Right to counsel

Generally

 

Respondents have the right to counsel in mental health- and substance dependency-related involuntary outpatient treatment matters.  It is not clear whether these provisions also apply to minors.  There does not appear to be a procedure for involuntary medical treatment of persons with intellectually disabilities outside of the adult guardianship context.

 

As to mental health

 

Section 202A.0815 covers the "Criteria for court-ordered assisted outpatient treatment," which include a "serious mental illness" diagnosis and "a history of repeated nonadherence with mental health treatment".   Under the chapter, “Mentally ill person” is defined as "a person with substantially impaired capacity to use self-control, judgment, or discretion in the conduct of the person's affairs and social relations, associated with maladaptive behavior or recognized emotional symptoms where impaired capacity, maladaptive behavior, or emotional symptoms can be related to physiological, psychological, or social factors." Ky. Rev. Stat. Ann. § 202A.011(9).

 

There is a right to counsel for respondents in court-ordered assisted outpatient treatment proceedings due to mental illness.  Ky. Rev. Stat. Ann. § 202A.0819 states: 

 

(1) At a hearing and at all stages of a proceeding for court-ordered assisted outpatient treatment, the respondent shall be:

(a) Represented by counsel;
(b) Accompanied by a peer support specialist or other person in a support relationship, if requested by the respondent; and
(c) Afforded an opportunity to present evidence, call witnesses on his or her behalf, and cross-examine adverse witnesses.

 

As to substance dependency

 

Section 222.005, the definitions section for the chapter titled "Kentucky Alcohol and Other Drug Abuse Prevention, Intervention, and Treatment Law", defines "Treatment" as "services and programs for the care and rehabilitation of intoxicated persons and persons suffering from substance use disorder. 'Treatment' includes those services provided by the cabinet in KRS 222.211 and, in KRS 222.430 to 222.437, it specifically includes the services described in KRS 222.211(1)(c) and (d)".  

 

In turn, Ky. Rev. Stat. Ann. 222.211(1)(d) specifically describes "[s]ubstance use disorder treatment services offered on an inpatient or outpatient basis". (emphasis added).  Accordingly, the chapter likely covers involuntary medical treatment in addition to civil commitment for substance dependency

 

There is a right to counsel for respondents in such matters, as Ky. Rev. Stat. Ann. § 222.430 states:

 

(1) Involuntary treatment ordered for a person suffering from substance use disorder shall follow the procedures set forth in KRS 222.430 to 222.437.

(2) Except as otherwise provided for in KRS 222.430 to 222.437, all rights guaranteed by KRS Chapters 202A and 210 to involuntarily hospitalized mentally ill persons shall be guaranteed to a person ordered to undergo treatment for substance use disorder.

 

Therefore, the right to counsel found in the mental health commitment code, Ky. Rev. Stat. Ann. § 202A.121, is applicable in involuntary treatment proceedings sought due to substance dependency.  

 

As to those with intellectual disabilities

Seemingly no such proceeding

 

There does not appear to be a procedure to involuntarily treat those with intellectual disabilities on an outpatient basis, except in the context of an adult guardianship.  The guardian of a disabled person may consent on the protected person's behalf to "medical or other professional care, counsel, treatment of service," but a guardian does not have the authority to consent on the protected person's behalf to certain procedures absent court approval or an emergency situation. Ky. Rev. Stat. Ann. § 387.660.  The right to counsel in modification matters may or may not attach.  For more informationon the right to counsel in guardianship modification matters, please see Kentucky, Legislation, Guardianship/Conservatorship of Adults - Protected Person.

 

As to minors

 

Generally

Unclear as to whether there is such a proceeding

 

Minors may be subject to involuntary hospitalization (certification) petitions related to mental health. Ky. Rev. Stat. Ann. § 645.090.  At certification and recertification hearings regarding minors, the petitioner must show, by clear and convincing evidence, a variety of criteria, including that “No less restrictive alternative is available which will be effective in treating the child.” Id.  “Least restrictive alternative” is defined by the chapter to “mean[ ] the treatment and conditions of treatment for a child which, separately and in combination: … Involve no inpatient care restrictions on physical movement except as reasonably necessary for the administration of treatment or for the protection of the child or others from physical injury.” Ky. Rev. Stat. Ann. § 645.020(4).

 

However, the section covering “Order after hearing” does not expressly state that the court may enter an order requiring the child to participate in outpatient treatment (it merely states that the court shall either enter an order denying or granting the certification petition. See Ky. Rev. Stat. Ann. § 645.100). 

 

That said, section 202A.0815, discussed above, covering the "court-ordered assisted outpatient treatment” matters does not appear to be restricted to adults, so it may apply to minors as well.

 

Substance dependency matters

Unclear as to whether there is such a proceeding

Although nothing in the section covering Involuntary Treatment for Substance Use Disorder seems to limit its use to those 18 years of age or older, Ky. Rev. Stat. Ann. § 222.440, titled "Capacity of juvenile to consent to treatment; petition to district court by minor hospitalized or treated involuntarily" was repealed, so it is also unclear whether those provisions apply to minors.