Right to counsel

Mental Health Context

Rule 12 of the Superior Court Rules of Procedure for Mental Health provides the right to counsel for “[a]ny person who is involuntarily hospitalized or the subject of any petition filed pursuant to D.C. Code §§ 21-501 – 592 (2004 Supp.) or § 24-502 (2001 Supp.).” SCR M.H. Rule 12(a)(1).  This includes not only those detained under emergency procedures but also those who have not been detained on an emergency basis but are the subject of a petition for judicial commitment. See Rule 12(a)(2). 

Rule 2A requires that a person detained on an emergency basis is informed of their right to counsel.  SCR M.H. Rule 2A [“A person detained pursuant to D.C. Code § 21-521 (2004 Supp.) shall be informed of his or her right to counsel upon admission to a hospital, a facility certified by the Department of Mental Health (Department) for emergency detention, or the Department.”].

These rules reflect the language found in D.C. Code, including § 21-543(a):  

The person alleged to be mentally ill and, because of the mental illness, likely to injure himself or others shall be represented by counsel in any proceeding before the Commission or the court, and if he fails or refuses to obtain counsel, the court shall appoint counsel to represent him…

(emphasis added).  However, the right does not extend to examinations.  In Matter of Holmes, the court held that the fact that Commission on Mental Health members examined the appellant before the hearing did not make the examination a “proceeding” within the meaning of § 21-543 such that the appellant was entitled to appointed counsel. 422 A.2d 969, 972 (D.C. 1980).

Although the appointment of counsel in the mental health commitment context is not contingent upon indigency, the court may direct counsel’s compensation to be charged against the estate of the individual for whom counsel was appointed. D.C. Code § 21-543.

Finally, D.C. Code § 21-548(b)(4) provides that the right to counsel also applies in matters related to revocation of outpatient status.  In other words, it extends to situations where a change from outpatient to involuntary inpatient services is sought.

Commitment of Persons with Intellectual Disabilities Found Incompetent in Criminal Matter

Pursuant to D.C. Code § 7-1304.02:

Persons who have been committed, or whose commitment is sought pursuant to § 7-1303.04(b-1), have the right to be represented by counsel, retained or appointed by the Court, in any proceeding held before the Court in accordance with this chapter, and they shall be informed by the Court of this right. The Court shall appoint counsel to represent the person. Whenever possible, counsel shall be appointed who has had experience in the intellectual disability area. Counsel appointed to represent persons who are unable to pay for such counsel shall be awarded compensation by the Court for his or her services in an amount determined by the Court to be fair and reasonable.