Opinion
40908.
DECIDED OCTOBER 23, 1964.
Petition to set aside adjudication of insanity. Baldwin Superior Court. Before Judge Carpenter.
Frank Fuller, Freeman R. Hardisty, for plaintiff in error.
Harvey Rhodes, E. C. Harvey, Jr., Leonard W. Rhodes, W. S. Edwards, contra.
The petition seeking to set aside a judgment of the court of ordinary was meritorious, and it was error to dismiss it on oral motion.
DECIDED OCTOBER 23, 1964.
On April 22, 1963, Ted M. Adkins filed his petition in the Court of Ordinary of Baldwin County, seeking to have a commission appointed to determine whether or not Reathel E. Geary should be committed to the Milledgeville State Hospital. On that date, Dorothy M. Geary, the wife of R. E. Geary, and his only adult relative in Georgia, signed an acknowledgment of due and legal service of the petition, waived all further notice and service and consented that the commission therein prayed for be issued immediately.
The Ordinary of Baldwin County, Georgia, thereupon appointed a guardian ad litem for Geary and issued the statutory commission to a panel of two doctors and an attorney to determine if Geary was a fit subject for committal, as provided for under Code Ann. § 49-604. The commission convened, heard evidence, and on the same day, April 22, 1963, filed its return in which it found R. E. Geary, "to be mentally ill and fit subject for the Milledgeville State Hospital." Pursuant to the findings of the commission, the court of ordinary issued an order, dated April 22, 1963, in which it adjudged Geary to be "mentally ill or person of unsound mind" and committed him to the Milledgeville State Hospital. No appeal was taken from these proceedings.
On April 2, 1964, Geary filed a petition in the Court of Ordinary of Baldwin County in which he asserted that the judgment of April 22, 1963, committing him to Milledgeville State Hospital, was null and void and prayed that it be vacated and set aside. Geary in his petition alleged that on April 19, 1963, he was a voluntary patient at the Milledgeville State Hospital under the provisions of the Mental Health Act of 1960 (Ga. L. 1960, p. 837 et seq.; Code Ann. Ch. 88-16) and specifically under the provisions of Code Ann. § 88-1602; that on said date, the petitioner notified in writing Dr. I. H. MacKinnon, the Superintendent of the Milledgeville State Hospital, that he wished to leave and be released from the hospital, said notice being made pursuant to Code Ann. § 88-1604; and that in response thereto he was told by an attendant of the hospital that he would be dismissed and released as a patient on Monday, April 22, 1963. The petition further alleged that on the morning of April 22, 1963, he was not dismissed as a voluntary patient in accordance with his written request and promised release, "but was falsely arrested, falsely imprisoned and forcibly taken to the Court of Ordinary of Baldwin County, Georgia, and there, without prior notice to him or opportunity to secure counsel and prepare a defense, he was tried by the said court and a purported lunacy commission, found by the commission to be a person `mentally ill', and thereupon adjudicated to be a person `mentally ill or of unsound mind' and involuntarily committed to Milledgeville State Hospital by the order of the court in violation of the laws of Georgia and his constitutional rights."
The defendants, Ted M. Adkins and Mrs. Dorothy Geary, filed an oral motion in the nature of a general demurrer to dismiss the petition which was sustained. Geary then appealed to the Superior Court of Baldwin County, where a like motion to dismiss his petition was filed by the defendants. The Superior Court of Baldwin County sustained this motion and dismissed the petition. The exception is to that judgment.
The allegations of the plaintiff's petition to vacate and set aside the judgment of the Court of Ordinary of Baldwin County of April 22, 1963, disclosed that on this date the plaintiff was a voluntary patient at Milledgeville State Hospital, having been so admitted pursuant to the provisions of Section 2 of the Mental Health Act of 1960 (Ga. L. 1960, pp. 837, 839; Code Ann. § 88-1602); and it is contended by the plaintiff that under the provision of Section 4 of said Act (Ga. L. 1960, pp. 837, 840; Code Ann. § 88-1604), the Court of Ordinary of Baldwin County was without jurisdiction to entertain the petition of Ted M. Adkins which sought his involuntary committal to the Milledgeville State Hospital. With this contention we agree.
Section 4 of the Act of 1960 (supra) provides as follows: "(a) A voluntary patient who requests his or her release in writing, or whose release is requested in writing by his or her legal guardian, parent, spouse, attorney, or adult next of kin shall be released forthwith upon receipt of such written request by the superintendent of the psychiatric hospital, except that . . .
"(3) If in his opinion the release of the patient would be unsafe for the patient or others the superintendent shall not approve the request for release and shall within three (3) days, Saturdays, Sundays and holidays excepted, after the receipt of the request for release file with the court of ordinary of the county of the patient's residence a certificate that in his opinion the release of the patient would be unsafe for the patient and others and state in the certification the facts upon which such opinion is based, a copy of such certification being given to the patient in person, and a copy being sent by registered mail to the patient's legal guardian or his attorney, parent, spouse, or adult next of kin, and the ordinary of the county of the patient's residence if the patient be a resident of the State of Georgia. Such certification shall be deemed to be a certificate of a physician and application for the involuntary hospitalization of the patient as provided for in subsection (a) of section 6 of this Act, and proceedings shall be had thereon as provided in the remaining subsections of section 6. The patient shall be confined at the same hospital or other psychiatric hospital as designated by the ordinary pending disposition of the proceedings as provided in section 6 hereof.
"(b) Notwithstanding any other provisions of this Act, proceedings for the involuntary hospitalization of an individual received by a psychiatric hospital as a voluntary patient shall not be commenced unless the release of the voluntary patient is requested as provided in subsection (a) hereof."
Clearly, under these provisions, a voluntary patient at the Milledgeville State Hospital, or any other psychiatric hospital included within the purview of the Act, can only be involuntarily hospitalized at such institution in proceedings brought in the court of ordinary of the county of the patient's legal residence upon application of the superintendent of the institution in which the patient is voluntarily hospitalized, and such proceedings can not be commenced by the superintendent until the voluntary patient has requested his release.
The allegations of the plaintiff's petition disclose that the proceedings sought to be set aside were not instituted in the court of ordinary of the county of his legal residence (DeKalb County, Ga.) by the superintendent of Milledgeville State Hospital but were besought in the Court of Ordinary of Baldwin County by one Ted M. Adkins; and under the provisions of the Act of 1960, supra, that court was without jurisdiction to order the involuntary hospitalization or committal of the plaintiff. The plaintiff's petition was thus meritorious and it was error for the superior court to dismiss it on oral motion of the defendants.
The contention of the defendants that the committal of the plaintiff by the Court of Ordinary of Baldwin County was authorized under the provisions of Code Ann. §§ 49-604, 49-605 is without merit. While Sec. 24 of the Act of 1960, supra, provided that Title 49 of the Code of Georgia was retained, the Act of 1960 unquestionably removed the power of the Court of Ordinary of Baldwin County to involuntarily commit to Milledgeville State Hospital a voluntary patient at said institution except in the manner expressly provided for in that Act.
The Mental Health Law of 1960, supra, and Code Ann. §§ 49-604, 49-605 have now been repealed and superseded by the Georgia Health Code of 1964 (Ga. L. 1964, pp. 499, 655, 658, 660).
Judgment reversed. Bell, P. J., and Eberhardt, J., concur.