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Mental Health Litigation & Law Primer

Mental Health Law Georgia
Competency to Stand Trial


Often, one of our first tasks as defense attorneys in the field of mental health is trying to determine whether or not our clients are speaking on the same level with us. When a person's symptoms of mental health challenges are such that their mind is operating at hyper-speed, we as attorneys often can't have a meaningful conversation with them as far as their case is concerned. These concerns give rise to questions as to whether a particular client is Competent to Stand Trial in a criminal case.


Different states view issues of competency in slightly different ways, but they are all required to take it into account when pursuing criminal charges. Why? Because the Supreme Court has determined that our federal Constitution requires, essentially, that a defendant have the capacity to understand his or her rights under that pact, and if it is found that she cannot, then it would violate that same Constitution to hold criminal proceedings because it would almost be as though the proceedings were going forward without the Defendant present. Can you imagine being charged with a crime and being told you cannot confront your accusers? Or that your ability to develop a defense was being withheld from you? Or that you couldn't have an attorney with you in the courtroom to help you with complicated legal concepts? That you, very simply, were to be convicted before the verdict ever came down?


This is precisely what would happen to an individual with acute symptoms of mental health challenges--mind-numbing voices in one's head; uncontrollably racing thoughts; a tidal wave of beliefs not rooted in reality--were we to force them to go to trial in spite of them. It would be as though they weren't even there. So, we protect those rights by ensuring that an accused is of the right state of mind to move forward with those proceedings. Furthermore, these concepts apply just as much to other major components of a criminal case and to potential resolutions to them, as well. If a client can't understand the rights he gives up by foregoing trial and entering a guilty plea instead, then a Court shouldn't accept such a plea. In fact, since having your charges read aloud in Court is a guaranteed right under the 6th Amendment, a Court should accept no plea of any kind, including those of Not Guilty, until the Defendant is properly restored to competency.

The Georgia procedures for competency, as well as the general defining framework, are found in O.C.G.A. §§17-7-129 and 17-7-130. If it is suspected that a criminal Defendant is not competent to proceed with meaningful components of the trial process, then a preliminary evaluation may be pursued, typically by defense counsel but authorized by Court Order. This preliminary evaluation is now an Ex Parte process, or may be pursued without the typical requirement of allowing the prosecuting attorney to be privy to, or to object to, the process or the evaluation report (the Court first receives the report and then sends to defense counsel, only). Should it be determined during this phase that the Defendant is not competent and either a Competency Trial or consent agreement for hospitalization and restoration be pursued by defense counsel, then at that point the report must be disseminated to the prosecution.

Once a Defendant is found Not Competent to Stand Trial by the criminal Court, she is sent to the custody of the Department of Behavioral Health and Developmental Disabilities (DBHDD) via a State psychiatric hospital's forensic unit, where they are mandated to be treated and restored to competency to stand trial. These hospitals are currently located in Atlanta, Columbus, Milledgeville, Augusta (developmental disabilities) and Savannah and are typically assigned based upon location of the criminal case. The lengths of time a person may be hospitalized for competency restoration are defined in the statute, and the process can be straightforward in some cases and complicated in others; there is rarely a clear answer as to how quickly (if at all) a person might respond. Furthermore, it is exceedingly rare that a restored Defendant sits for a trial in her case; oftentimes, a resolution that takes into account her mental health struggles and the progress made in the hospital can be agreed upon between the Defendant and prosecuting authority.


So, when we talk about competency, we're talking about the here and now, not whether a person was in a compromised state of mind at the time the offense is alleged to have occurred. Can we move forward with criminal proceedings in light of the accused's mental complications? This question is, by and large, answered by the opinion of a forensic professional in the field of psychiatry or psychology, and if the answer is no, then the proceedings MUST come to a halt until the issue is resolved.

