   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 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 an alcoholic, a drug dependent individual, or a drug abuser requiring involuntary treatment. The court order shall expire seven days after it is executed.   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 custody shall be made a part of the patient's record.   Any psychologist, clinical social worker, licensed professional counselor, marriage and family therapist, 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, a marriage and family therapist, 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; the term "marriage and family therapist" means any person authorized under the laws of this state to practice as a licensed marriage and family therapist; 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.   No later than February 15, 2023, and annually thereafter, the department shall prepare a report with de-identified, aggregated data from the written reports required by subsection (b) of Code Section 37-7-40 to the General Assembly, the Governor, the Lieutenant Governor, and the Speaker of the House of Representatives during each regular legislative session. The annual report shall include the following data from the previous calendar year:   The total number of certificates received at the emergency receiving facility by county from which the certificate was issued;   The total number of certificates received at the emergency receiving facility by each type of licensed professional authorized by this Code section;   The total number of individuals examined in each emergency receiving facility designated or utilized by the department in accordance with subsection (a) of this Code section; and   The total number of individuals admitted to each emergency receiving facility designated or utilized by the department following an examination in accordance with subsection (a) of this Code section.      (Code 1933, § 88-404.7, enacted by Ga. L. 1971, p. 273, § 1; Code 1933, § 88-404.2, enacted by Ga. L. 1978, p. 1856, § 1; Ga. L. 1981, p. 996, § 2; Ga. L. 1987, p. 3, § 37; Ga. L. 1992, p. 2531, § 2; Ga. L. 1994, p. 1249, § 2; Ga. L. 2014, p. 347, § 2/SB 65; Ga. L. 2015, p. 4, § 1/SB 53; Ga. L. 2016, p. 864, § 37/HB 737; Ga. L. 2017, p. 617, § 1/SB 52; Ga. L. 2021, p. 686, § 4/HB 591.)    The 2021 amendment,  effective July 1, 2021, in subsection (d), inserted "marriage and family therapist," near the middle of the first sentence, inserted "a marriage and family therapist," in the middle of the second sentence, inserted "the term 'marriage and family therapist' means any person authorized under the laws of this state to practice as a licensed marriage and family therapist;" in the middle of the third sentence; and added subsection (e).   Cross references.   - Arrest of persons, T. 17, C. 4.   Licensing of applied psychologists, T. 43, C. 39.   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.   Law reviews.   - For survey article on torts, see 34 Mercer L. Rev. 271 (1982). For survey article on construction law, see 59 Mercer L. Rev. 55 (2007). For note, "The Diversion of Drug Abusers from the Criminal Justice System: Georgia's Proposed Legislation," see 23 Emory L.J. 1071 (1974). 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   Drug and alcohol abusers concern both state and its citizens.    - O.C.G.A. Ch. 7, T. 37 provides citizens with the means of protecting themselves from those persons suffering from alcohol or drug related problems, as well as at the same time helping those who, because of their problem, are unable to help themselves. Such concern and conduct is simply not the exclusive province of the state, and O.C.G.A. § 37-7-41 merely is a way for an ordinary citizen to manifest his or her interest in a positive way. Watkins v. Roche, 529 F. Supp. 327 (S.D. Ga. 1981).   Presence of state action in initiating involuntary examination.   - Subjugation of an individual for an involuntary examination is not dependent upon a physician's certificate. Laymen may, by way of affidavits, initiate the process leading to an examination as well, although in not as a direct a manner as physicians. Secondly, physicians are not compelled by the state to sign certificates. Both of these factors militate against the finding of state action against a doctor to support an action under 42 U.S.C. § 1983. Watkins v. Roche, 529 F. Supp. 327 (S.D. Ga. 1981).    Because O.C.G.A. § 37-7-41 permits ordinary citizens other than doctors to initiate the process for securing examinations, the suggestion of state action under the theory of performing a "public function" is weakened, if not eliminated. Otherwise, the actions of laymen would be subjected to the label of state action. Watkins v. Roche, 529 F. Supp. 327 (S.D. Ga. 1981).   Physician's training and penalties for abuse safeguard interests of examinee.    - There are incentives not to abuse the authority of O.C.G.A. § 37-7-41 that are not applicable to a layman, such as, perhaps, the loss of the license to practice medicine for professional misconduct or the possibility of being sued for malpractice. By allowing a physician to bypass the necessity of obtaining a court order, the General Assembly implicitly recognized that a physician's training, expertise, and professionalism qualify the physician to make a judgment in the best interests of a person to which a court could add but little, if anything. Watkins v. Roche, 529 F. Supp. 327 (S.D. Ga. 1981).   Procedures under subsections (a) and (b) compared.    - Procedural differences of subsections (a) and (b) of O.C.G.A. § 37-7-41 do not detract from the private nature of the conduct permitted by those subsections. The beliefs of laymen, grounded on credible observations, are sufficient to warrant a court ordered examination. The fact that a court makes the final decision should not be viewed as meaning that the nature of a physician's conduct, in the context of subsection (a), is equal to that of the court in terms of state action. The distinction in procedure is justified since it is rare that laymen are qualified to make medical judgments. The presence, or rather, the interposition, of the court serves as a shield to guard against malicious or vexatious attempts to harass a person by subjecting the person to needless examinations. Watkins v. Roche, 529 F. Supp. 327 (S.D. Ga. 1981).    Certificate requirement set forth in O.C.G.A. § 37-7-41 is essential; the certificate provides a safeguard against unilateral involuntary confinement of an individual. Kendrick v. Metropolitan Psychiatric Ctr., Inc., 158 Ga. App. 839, 282 S.E.2d 361 (1981).   When peace officer not necessary under subsection (a).    - Peace officer's involvement is not a necessary prerequisite to compliance with subsection (a) of O.C.G.A. § 37-7-41 since if a person happens to be present at a treatment facility, a peace officer is not needed to bring that person to a facility. Kendrick v. Metropolitan Psychiatric Ctr., Inc., 158 Ga. App. 839, 282 S.E.2d 361 (1981).   Discretion of physician as to issuance of certificate.   - State does not reward a physician for executing a certificate or punish a physician for failing to sign one. The language of this section clearly states that "Any physician . . . may execute a certificate . . ." and in no manner implies that the execution of the certificate is mandatory. Obviously, the physician enjoys discretion in the matter. Watkins v. Roche, 529 F. Supp. 327 (S.D. Ga. 1981).   Power under certificate is very limited, despite involuntary aspects.   - Consequence of a certificate is nothing more than an examination, albeit involuntary. The power of a certificate is very limited. It does not commit a person for treatment. It merely subjects a person to any emergency care that may be required and an examination by the state to confirm or reject the beliefs stated in the certificate. Once a person is admitted to a receiving facility, an examination must be made by a state doctor within 24 hours. Watkins v. Roche, 529 F. Supp. 327 (S.D. Ga. 1981).   Concurring opinion of two physicians is prerequisite to involuntary confinement.    - To justify an individual's involuntary detention or confinement, subsection (a) of O.C.G.A. § 37-7-41 and O.C.G.A. § 37-7-43 require a concurring opinion of two physicians that a patient requires involuntary treatment. The first physician's diagnosis and certificate that an individual is in need of treatment authorizes involuntary taking of that person to an emergency receiving facility to undergo, within 24 hours, an examination by a second physician. If upon that second examination the examining physician concludes that the patient is in need of or requires treatment, then that patient can be legally confined in an evaluation facility without his or her consent. Kendrick v. Metropolitan Psychiatric Ctr., Inc., 158 Ga. App. 839, 282 S.E.2d 361 (1981).   Decision to commit ultimately rests with state, not private physician.   - Decision to refer a person for further evaluation and, perhaps, for treatment rests with the state and the state alone. A private physician cannot commit someone, in the usual sense of the word, solely by a certificate. Basically, the certificate simply initiates the state's involvement and is not of and in itself the point of origin of state action. Watkins v. Roche, 529 F. Supp. 327 (S.D. Ga. 1981).   Psychiatrist had no requirement to initiate involuntary treatment.    - In an action arising from a patient's driving under the influence and killing another, the trial court did not err in granting summary judgment to the psychiatrist as to the ordinary-negligence claim because the decedent's spouse cited no authority to support the implicit contention that the psychiatrist was required to initiate involuntary treatment on a patient any time the psychiatrist believed a patient was under the influence of alcohol. Stanley v. Garrett, 356 Ga. App. 706, 848 S.E.2d 890 (2020).   Order does not authorize full inventory search.    - 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).    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).   RESEARCH REFERENCES   ALR.   - Validity and construction of statutes providing for civil commitment of arrested narcotic addicts, 98 A.L.R.2d 726.