Right to counsel

Key_development Question_mark

Legislation, Civil Commitment

Indigent adult patients and proposed patients have the right to counsel in involuntary outpatient treatment matters, as do certain minors.

 

Generally

 

Under Ga. Code. Ann. § 37-3-81.1, the court may order inpatient or outpatient mental health-related treatment on an involuntary basis.  There is a right to counsel for indigent respondents in dentention, civil commitment proceedings, and appeals related to these matters. See Ga. Code Ann. §§ 37-3-44(a) (notice of right to counsel immediately upon arrival at the emergency receiving facility); 37-3-81(a)(2) (related to detention of mental health patient beyond evaluation period); 37-3-83 (related to continued involuntary hospitalization); 37-3-92(a) (related to hearings regarding noncompliance with outpatient treatment plan, which may result in custody, hospitalization, or detention for evaluation and treatment); 37-3-150 (appeal rights of mental health patients); 37-4-110 (appeal rights of developmentally disabled persons). 

 

As to substance dependency 

 

There is also a right to counsel in involuntary commitment matters sought due to chemical dependency. See Ga. Code. Ann. §§ 37-7-44 (upon arrival at emergency receiving facility); 37-7-62 (hearings on petitions for court-ordered evaluations); 37-7-81 (related to detention of patient beyond evaluation period).


As to minors


"Voluntary" treatment where consent given by parent or guardian

Seemingly no procedure to object.


A parent or guardian may consent on behalf of an individual who is younger than 18 years of age as to both mental health-related, Ga. Code. Ann. § 37-3-20(a), and substance dependency-related treatment, § 37-7-20, and must consent on behalf of a minor if inpatient treatment is sought.  


Although patients 12 years of age or older may consent on their own behalf, at least to initial observation and diagnosis at a facility, id., it does not appear that minors whose parent or guardian consented to their admission or treatment have the ability to object (a process to which the right to counsel may attach), as Sections 37-3-22 and 37-7-22 state:


A voluntary patient, other than a minor child for whom admission has been sought by his parents or guardian, who has admitted himself to a facility ... or any voluntary patient's personal representative, legal guardian, parent, spouse, attorney, or adult next of kin may request such patient's discharge in writing at any time after his admission.


(emphasis added).


Where treatment is sought in Child in Need of Services case

Right to counsel applies.


The involuntary mental health-related commitment or treatment of a child can be sought as part of a Child in Need of Services (CHINS) case. See Ga. Code Ann. § 15-11-451(d) ("If, during the comprehensive services plan hearing or any subsequent review hearing, the court determines that a child is mentally ill or developmentally disabled and meets the requirements for civil commitment pursuant to Chapters 3 and 4 of Title 37, such child may be committed to an appropriate treatment setting."). 


A child subject to a CHINS matter has the right to counsel, and the right extends to appeals. Ga. Code Ann. § 15-11-402(a), (e).

Appointment of Counsel: categorical Qualified: no