Right to counsel

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Legislation, Involuntary Medical Treatment (incomplete)


The same code provisions that cover involuntary inpatient treatment for mental health appear to also cover involuntary outpatient treatment:

If the court determines that probable cause does not exist for involuntary inpatient commitment, but finds that an individual meets the criteria for outpatient treatment over objection, the court may order that an individual be placed on outpatient treatment over objection, pursuant to § 5013 of this title, and the next hearing shall be scheduled for 3 months after the probable cause hearing. The court may only place an individual on outpatient treatment over objection at a probable cause hearing if the issue has been appropriately noticed.


Del. Code Ann. tit. 16, § 5009(c) (emphasis added).  Per Del. Code Ann. tit. 16, § 5007(3), indigent individuals subject to involuntary proceedings have the right "[t]o be represented by counsel at all judicial proceedings, such counsel to be court-appointed if the individual cannot afford to retain counsel..."  And "[u]pon the filing of the probable cause complaint the court shall forthwith:  (1) Schedule a probable cause hearing to determine whether probable cause exists for the involuntary patient's confinement, and, where necessary, appoint counsel to represent the involuntary patient." Del. Code Ann. tit. 16, § 5009(a).  

As to substance use

Upon "written certification by a physician that the individual is a person in need of treatment as provided for in this chapter[,]" a person may be involuntary admitted for substance abuse treatment on either an inpatient or outpatient basis. Del. Code Ann. tit. 16, § 2211.  A right to court-appointed counsel attaches for indigent respondents upon the filing of the petition per Del. Code Ann. tit. 16, § 2214(1). See also Del. Code Ann. tit. 16, § 2215 (stating that "An individual whom the staff of a facility has determined to be a person in need of treatment will be provided: ... (3) Representation by counsel at all judicial proceedings, such counsel to be court-appointed if the involuntary patient cannot afford to retain counsel").


As to minors

Del. Code Ann. tit. 16, § 5025(a) provides, "Except as otherwise provided, the provisions of this chapter pertaining to the care and release of persons age 18 and older shall apply with the same force and effect to persons under 18 years of age admitted to a designated psychiatric treatment facility or hospital..."

Accordingly, the same procedures as discussed above that apply to adults should apply to minors.  However, paragraph (b) of the same section specifies that is is the child's parent or legal guardian that has the right to counsel:  "All substantive and procedural rights provided to individuals pursuant to this chapter shall automatically transfer to the individual's parents or legal guardian if the individual is a minor, unless specifically stated otherwise in this chapter."

Appointment of Counsel: categorical Qualified: no