Right to Counsel

If a person is unwilling or unable to consent to outpatient treatment, a court may order them to participate in such a program if they have a mental illness, including substance abuse, "to a degree that warrants treatment in a facility." Va. Code Ann. §§ 37.2-800 through 37.2-847.

In fact, prior to ordering involuntary admission pursuant to § 37.2-817, the court must consider whether mandatory outpatient treatment is appropriate as a less restrictive alternative. Va. Code Ann. § 37.2-817.01. Under the article, the person subject to the petition must be informed in writing of their right to retain private counsel or be represented by a court-appointed attorney. Va. Code Ann. § 37.2-814(D).  The right to counsel also attaches in subsequent proceedings such as when the court is considering extending the mandatory outpatient treatment, Va. Code Ann. § 37.2-817.1, and appeals. Va. Code Ann. § 37.2-821.

Individuals with intellectual disablities who are incapable of consenting to their admission into a training program also have a right to counsel in proceedings where their parent, guardian, or other responsible person files a petition to certify the person's eligibility for admission. Va. Code Ann. § 37.2-806.

Finally, incarcerated individuals are entitled to an attorney where subjected to medical/mental health treatment and the individual cannot consent. Va. Code Ann. § 53.1-133.04(B).