MD high court: right to counsel for patients facing forced medication

In Mercer v. Thomas B. Finan Ctr., the Maryland Court of Appeals interpreted Md. Code Ann. Health-Gen. § 10-708(i)(4)(ii) to hold that when an involuntarily committed patient appeals a clinical review panel's decision to forcibly medicate the patient, the patient has a right to counsel upon request and that the right cannot be waived absent "verification" that the patient has "knowingly and voluntarily" waived the right to counsel.

In the case, the patient had checked a box on a form indicating he waived counsel, but on the day of the hearing requested counsel.  The administrative law judge interpreted this as a request for a continuance, which was denied on the grounds that the patient had waived the right to counsel and then waited too long to change his mind.  The Court of Special Appeals held that § 10-708(i)(4)(ii) does provide a right to counsel upon request but that the request must be timely and the ALJ did not abuse their discretion in denying the day-of request in light of the prior waiver. 

The Court of Appeals held that the "right to request representation" language in § 10-708(i)(4)(ii) means the right to counsel upon request, as opposed to just a right to ask for a lawyer that can be denied, by in part noting that the right to a hearing is similarly phrased in the form of a request.  The Court then rejected the argument that the request for counsel must be made within 48 hours as is the case for requesting a hearing. 

The Court then determined the procedure for determining waiver.  Applying the Mathews v. Eldridge analysis, the Court determined the patient has a "significant' protected liberty interest, that the waiver form as designed was insufficient to advise the patient of what was being waived, and that the State had not shown there would be signfiicant cost in delaying the hearing.  It then observed that "Because an individual subject to forced medication under HG § 10-708(b)(2) is necessarily hospitalized involuntarily or committed for treatment by order of a court, determining that the waiver of the right to counsel is the product of the individual’s free will and that the individual has been advised of the nature of the right and the consequences of waiving the right is paramount."  It also rejected the State's contention that the patient rights advisor's advisement there would be no attorney at the hearing as the result of his checking the box on the form was sufficient, holding that "Advising a person that, as a result of checking a box or a line on a form, there would be no attorney at a hearing is not the equivalent of notification that the right to counsel exists upon request and that the right is being waived." 

However, the Court added that "We do not hold that an election on paperwork can never operate as a waiver of an individual’s right to request counsel under HG § 10-708. With proper advisements, it could."  It stated that the form could be "redrafted to effectively advise an individual of the right to request the assistance of counsel under HG § 10-708 and the consequences of electing not to do so, and to verify that a waiver or declination of the right is an individual’s knowing and voluntary choice."

The ruling was covered by the Maryland Daily Record.