Friday, April 27, 2007

Student Note on Commitment of People with Mental Retardation

New on Westlaw: Laura W. Harper, Comment, Involuntary Commitment of People with Mental Retardation: Ensuring All of Georgia's Citizens Receive Procedural Due Process, 58 Mercer L. Rev. 711 (2007). The introduction:

In the state of Georgia there are approximately three thousand citizens who are confined to segregated living institutions because of their disabilities. Many of these individuals are placed in institutions involuntarily through legal proceedings. Some of these individuals have mental retardation, a condition that occurs during a person's development and results in below normal intellectual functioning. Many disability advocates argue that segregation and institutionalization of people with mental retardation is not needed, although all do not agree. Despite strong advocacy for the rights of people with disabilities, many continue to be institutionalized, often because their families can find no other path of treatment for their loved ones.

This Comment focuses on the procedures used in Georgia to continue the habilitation of people with mental retardation. In order to commit someone initially, Georgia's statute requires an adversarial hearing with ample procedural protections. However, once the initial order for habilitation is signed, the level of procedural protections for Georgia's citizens drops dramatically. This Comment first analyzes the procedures currently in place in Georgia. Next, it analyzes what procedural due process might require in order for a state to continue its habilitation of a person with mental retardation. Because there has been no United States Supreme Court decision on point, this Comment focuses on past procedural due process decisions to outline the possible requirements. It also analyzes the procedures that other states utilize for continued habilitation, as the Supreme Court currently considers what procedures are used by states when determining how much procedure is due.

After analyzing what procedural due process requires, this Comment discusses how those constitutional rights can be waived, including what constitutes adequate notice of rights. After outlining the relevant law, this Comment analyzes Georgia's procedures to determine (1) whether they comply with the proposed requirements of procedural due process and (2) whether the statute provides adequate notice so that failure to exercise those rights results in waiver. Finally, this Comment suggests possible amendments to Georgia's procedures so that committed persons receive all of the protections they are entitled to under the law and so that no person is needlessly confined.

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