Right to counsel

Respondents have the right to counsel in mental health- and substance use-related civil commitments, and the court may appoint counsel for some petitioners in substance use-related commitments.

 

Commitment due to "serious mental impairment" 

Initial applications for involuntary placement

Iowa provides a civil right to counsel at public expense for individuals subject to involuntary hospitalization proceedings due to alleged mental illness.  Applications for involuntary placement orders may be filed by "any interested person." Iowa Code § 229.6(1).  As to the right to counsel, section 229.8 states:

 

As soon as practicable after the filing of an application [for an involuntary placement order] pursuant to section 229.6, the court shall do all of the following:

 

1. Determine whether the respondent has an attorney who is able and willing to represent the respondent in the hospitalization proceeding, and if not, whether the respondent is financially able to employ an attorney and capable of meaningfully assisting in selecting one. In accordance with those determinations, the court shall if necessary allow the respondent to select, or shall assign to the respondent, an attorney. ...

 

See also Iowa Ct. R. 12.3(3)(a) (respondent "shall" be informed of "immediate right to counsel, at county expense if necessary"). 

 

Subsequent placement hearings

If the respondent is ordered involuntarily placed and counsel "has withdrawn pursuant to section 229.19," counsel will be reappointed later if the respondent requests a "hearing to determine if the order for placement or transfer is appropriate" under Iowa Code § 229.14A(5)(c).

 

Commitment due to "substance use disorders"

Counsel for respondent: Initial application and recommitment

Applications for involuntary placement due to a "substance use disorder" can be sought under Chapter 229, discussed supra. See Iowa Code § 229.6 (an application shall "[s]tate the applicant's belief that the respondent is a person who presents a danger to self or others and lacks judgmental capacity due to either of the following: (1) A substance use disorder as defined in section 125.2. (2) A serious mental impairment as defined in section 229.1.").  Accordingly, the right to counsel in section 229.8 would apply. 

 

But there is also a separate section of the code under which involuntary commitment for substance use disorders can be sought, found within the Title governing Public Health matters. See Iowa Code § 125.74 to 125.94.  The language related to the right to counsel in this section is similar to that found in § 229.8, providing for the appointment of counsel for the respondent:

 

As soon as practical after the filing of an application pursuant to section 125.75, the court shall:

 

1. Determine whether the respondent has an attorney who is able and willing to represent the respondent in the commitment proceeding, and if not, whether the respondent is financially able to employ an attorney and capable of meaningfully assisting in selecting an attorney. In accordance with those determinations, the court shall allow the respondent to select an attorney or shall assign an attorney to the respondent. ...

Iowa Code § 125.78; see also Iowa Ct. R. 13.3(3) (respondent to involuntary commitment petition for chronic substance abuse shall be informed of “immediate right to counsel at public expense if necessary”).  Commitment may be made for up to 30 days.  If an application for recommitment is sought, for additional periods of up to 90 days, the procedures of section 125.75 apply.  As such, the right to counsel attaches to such matters as well. Iowa Code § 125.85.

 

Counsel for petitioner: Initial application

The law also provides for the discretionary appointment of counsel for indigent petitioners in substance use disorder commitment matters: 

If the application includes a request for a court-appointed attorney for the applicant and the court is satisfied that a court-appointed attorney is necessary to assist the applicant in a meaningful presentation of the evidence, and that the applicant is financially unable to employ an attorney, the court shall appoint an attorney to represent the applicant...

Iowa Code § 125.78(2).

 

Commitment of minors

Per § 229.6A, the juvenile court has original exclusive jurisdiction over minors subject to involuntary commitment matters, but the same procedures as are applicable to adults apply, including the right to counsel in matters related to applications for involuntary placement orders (Iowa Code § 229.8), which may be filed by "any interested person," and subsequent placement proceedings (Iowa Code § 229.14A).

As a statutory matter, the minor's indigent parents are not entitled to counsel, however.  This is true even if the parents did not initiate the petition for commitment. Matter of R.L.D., 456 N.W.2d 919, 920-21 (Iowa 1990) (but declining to rule on constitutional question, as it was not raised in trial court).

 

Additionally, a minor objecting to their parent, guardian, or custodian's application to voluntarily hospitalize them has the right to counsel under Iowa Code § 229.2.  Where a parent, guardian, or custodian makes an application to voluntarily hospitalize their child, "the chief medical officer shall provide separate prescreening interviews and consultations with the parent, guardian, or custodian and the minor to assess the family environment and the appropriateness of the application for admission." Id. at (1)(b)(1).  During the interview, the officer must inform the minor of their right to object to the admission, and "[i]f the chief medical officer of the hospital to which application is made determines that the admission is appropriate but the minor objects to the admission, the parent, guardian, or custodian must petition the juvenile court for approval of the admission before the minor is actually admitted." Id. at (1)(b)(2).  If the minor is unrepresented, the court shall appoint counsel "[a]s soon as is practicable after the filing of a petition for juvenile court approval of the admission of the minor." Id. at (1)(b)(3).

Commitment procedures for individuals with intellectual disabilities repealed in 2013

Previously, there was a procedure for the adjudication of "mental retardation" and attendant civil commitment. See Iowa Code § 222.16 to 222.32.  The alleged disabled person was provided with the right to counsel under Iowa Code § 222.22 ("The district court shall assign counsel for the person who is alleged to have an intellectual disability."). 

 

However, these provisions were repealed in 2013. See Acts 2013 (85 G.A.) ch. 130, S.F. 406, §§ 34, 35, eff. July 1, 2014.  A summary of the bill provided by the Iowa General Assembly Legislative Services Agency states, "The Act does not affect existing Iowa Code provisions allowing such services to be provided on a voluntary basis and requiring guardianships for a person with an intellectual disability to be initiated and conducted under Iowa Code chapter 633, the Iowa Probate Code."