Right to counsel

Generally

 

There is a right to counsel for the subject of various civil commitment proceedings, including for minors.

Mental health-related civil commitments

 

There is a right to counsel for the subject of a mental health-related civil commitment proceedings under Ky. Rev. Stat. Ann. § 202A.121.

 

Substance dependency-related commitments

 

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 Ky. Rev. Stat. Ann. § 202A.121 is applicable in involuntary commitment proceedings sought due to substance dependency.  

Involuntary admission of individuals with intellectual disabilities

 

As to the involuntary admission of individuals with an intellectual disability, Ky. Rev. Stat. Ann. § 202B.050 states, "All rights guaranteed by KRS Chapter 210 to mentally ill persons shall apply to individuals with an intellectual disability."  But the applicable Chapter also contains its own right to counsel provision at Ky. Rev. Stat. Ann. § 202B.210, which provides, "Upon the filing of a petition for involuntary admission pursuant to KRS 202B.045, the court shall appoint an attorney to represent the respondent with the appointment and representation to continue unless the respondent retains private counsel."

 

As to minors

 

Generally

 

Minors may be hospitalized involuntarily for mental health-related reasons.  At certification and recertification hearings regarding minors, the petitioner must show, by clear and convincing evidence, the below criteria for the child to be hospitalized involuntarily:

 

(1) The child is mentally ill or has symptoms of mental illness;
(2) The child is dangerous to himself or others;
(3) The child can benefit from treatment available only at a hospital; and
(4) No less restrictive alternative is available which will be effective in treating the child.

 

Ky. Rev. Stat. Ann. § 645.090.  The following individuals or entities may file a petition seeking to hospitalize a child:  "A parent or other person exercising custodial control or supervision of a child, including a hospital or the state or any interested person". Ky. Rev. Stat. Ann. § 645.040.  

 

The child is entitled to counsel "at every stage of the proceedings", and "the court shall appoint counsel from the Department of Public Advocacy". Ky. Rev. Stat. Ann. § 645.060.  The child's parents may be ordered to pay for counsel. Id.

 

Voluntary admission of child 16 years of age or older who later revokes consent

Presumptive right to counsel

 

A child 16 years of age or older may consent on their own behalf to admission or may consent to their admission along with one of their parents or “a person exercising custodial control or supervision”. Ky. Rev. Stat. Ann. § 645.030(1)(b)-(c). Such children have the right to provide notice of their intent to leave at any time and must be notified of that right. Id.; see also Ky. Rev. Stat. Ann. § 645.190 ("Any child who was admitted pursuant to KRS 645.030(1)(b) or (c) may give notice of intent to leave at any time...").

 

If the hospital receives notice of contest of the intent to leave, it may “continue the hospitalization on an involuntary basis until a hearing has been held and the court determines otherwise.” Ky. Rev. Stat. Ann. § 645.210.  The right to counsel found in § 645.090 presumably applies at the hearing.

 

"Voluntary" admission of child younger than 16 where consent given by parent

Seemingly no procedure to object

 

If a child is less than 16 years of age, a parent or “other person exercising custodial control or supervision” of the child may consent to the child’s admission on the child’s behalf through written application. Ky. Rev. Stat. Ann. § 645.030(1)(a).  But if the child reaches their sixteenth birthday while hospitalized, they must consent to their continued hospitalization “or shall request his or her release.” Id.  It does not appear that minors younger than 16 whose parent or guardian consented to their admission or treatment have the ability to object (a process to which the right to counsel may attach), since Section 645.190, “Child's right to file notice of intent to leave” does not provide that such a child has the right to file such notice.

 

Substance dependency matters

 

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 unclear whether those provisions apply to minors.

 

However, under the Juvenile Code Mental Health Act chapter, “ 'Mentally ill child' means that considering the child's age and development, the child has a substantially impaired capacity to use self-control, judgment or discretion in the conduct of the child's affairs and social relations, the child's behavior is maladaptive or the child exhibits recognized emotional symptoms which can be related to physiological, psychological or social factors." Ky. Rev. Stat. Ann. § 645.020(8).  Behavioral issues could presumably include substance dependency matters.