Criminal Responsibility (The Insanity Defense)


Where Competency looks at the present, the Insanity Defense requires us as attorneys, jurors, and forensic evaluators to look back in time to the moment of the alleged offense. Except for Kansas, Idaho, and Utah, every state in the country allows for some form of an Insanity Defense, and even those three states allow for mental illness to be brought to issue, in some form, when required in a criminal case. For the remaining 47 states, the criteria for an Insanity Defense are essentially derived from one of four places (or a combination thereof): English Common Law (the M'Naughten Rule), U.S. Supreme Court precedent (the 1954 Durham Rule--now only utilized in New Hampshire), State Supreme Court precedent (the 1887 Alabama-born "Irresistible Impulse" Rule), or the Model Penal Code, developed in the 1970s to address gaps in the three former concepts).


Regardless of where it is derived, the Insanity Defense takes into account our values as Americans: that we don't hold someone criminally accountable for doing something bad when they are unable either to recognize the "evil" in their acts and/or are quite literally unable to resist committing that bad act because of active symptoms of mental illness. It does not mean there aren't any consequences for such a defendant to committing those bad acts, but it does mean that we aren't going to hold that person Criminally Responsible for a crime in the same way we would a person who, say, was capable of knowing what they were doing violated the law and our collective sense of morality.


While ultimately decided by a finder of fact (jury or judge), Criminal Responsibility is, like Competency to Stand Trial, generally determined by the opinion of a forensic professional in the field of psychiatry or psychology who is an expert with respect to the symptoms of mental illness and how they are to be applied to the law in whatever jurisdiction a case is presented. In every case involving the Insanity Defense, a criminal defendant must admitting to committing the bad act, but they are simultaneously arguing that they were not capable of forming that guilty mind because of their symptoms at the time and, thus, should not be found guilty of the charges. The expert or experts will look back to the moment of that stipulated offense, apply the concepts of medical and psychiatric science to the law and evidence as presented to them, and form an opinion as to whether the individual was "responsible" for committing the crime.

There are two different tests for criminal responsibility in Georgia that are governed by statute, those being O.C.G.A. §§16-3-2 and 16-3-3. Section 16-3-2 defines lack of mental capacity in the context of criminal responsibility or, in other words, whether a Defendant was capable of distinguishing between right and wrong at the time of the offense and in relation to the act committed. Section 16-3-3 sets the parameters for a defense under the delusional compulsion theory or, whether at the time of the offense, the Defendant was laboring under a delusion that compelled him to commit the act and that he was incapable of resisting that compulsion. It is important to note that established case law in Georgia has held that it isn't enough that the Defendant was simply laboring under such a delusion; that delusion must offer us an affirmative defense elsewhere under the law if the delusional framework were true. In other words, taking the life of a person with blonde hair because the Defendant heard voices compelling him to kill anyone with blonde hair would likely not qualify under this prong because there is no existing defense justifying the taking of a life under such circumstances. On the other hand, taking that same life because the Defendant heard voices that urgently warned him that the victim was imminently going to violently attack him, and he reacted under the delusion of a need to defend himself would likely qualify under that code section.

Procedurally in Georgia, a defense of Insanity is primarily governed by O.C.G.A. §§17-7-130.1 (evaluating procedures) and 17-7-131. These code sections provide the framework for evaluation of criminal responsibility by forensic doctors, as well as guidelines for what happens after a successful insanity defense plays out. The most important thing to take from the procedural code sections is that a finding of Not Guilty by Reason of Insanity (or, "NGRI") does not mean a Defendant walks right out of the courtroom unscathed. To the contrary, the law mandates the Defendant be committed to a State hospital for a period of time to determine whether or not she meets criteria for civil commitment (the same criteria as those mentioned below in the Involuntary and Voluntary Civil Commitment section of this page). Does it mean a Defendant is committed to a hospital forever? No, but the lens through which a criminal Defendant is evaluated for those criteria is, in fact, much more scrutinizing than that which she might face from a Probate Court under Title 37. This is despite the fact that the law doesn't offer for such increased scrutiny in the criminal sphere, but doctors are human beings, and it is often difficult for them to look past the underlying offense, especially if it is a violent one.


