concurring specially.
1. While agreeing with the majority opinion’s conclusion that all the defendants in this case are shielded from liability by the general doctrine of governmental immunity under Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878) (1980), I believe that this court’s recent decision in Jackson v. Miller, 176 Ga. App. 220 (335 SE2d 438) (1985), represents an obstacle that must first be hurdled or eliminated. In Jackson v. Miller, this court held that the defense of governmental immunity is not available to a state-employed physician who has been sued individually in a wrongful death action over the alleged negligent treatment of the plaintiff’s child at the state facility. In so holding, this court emphasized (1) that the defendant doctor had not acted in an administrative matter; (2) that the doctor’s alleged negligent treatment of the child could not “reasonably be considered that of an agent of the government acting in his official capacity”; and (3) that the doctor’s primary duty was a private one to his patient rather than a public one to the state. Id. at 220-221. That analysis results in an impermissible limitation of the Supreme Court’s rule delineated in Hennessy v. Webb, supra, and I believe that Jackson v. Miller must be overruled.
Hennessy v. Webb makes available the defense of governmental immunity to a public employee, even though he is sued individually, for discretionary acts within his official capacity, unless the public employee acted wilfully, wantonly, or beyond the scope of his author*380ity. Although the defendant in that case held an administrative position as principal of a school, nothing in the decision limits application of that proposition to administrative officers. Where the government assumes the function of providing medical services to the public, the personnel employed by the state to fulfil that function act as agents of the state. That protective agency relationship evaporates only when the employee’s official capacity does not involve acts of discretion or when the employee acts wilfully, wantonly, or beyond the scope of his authority, and it does not matter what position is held by the public employee. Specifically, where diagnosis and planning treatment, essentially discretionary acts, are precisely the duties assigned to a state physician, mere negligence in the performance of that duty does not remove the act from the realm of his official capacity.
The primary duty of. a state-employed physician is always public, because the physician acts for the state, and this court cannot ignore that legal relationship in characterizing the physician’s duty. Under Hennessy v. Webb, a state physician’s personal liability for discretionary acts may result from a breach of that public duty, i.e., an act that is wilful, wanton, or beyond the scope of his authority; it is not because the physician’s primary duty is owed to whichever patient he may treat, as held in Jackson v. Miller, supra. It follows that, contrary to the holding in Jackson v. Miller, the defense of governmental immunity is available to state physicians even in malpractice actions, absent a breach of that public duty. Since Jackson v. Miller ignores the proper analysis for determining the availability of this defense, it should be overruled.
In the instant case, all four defendants clearly were protected by governmental immunity. The decisions involved with the plan of treatment for and the release of Reed certainly were acts of discretion, within the scope of the defendants’ official capacities and authority, and were obviously not wilful or wanton. The trial court correctly granted summary judgment for the defendants.
2. In any event, the uncontradicted evidence demanded a finding that none of the defendants had been negligent. OCGA § 17-7-131 (a) in effect at the time pertinent to this case provided that in all criminal trials where an accused is adjudicated not guilty by reason of insanity at the time of the commission of the crime, the trial court was to commit the accused to a state mental hospital for a period of not less than 30 days in order to inquire into the sanity of the accused at the time of the acquittal. That section further provided that “[a] person committed to the Department of Human Resources pursuant to this Code section shall not be released from confinement unless and until, after notice and hearing, the court which committed him finds and determines that the person does not meet the criteria for civil commitment under Chapter 3 or 4 of Title 37.” Under Chapter 3 of *381Title 37, a person meets the criteria for civil commitment if he is mentally ill and “presents a substantial risk of imminent harm to himself or others, as manifested by either recent overt acts or recent expressed threats of violence which present a probability of physical injury to himself or to other persons, or ... is so unable to care for his own physical health and safety as to create an imminently life-endangering crisis.” OCGA § 37-3-1 (12). (Chapter 4 of Title 37 concerns mental retardation and is inapplicable here.) Moses v. State, 167 Ga. App. 556 (307 SE2d 35) (1983).
