Right to counsel

Generally

There is a right to appointed counsel for individuals in a variety of civil commitment matters.

Due to ‘mental health disorder’

When a person appears to be “an imminent danger to others or to the person’s self” due to an apparent “mental health disorder” or appears to be “gravely disabled,” an intervening professional or certified peace officer may take the person into custody and seek a 72-hour hold to treat and evaluate the individual. Colo. Rev. Stat. § 27-65-106(1)(a).  Assuming the petition for evaluation is approved by the court and the subsequent evaluation shows that continued treatment is warranted, the facility where the respondent is being held may file a petition for involuntary treatment of the individual for up to three months (“petition to certify”). Colo. Rev. Stat. § 27-65-109(1).  The court must immediately appoint an attorney to represent the respondent upon receiving a petition for certification. Colo. Rev. Stat. § 27-65-109(5).  The right to counsel continues for all proceedings, including hearings to extend the commitment beyond three months, any subsequent reviews of the certification, and requests for outpatient treatment. Colo. Rev. Stat. § 27-65-109(5)-(6), (10).

If after the initial evaluation, the evaluating professional believes that continued commitment is warranted but the 72-hour emergency mental health hold is expected to expire before an appropriate placement can be located, the facility may place the person under a second emergency mental health hold, immediately notifying the court, at which point the court shall appoint an attorney. Colo. Rev. Stat. § 27-65-106(7)(a).

A person may also be certified for involuntary treatment for a period of up to three months without a 72-hour hold through a petition filed by their “spouse, legal guardian, relative, professional person, or any other responsible person.” Colo. Rev. Stat. § 27-65-108(1)-(2). Upon the filing of such a petition, the court shall immediately appoint an attorney for the respondent to represent them in all proceedings, including any appeals. Colo. Rev. Stat. § 27-65-108(4)(a).

Due to incapacitation due to alcohol or drugs

The provisions related to involuntary treatment due to alleged ‘incapacitation by alcohol’ or drugs apparently permit the court to order a variety of treatments, whether on an outpatient, inpatient, emergency, or intermediate basis. See e.g., Colo. Stat. § 27-81-102 (defining “Treatment”).  A written application for emergency commitment may be made to the administrator of an approved treatment facility. Colo. Rev. Stat. § 27-81-111(2).  If approved, the person may be committed for no more than five days, but may be held for longer than five days if involuntary commitment proceedings are sought pursuant to § 27-81-112. See Colo. Rev. Stat. § 27-81-111(5).  Within 24 hours of detainment, the administrator must advise the person of their right to challenge the detention and of their right to court-appointed counsel at every stage of the proceedings if they want counsel but are unable to obtain counsel. Colo. Rev. Stat. §§ 27-81-111 and 27-81-112.  As to the right to counsel in such matters, Section 27-81-112(12) provides:

The court shall inform the person whose commitment or recommitment is sought of the person’s right to contest the application, to be represented by counsel at every stage of any proceedings relating to the person’s commitment and recommitment, and to have counsel appointed by the court or provided by the court if the person wants the assistance of counsel and is unable to obtain counsel. If the court believes that the person needs the assistance of counsel, the court shall require, by appointment if necessary, counsel for the person regardless of the person’s wishes.

As to minors

Due to ‘mental health disorder’

Finally, minors fifteen years of age or older have the right to an attorney where they object to their continued hospitalization.  If “a minor does not consent to or objects to continued hospitalization, the need for such continued hospitalization must, within ten days, be reviewed … by an independent professional person.” Colo. Rev. Stat. § 27-65-104(6)(a).  If the evaluation supports continued hospitalization but the minor continues to object, the minor must be informed of their “right to retain and consult with an attorney at any time[,]” and if the minor requests representation, “the director or the director’s duly appointed representative shall file, within three days after the [minor’s request], a statement requesting an attorney for the minor or, if the minor is under fifteen years of age, a guardian ad litem.” Colo. Rev. Stat. § 27-65-104(6)(b).

Due to incapacitation due to alcohol or drugs

The same section appears to govern involuntary treatment of both adults and minors, as Section 27-81-112(3)(c) provides that if the person whose commitment is sought seeks to contest the matter, notice of the hearing must be provided to the respondent and, if the respondent is a minor, to one of their parents or their legal guardian.  As discussed above, the right to counsel attaches under Section 27-81-112(12).