The Insanity Defense is always a tough hurdle to get past (and has a number of important exceptions), and even a successful defense in that regard may result in consequences not desirable to a client given alternatives. But, it is a useful and, in some cases, critical tool for us as defense attorneys to have at our disposal when necessary.

Involuntary and Voluntary Civil Commitment

When an individual facing a crisis of mental health challenges has not necessarily committed a crime, but who's symptoms are such that immediate inpatient psychiatric care may be necessary, Georgia Code lays out a structure for that individual's treatment and the rights he retains while hospitalized under Chapter 3 of Title 37. Frankly, these laws are archaic, convoluted, and heavily weighted towards giving the hospitals leverage, in reality, though the language of many of them at least make an effort to respect the individual rights of those committed patients. This summary is a basic attempt to crystallize the gist of the procedures and rights of the patient, and is by no means exhaustive (as the statutes themselves are exhausting). Of course, I am covering Georgia law here, but the structures are somewhat similar state-to-state, with greater deviations likely the farther from the Southeast you go.

The exact statutory definition of what qualifies for involuntary inpatient hospitalization can be found in O.C.G.A. §37-3-1, and it is that the individual must be (1) an imminent threat (2) of substantial harm to himself or others (3) as demonstrated by recent overt acts of violence or threats of such acts. These are the elements a psychiatric professional, law enforcement, or a judge must confirm before a person can be hospitalized against his or her will. In other words, the danger must be immediate, more than basic concern for a person's health, and cannot be based on simply historical acts; the evidence of such a danger must be recent in time. You cannot, under really any circumstance in the civil realm, have a person committed against his or her will based solely on the idea that they need psychiatric assistance or perhaps that they've stopped their medications and are symptomatic and there is a concern for future dangerousness. [NOTE: There is another prong that qualifies under this definition for those who are so incapacitated that they simply cannot perform the basic tasks needed to avoid serious harm or death, but that prong is very rarely utilized and would be reserved for advanced stages of dementia or the like.]

The statutory paths for involuntary commitment are, in most cases, (1) commitment recommendation from a psychiatric professional (called a Form 1013) which is then typically carried out by law enforcement of some kind or hospital professionals depending on where the finding occurs; these 1013s can sometimes come from professionals who are a part of a responding mobile crisis team, who would have law enforcement professionals qualified to carry them out if necessary; (2) interaction with a law enforcement officer who, while witnessing what would otherwise be an arrestable offense, notes that the person is in need of involuntary care and may transport the person to a hospital rather than a jail; or (3) a probate court judge issues an Order to Apprehend based upon the affidavits of two lay individuals or those of a psychiatric professional, in which case the Sheriff's Department in that jurisdiction is tasked with finding and transporting the individual to an ER or crisis stabilization unit ("CSU": think Peachford Hospital, Anchor, Summit Ridge, etc.).

Once a person is committed on a 1013, whether to an ER or a CSU, that facility has 48 hours to decide whether he continues to need involuntary care, in which case a Form 1014 (Certificate Authorizing Transfer to CSU) is almost always issued by a doctor. In the case of initial ER admission, that facility then has 24 hours to transfer a person to a CSU, where that receiving CSU can then hold a person for an additional five days without court approval. [Note: The 48 + 24 hours of the 1013 to initial 1014 transfer period is where so many of these facilities get the incredibly misleading "72 hour rule." There is no de facto 72 hour rule in Georgia, nor must facilities hold a person who supposedly meets criteria for 72 hours. To the contrary, if the person does not meet criteria for involuntary inpatient treatment, the law would require his immediate release. In reality, it is safe to say that the hospitals and CSUs are granted, more or less, a week to hold a person without the court getting in their hair. One might also note they are given the weekends and holidays as freebie days--they don't count toward the statutory timelines. Hmmm....]