An application for release of the committed person may be filed by either the person himself or the superintendent of the institution in which the person is confined. OCGA § 17-7-131 (b) (now OCGA § 17-7-131 (f)). This statutory treatment of a person involuntarily committed because of an adjudication of not guilty by reason of insanity allowed for only two possibilities upon such an application for release, i.e., release of the person upon a finding that he no longer met the criteria for civil commitment, or continued involuntary commitment upon the opposite finding. See “Commitment & Release of Persons Found Not Guilty by Reason of Insanity: A Georgia Perspective,” 15 Ga. L. Rev. 1065 (1981).
The validity of the appellant’s asserted cause of action strictly depended upon Reed’s having been released at a time when he still met the criteria for civil commitment. The evidence of record in this case strongly demonstrated that Reed in fact no longer presented a substantial risk of imminent harm to himself or others at the time of his recommended release from West Georgia Regional Hospital. In the course of his 6-month commitment at the hospital, during which he was observed on a daily basis, Reed had not manifested any acts or threats of violence. For the last 4 months of his confinement, medications were unnecessary to stabilize any psychosis. A thorough regimen of tests consistently produced negative results for active mental illness. Reed’s mother acknowledged that at the time of Reed’s release, his behavior was good and remained so for the next 5 or 6 months. That Reed presented no risk of imminent harm at the time of his release was further demonstrated by the fact that for almost 11 months, he lived a quiet and peaceful life.
The appellant’s expert witness attempted to rebut the defendant’s evidence by contending that Reed’s present dangerousness was shown by his psychiatric history and criminal record of “decomposition from accepted behavior following prior releases from psychiatric hospitals.” However, that indefinite possibility of a recurrence of psychosis at some unknown point in the future did not refute the uncontroverted evidence that Reed no longer met the civil commitment criteria requiring a substantial risk of imminent harm; that information alone provided an insufficient basis for reasonably anticipating immi*382nent harm.
The appellant also contends that the defendants associated with West Georgia Regional Hospital were negligent in not recommending that Reed’s release be conditioned upon his seeking continued treatment on an out-patient basis at the adult mental health clinic, and that Paul Crofford with the mental health clinic was negligent in not coordinating out-patient treatment for Reed following the latter’s release. There was no legal authority, however, by which such a conditional release could be ordered. The current OCGA § 17-7-131 (h) does provide for probation conditioned upon out-patient psychiatric treatment for a defendant who is found guilty but mentally ill at the time of the felony. OCGA § 37-3-81 (c), concerning regular involuntary civil commitment for psychiatric evaluation, also authorizes a court to order placement on an out-patient treatment program, rather than hospitalization, if such an arrangement controls the danger presented by that person. However, as discussed above, the statute in effect at the time of Reed’s release authorized but two alternatives for this situation: continued hospitalization or release.
In any event, it was undisputed that the defendants at West Georgia Regional Hospital did recommend continued psychiatric treatment for Reed as an out-patient at the mental health clinic, and a referral and initial appointment for this service actually were made at the time of Reed’s release. Reed refused that service after that one appointment, and the defendants were without authority following Reed’s release to force such out-patient treatment upon him.
In summary, the evidence of record demanded the finding that Reed no longer met the criteria for civil commitment at the time of his release; ipso facto, the recommendation of the West Georgia Regional defendants that Reed be released (as well as the precedent treatment of Reed) could not be held negligent. Similarly, insofar as no legal authority existed for mandatory out-patient treatment as a condition of Reed’s release, the failure to recommend or coordinate such could not constitute negligence. Accordingly, summary judgment for the West Georgia Regional defendants (and Crofford) was appropriate.
Additionally, it must be emphasized that the ultimate decision to release Reed was that of the superior court, and not that of the staff of West Georgia Regional Hospital. OCGA § 17-7-131; see Clark v. State, 245 Ga. 629 (266 SE2d 466) (1980); Dubose v. State, 148 Ga. App. 9 (251 SE2d 15) (1978). In deciding whether an involuntarily committed defendant should be released because he no longer meets the civil commitment criteria, the superior court is not bound to accept the recommendation of the treating psychiatrist(s) or psychologist^). Moses v. State, supra; Dubose v. State, supra. In short, this writer is unpersuaded by the appellant’s attempt to impose liability *383upon the defendants in this case, where the decision to release Reed (notwithstanding its apparent acceptance of the recommendation to release) was an independent judicial determination by the committing court.
I am authorized to state that Presiding Judge Birdsong joins in this special concurrence.