Right to counsel

Assisted community treatment of adults and juveniles 

"Assisted community treatment" may be sought for mental health- or substance use-related issues and includes the following:

...medication specifically authorized by court order; individual or group therapy; day or partial day programming activities; services and training, including educational and vocational activities; supervision of living arrangements; and any other services prescribed to either alleviate the person's disorder or disability, maintain or maximize semi-independent functioning, or prevent further deterioration that may reasonably be predicted to result in the need for hospitalization or more intensive or restrictive levels of care in the community or incarceration for criminal behavior.

Indigent persons subject to assisted community treatment petitions are entitled to an attorney under the public defender code. Haw. Rev. Stat. § 802-1(a) ["Any indigent person who is: (3) The subject of a petition for assisted community treatment under chapter 334 ... shall be entitled to be represented by a public defender."]. 

Assisted community treatment matters are brought in the family court, and the general provisions governing family court matters also apparently provide for a right to counsel. See Haw. Rev. Stat. § 571-87(a) ("When it appears to a judge that a person requesting the appointment of counsel satisfies the requirements of chapter 802 for determination of indigency, ... the judge shall appoint counsel...").  Both sections 802-1 and 571-87(a) should also apply in proceedings for the assisted community treatment of juveniles. See Haw. Rev. Stat. § 571-11(7) (stating that the family court also has "exclusive original jurisdiction in proceedings" "[f]or the treatment or commitment of a mentally defective or mentally ill child, or a child with an intellectual disability").  Nothing in the part specific to assisted community treatment indicates that such matters are limited to adults 18 years of age or older.    

Further, if the individual does not have a guardian, they are additionally entitled to a guardian ad litem (GAL), appointed to represent their best interests, who may (or may not) be an attorney. Haw. Rev. Stat. § 334-123.5.  Though neither the assisted community treatment part nor the part governing the mental health chapter generally define "guardian ad litem" [see Haw. Rev. Stat. §§ 334-122 and 334-1], a related section on appeal and review of admissions to psychiatric facilities states that "[t]he guardian ad litem may be a member of the bar of the court or any other responsible person." Haw. Rev. Stat. § 334-82.  The general statutes governing family law actions also suggest that the GAL may be an attorney. See Haw. Rev. Stat. § 571-87(a) ("When it appears to a judge that a person requesting the appointment of counsel satisfies the requirements of chapter 802 for determination of indigency, ... or that a person requires appointment of a guardian ad litem, the judge shall appoint counsel or a guardian ad litem to represent the person at all stages of the proceedings, including appeal, if any.").  

Amendments to assisted community treatment provisions

Previously, the right to representation by the public defender was found in both the public defender code and in the assisted community treatment part.  However, in 2021, the legislature passed HB 345, which removed all references to the public defender and court-appointed counsel from the assisted community treatment part.  HB 345 also added the right to a GAL under Haw. Rev. Stat. § 334-123.5.  After the amendments, the notice must simply inform them that, unless they have a guardian, a guardian ad litem has been assigned to represent their best interests and that they are "entitled to the assistance of an attorney" and "may contact their own attorney." Haw. Rev. Stat. § 334-125(b)(3)-(4).  

Although these changes may at first seem to suggest that the legislature intended to remove the right to representation by the public defender by enacting HB 345, replacing it with the right to a GAL, and that the failure to remove the right to counsel language from Haw. Rev. Stat. § 802-1(a)(3) was an oversight, HB 345 did in fact amend § 802-1 and left untouched the language at paragraph (a)(3).  Thus, the better interpretation may be that the legislature was simply attempting to reduce the number of code locations in which the right to counsel in such proceedings is found. 

Substance abuse-specific provisions related to involuntary outpatient treatment of adults

Although assisted community treatment petitions may encompass substance abuse in addition to mental health-related matters, there is a separate part of the code dedicated to substance use, titled "Civil Commitment for Substance Abuse Outpatient Treatment," Haw. Rev. Stat. § 334-141 et seq.  This part defines "Outpatient Treatment" as "any substance abuse treatment provided through individual or group therapy, day or partial day programs, and intensive day treatment and which does not require the individual to reside on a twenty-four-hour basis in the facility for more than three days to benefit from the treatment program." § 334-141.  

Unlike assisted community treatment matters, these types of proceedings are limited to adults, since the part defines "Respondent" as "the individual who is eighteen years of age or older who is the subject of the petition for a court order to require the individual to enter into an outpatient treatment program." Id.

Though no right to counsel or to right to a GAL was found in the part governing civil commitment for substance abuse outpatient treatment, see Haw. Rev. Stat. § 334-141, et seq., such petitions are heard in family court. See § 334-142 (providing "Any family member may petition the family court for an order requiring a respondent to enter into an outpatient treatment program for substance abuse...").  Accordingly, Haw. Rev. Stat. § 571-87(a) presumably applies. ("When it appears to a judge that a person requesting the appointment of counsel satisfies the requirements of chapter 802 for determination of indigency, ... the judge shall appoint counsel...").