If a person continues to met criteria after the five days of the 1014, the facility must then petition the Probate Court for a hearing regarding extended commitment, administratively known as a Form 1021. These are uncommonly issued. If the facility does petition, then they may continue to hold the person until such hearing takes place, which by law is no sooner than seven days, and no later than twelve from the date of the petition (O.C.G.A. §37-3-81). After all of that, if the Court finds a person meets criteria for extended commitment, they may Order such for up to six months before another review must be had (this does not happen comparatively often). The Court may also Order involuntary outpatient treatment if the Court feels that a person does not meet the strict criteria for inpatient, but for a lack of monitored care would inevitably lead to the person falling back into that 1013 box. Again, such an Order is rarely utilized by the Courts, nor do the statutes regarding involuntary outpatient treatment provide the teeth to make it particularly useful, in the absence of a creative Judge.

There are a variety of rights and mechanisms by which the Court may be petitioned for grievances or release, but they are rarely, if ever, utilized, nor do the hospitals and CSUs ever (in my experience) review those rights with patients. They are rights all the same, though, and it is important to know them. For instance, upon admission to a CSU, the hospital must designate two representatives on the outside to receive information (O.C.G.A. §37-3-147), and they must use diligent efforts to find said persons if the patient can't help. The patient gets to select one, but if he or she is unable, the hospital must choose both, and there are various notice requirements the hospital must honor with respect to these representatives (sadly, impending discharge status is explicitly not one of them). They are also entitled to an attorney. Patients may request transfer to a State facility if in a private one and vice versa (O.C.G.A. §37-3-100(b) and (e)), and that request generally must be granted. The same goes for transfer to another private facility of the patient's choosing (O.C.G.A. §37-3-65), so long as the person covers the costs of transport and is comfortable with the fact that the statutory timelines reset for the new facility (of course!). Administratively, this is called a Form 1007. A patient may also request transfer from involuntary status to voluntary status (Form 1012) or request full discharge if already in voluntary status (Form 1010). A person may also petition the Court for release via a Habeas Corpus petition (O.C.G.A. §37-3-148), administratively known as a Form 1015. If there is a Court in the history of Georgia jurisprudence who has taken up a Habeas petition under this legal mechanism, I'm unaware of it. Frankly, the statutes don't even clearly direct us to which court would be the Court of competent jurisdiction would be in this instance, as Superior Courts are typically the venue for Habeas petitions, but the Probate system is given the broadest authority over commitment procedures under Title 37. Go figure, but one would assume the Probate Court in the County in which the patient is committed would be the place to lodge such a petition (this excludes cases of commitment pursuant to a criminal case, in which circumstance the criminal court that originally ordered the civil commitment is the competent court for a petition).

Importantly for parents of minor children admitted voluntarily, the child MUST be released upon written request of the parent (O.C.G.A. §37-3-90(e)). Note, the status of the child must be voluntary, so either he or she was initially admitted as such and his status never changed, or he signed the form requesting voluntary status upon involuntary admission (the Form 1012 that is encouraged by statute upon involuntary admission). Involuntary status puts a minor child in essentially the same boat as an adult, but sometimes lodging an AMA (Against Medical Advice) form can speed along discharge in those cases, it's just not required by the statutes.

Finally, a brief few notes on voluntary commitment. The law regarding voluntary commitment is only slightly different from that of involuntary. In fact, the term voluntary is incredibly deceptive: the law does not allow for a voluntary patient to simply walk out of the hospital whenever he or she wants like you might expect the word "voluntary" implies. To the contrary, one must petition (via the aforementioned Form 1010) for full discharge, and only then is a facility given a period of time (minimum 24 hours) to decide whether the person meets criteria for involuntary commitment before allowing discharge. In addition, a voluntary patient is not subject to the same statutory timelines as an involuntary patient is; in other words, a voluntary patient, absent any request to the contrary, theoretically has no statutorily defined deadline for release. Couple that with statutory mandates for the CSUs to encourage involuntary patients to sign forms changing their status to voluntary (O.C.G.A. §37-3-64(b)), and you start to understand why I am so skeptical of the statutes under Chapter 3 of Title 37 and whether they are truly in the best interest of the patient, or whether they are meant to maximize the profit-making abilities of these VERY profitable hospitals.

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