Right to counsel

Key_development Question_mark

Legislation, Civil Commitment

A statute provides a right to counsel for indigent adults and system-involved minors in mental health commitment matters.  Notably, there does not appear to be a process to commit an adult due to alcoholism or substance dependency alone.


Other minors, admitted based upon the application of their parent, guardian, or custodian, do not appear to have the right to object to a mental health

admission made on their behalf (which ordinarily accompanies a right to counsel).  Similarly, no right to object for minors suffering from alcoholism whose parent or guardian consented to their admission was located. 




Indigent persons subject to mental health civil commitment matters have the right to counsel at a variety of stages. See Ariz. Rev. Stat. Ann. §§ 36-528(D) (as to emergency detention); 36-529(A)-(B),(D) (as to involuntary detention or temporary hospitalization for the purpose of evaluation); see also Ariz. Rev. Stat. §§ 36-535 (court shall appoint counsel for proposed patient if one has not previously been appointed in connection with detention hearing).


Attorneys fees


As to payment for counsel, Section 36-537 provides, "If the attorney is appointed, he shall also explain that the patient can obtain his own counsel at his own expense and that, if it is later determined that the person is not indigent, the person will be responsible for the fees of the appointed attorney for services rendered after the initial attorney-client conference."

Effective assistance

In In re MH2010–002637, the appellate court stated,

Given the significant liberty interests involved, the substantial risk of error without a competent attorney, and the government interest that patients are represented, the Due Process Clause of the Fourteenth Amendment requires that a civil commitment patient receive effective assistance of counsel.

263 P.3d 82, 90 (Ariz. Ct. App. 2011).

As to alcoholism

No right to counsel for temporary detentions and no such proceeding.

Under certain circumstances, a person who is intoxicated in a public place can be temporarily detained on an emergency basis for the purpose of evaluation or treatment. See Ariz. Rev. Stat. Ann. § 36-2026.  There does not appear to be a right to counsel associated with such temporary detentions. 

Nor does there appear to be a procedure through which to involuntarily commit someone due to alcoholism or substance dependency. See e.g., Ariz. Rev. Stat. Ann. § 36-2025(A) ("An intoxicated person may come voluntarily to an approved local alcoholism reception center for emergency alcoholism treatment."); see also Ariz. Rev. Stat. Ann. § 36-501(26)(a) (providing that a "Mental disorder" does not include conditions stemming primarily from "drug abuse, alcoholism or intellectual disability, unless, in addition to one or more of these conditions, the person has a mental disorder.").

As to minors



Under the mental health code, a minor's parent, guardian or custodian may apply to admit the minor. Ariz. Rev. Stat. § 36-518(C).  Alternatively, if these individuals are "without monetary resources to file an application or could not be located after reasonable efforts", "a person designated by the court" may apply to admit the minor, provided that other statutory criteria are met, e.g., an interview with the child and a psychiatric investigation. Id. 


Similarly, the parent, legal guardian, or "other representative" of a minor suffering from alcoholism may apply on the minor's behalf for "evaluation and treatment" of the minor. § 36-2024(A).  The application is made "directly to any approved public or private treatment facility." Id.  


No procedures could be located, as to either mental health or alcohol-related applications, that expressly state that such minors can object to an application made on their behalf (which might trigger a right to counsel).  Accordingly, these minors presumably do not have the right to counsel under statute.


System-involved minors


Section 8-272(A), found within the Juvenile Court code, provides, "If a child exhibits behavior that indicates the child may suffer from a mental disorder or is a danger to self or others, an entity may request that the child receive an outpatient assessment or inpatient assessment." (emphasis added).  "Entity" is defined as "the department of child safety, the department of juvenile corrections or a child welfare agency that has been granted legal care, custody and control of a child" and other facilities, e.g., a probation department or juvenile detention center. Ariz. Rev. Stat. Ann. § 8-271(2).

The section provides unrepresented minors with the right to counsel in "any court appearance that may result in institutionalization or mental health hospitalization." Ariz. Rev. Stat. Ann. § 8-221(C).  The right applies at initial and ongoing proceedings. See e.g., Ariz. Rev. Stat. Ann. §§ 8-272(G) (requiring appointment of counsel for unrepresented children "as soon as practicable" after the filing of motions for judicial approval of admission for inpatient assessment or for inpatient psychiatric acute care services); § 8-273 (60-day reviews of the continuing need for residential treatment services).

Under the former Ariz. Rev. Stat. Ann. § 8-221(E), the court could order the juvenile's parent or guardian to pay all or part of the costs of the attorney's services, if the court found that the parent or guardian had "sufficient financial resources."  However, this provision was removed in 2023 by SB 1197.

Appointment of Counsel: categorical Qualified: no