Right to counsel

Key_development Question_mark

Legislation, Civil Commitment

Indigent persons shall be appointed counsel in commitment or retention hearings.  M.G.L. ch. 123, § 5 (mental health title).  Upon admission of the person to a designated facility, "the facility shall inform the person that it shall, upon such person's request, notify the committee for public counsel services of the name and location of the person admitted."  M.G.L. ch. 123, § 12(b). The statute adds that "The committee for public counsel services shall immediately appoint an attorney who shall meet with the person. If the appointed attorney determines that the person voluntarily and knowingly waives the right to be represented, is presently represented or will be represented by another attorney, the appointed attorney shall so notify the committee for public counsel services, which shall withdraw the appointment." Id.


Anyone can apply for a three day commitment to a facility of a mentally ill person whom the failure to confine would cause a likelihood of serious harm. M.G.L. ch. 123, § 12(e). The statute adds that "The court shall appoint counsel to represent said person."  


Indigent persons shall be appointed counsel in hearings for medical treatment, including antipsychotic medication treatment. M.G.L. ch. 123, § 5 (mental health title). See also M.G.L. ch. 123, § 8B(d) (After hearing upon petition regarding antipsychotic medication treatment, court shall not authorize medical treatment unless, among other requirements, it "determines, after careful inquiry and upon representations of counsel, that there are not contested issues of fact[.]") Any person may make written application to a justice of a superior court at any time and in any county, stating that he believes a person being retained in a facility after having been civilly committed should no longer be retained or that the person should no longer be given medical treatment. M.G.L. ch. 123, § 9(b). The statute adds that "The justice shall appoint any attorney to represent any applicant whom he finds to be indigent."


If it is proposed to transfer a person with an intellectual disability from one residential facility to another, the person shall have the right to counsel in adjudicatory hearings regarding the transfer, but the statute does not state whether counsel will be appointed in the event the person is unable to retain counsel. M.G.L. ch. 123B, § 3.


Under Massachusetts law, police officers, physicians, spouses, blood relatives, guardians, and court officials may petition any district court or any juvenile court department for an order of commitment of a person believed to be an alcoholic or substance abuser as defined under Massachusetts General Law ch. 123, § 35. At a hearing, the person has the right to be represented by legal counsel, and "If the court finds the person indigent, it shall immediately appoint counsel."  M.G.L. ch. 123, § 35.

Appointment of Counsel: categorical Qualified: no