Right to counsel

Most indigent adult patients and proposed patients have the right to counsel in involuntary commitment matters, as do certain minors. An adult under a court-ordered guardianship whose guardian has admitted them has the right to counsel in regards to contested discharge requests, but they seemingly do not have the ability to challenge their initial commitment.

Generally

Under Ga. Code. Ann. § 37-3-81.1, the court may order inpatient or outpatient mental health-related treatment on an involuntary basis.  There is a right to counsel for indigent respondents in dentention, civil commitment proceedings, and appeals related to these matters. See Ga. Code Ann. §§ 37-3-44(a) (notice of right to counsel immediately upon arrival at the emergency receiving facility); 37-3-62 (for hearings on court ordered evaluation petitions, which are scheduled if the court “finds reasonable cause to believe that the patient … requir[es] involuntary treatment,” the patient is entitled to appointed counsel if they cannot afford counsel); 37-3-81(a)(2) (related to detention of mental health patient beyond evaluation period); 37-3-83 (related to continued involuntary hospitalization); 37-3-92(a) (related to hearings regarding noncompliance with outpatient treatment plan, which may result in custody, hospitalization, or detention for evaluation and treatment); 37-3-150 (appeal rights of mental health patients); 37-4-110 (appeal rights of developmentally disabled persons). 

Contested discharge requests of “voluntary” patients

Generally

Ga. Code Ann., § 37-3-22(a) states:

A voluntary patient, other than a minor child for whom admission has been sought by his parents or guardian, who has admitted himself to a facility pursuant to subsection (a) of Code Section 37-3-20 or any voluntary patient’s personal representative, legal guardian, parent, spouse, attorney, or adult next of kin may request such patient’s discharge in writing at any time after his admission. If the patient was admitted on his own application and the request for discharge is made by a person other than the patient, the discharge shall be conditioned upon the agreement of the patient thereto, unless such other person is the legal guardian of the patient’s person… Within 72 hours, excluding Sundays and legal holidays, of the delivery of a written request for release to the chief medical officer, the patient must be discharged from the facility, unless the chief medical officer finds that the discharge would be unsafe for the patient or others, in which case proceedings for involuntary treatment must be initiated under either Code Section 37-3-41, Code Section 37-3-61, or Code Section 37-3-81.“

(emphasis added). If proceedings are initiated under Code Sections 37-3-41 (“Admission to an emergency receiving facility”), 37-3-61 (“Petition for court ordered evaluation”), or 37-3-81 (“Determination of involuntary treatment”), the right to counsel attaches. See Ga. Code Ann. §§ 37-3-44; 37-3-62; and 37-3-81, discussed above.

In the context of patients under guardianship

Previously, patients admitted “voluntarily” by their guardian were not considered to be able to challenge their commitment by requesting their own discharge. However, in Heichelbech v. Evans, the Middle District of Georgia held that this policy violated due process by denying such persons “a liberty interest created by state law.” 798 F.Supp. 708, 712 (M.D. Ga. 1992). Thus, such individuals have the right to request their discharge. If the medical facility contests the discharge and initiates proceedings for involuntary treatment as permitted by Section 37-3-22(a), the right to counsel would presumably attach. To learn more about Heichelbech v. Evans, see Georgia, Litigation, Civil Commitment: Presumptive right to counsel – Guardianship context.

As to substance dependency 

There is also a right to counsel in involuntary commitment matters sought due to chemical dependency. See Ga. Code. Ann. §§ 37-7-44 (upon arrival at emergency receiving facility); 37-7-62 (hearings on petitions for court-ordered evaluations); 37-7-81 (related to detention of patient beyond evaluation period).

As to minors

“Voluntary” treatment where consent given by parent or guardian

Seemingly no procedure to object.

A parent or guardian may consent on behalf of an individual who is younger than 18 years of age as to both mental health-related, Ga. Code. Ann. § 37-3-20(a), and substance dependency-related treatment, § 37-7-20, and must consent on behalf of a minor if inpatient treatment is sought.  

Although patients 12 years of age or older may consent on their own behalf, at least to initial observation and diagnosis at a facility, id., it does not appear that minors whose parent or guardian consented to their admission or treatment have the ability to object (a process to which the right to counsel may attach), as Sections 37-3-22 and 37-7-22 state:

A voluntary patient, other than a minor child for whom admission has been sought by his parents or guardian, who has admitted himself to a facility … or any voluntary patient’s personal representative, legal guardian, parent, spouse, attorney, or adult next of kin may request such patient’s discharge in writing at any time after his admission.

(emphasis added).

Where treatment is sought in Child in Need of Services case

Right to counsel applies.

The involuntary mental health-related commitment or treatment of a child can be sought as part of a Child in Need of Services (CHINS) case. See Ga. Code Ann. § 15-11-451(d) (“If, during the comprehensive services plan hearing or any subsequent review hearing, the court determines that a child is mentally ill or developmentally disabled and meets the requirements for civil commitment pursuant to Chapters 3 and 4 of Title 37, such child may be committed to an appropriate treatment setting.”). 

A child subject to a CHINS matter has the right to counsel, and the right extends to appeals. Ga. Code Ann. § 15-11-402(a), (e).