Right to counsel

Generally

Adult and minor respondents have the right to counsel in matters related to involuntary commitment due to mental health. In substance dependency-related commitments, adult respondents have the right to an attorney if they cannot afford one, while minor respondents are seemingly entitled only to a guardian ad litem. An adult’s right to counsel attaches at the initial hearing, but in the event of an emergency, they may be held temporarily through the entry of an ex parte order and without the appointment of counsel. Though there is some ambiguity in the statute, it appears that the parent, guardian, or custodian of a minor respondent is entitled to counsel if indigent. Because minor respondents receive a guardian ad litem and not client-directed counsel in substance dependency matters, the right to counsel is classified as “qualified.”.

Due to mental health

A petition may be filed requesting involuntary mental health treatment on an inpatient basis, outpatient basis, or both. See Fla. Stat. § 394.467(4)(d). Respondents to petitions for involuntary treatment have the right to counsel. There is no mention of an indigency requirement, though the statute does refer to “eligibility.” Fla. Stat. § 394.467(5) states:

Within 1 court working day after the filing of a petition for involuntary services, the court shall appoint the public defender to represent the person who is the subject of the petition, unless the person is otherwise represented by counsel or ineligible. The clerk of the court shall immediately notify the public defender of such appointment. The public defender shall represent the person until the petition is dismissed, the court order expires, the patient is discharged from involuntary services, or the public defender is otherwise discharged by the court. Any attorney who represents the patient shall be provided access to the patient, witnesses, and records relevant to the presentation of the patient’s case and shall represent the interests of the patient, regardless of the source of payment to the attorney.

(emphasis added).

As to minors – Right to counsel

The same provisions appear to apply to minors, Fla. Stat. § 394.467(1)(b) (defining “Involuntary inpatient placement” as “placement in a secure receiving or treatment facility providing stabilization and treatment services to a person 18 years of age or older who does not voluntarily consent to services under this chapter, or a minor who does not voluntarily assent to services under this chapter.”) (emphasis added); see also id. at (2)(b) (which lists the criteria for “[a] person ordered to involuntary inpatient placement” and does not include any age restrictions). The only provision specific to minors in the section appears to be that found at Fla. Stat. § 394.4785, which provides rules specific to the placement of minors, including subsection (1), prohibiting the placement of a child or adolescent in “a state-owned or state-operated mental health treatment facility.”

In the context of abuse/neglect matters

Pursuant to court rule, minors also have the right to counsel in state-initiated proceedings to place them in a residential treatment program. See Fla. R. Juv. P. Rule 8.350(a)(3) (“On the filing of this notice [that the child is to be assessed by a qualified evaluator] by the department, the court must appoint a guardian ad litem for the child, and must also appoint an attorney for the child.”).

Due to substance dependency

Involuntary treatment for “substance abuse impairment” or “a substance use disorder and a co-occurring mental health disorder” that rises to a certain level of statutory criteria found in Fla. Stat. § 397.675. Such matters can seemingly be sought on an inpatient or outpatient basis. See 397.311(24) (defining “Involuntary treatment services” as “an array of behavioral health services that may be ordered by the court for persons with substance abuse impairment or co-occurring substance abuse impairment and mental health disorders.”). There is also a right to counsel for respondents in such cases:

A respondent has the right to counsel at every stage of a judicial proceeding relating to a petition for his or her involuntary treatment for substance abuse impairment; however, the respondent may waive that right if the respondent is present and the court finds that such waiver is made knowingly, intelligently, and voluntarily. A respondent who desires counsel and is unable to afford private counsel has the right to court-appointed counsel and to the benefits of s. 57.081. If the court believes that the respondent needs or desires the assistance of counsel, the court shall appoint such counsel for the respondent without regard to the respondent’s wishes. …

Fla. Stat. § 397.681(2). However, in an emergency situation, an individual can be held temporarily through the entry of an ex parte order and without appointment of counsel. § 397.6818. The right to counsel would likely attach at the initial hearing date, of which the respondent must have notice. See id.

As to minors – Right to guardian ad litem

As to the involuntary commitment of minors due to substance dependency, a parent, legal guardian, or legal custodian may seek the admission and must be involved “in all aspects of treatment as determined appropriate by the director of the licensed service provider.” § 397.6759. Minors are entitled to a guardian ad litem per Fla. Stat. § 397.681(2) (“If the respondent is a minor not otherwise represented in the proceeding, the court shall immediately appoint a guardian ad litem to act on the minor’s behalf.”). However, another section of the code confusingly provides:

Each individual must be informed that he or she has the right to be represented by counsel in any judicial proceeding for involuntary treatment services and that he or she, or if the individual is a minor his or her parent, legal guardian, or legal custodian, may apply immediately to the court to have an attorney appointed if he or she cannot afford one.

Fla. Stat. § 397.501(8). In reading the section, there is some ambiguity as to whether it is the minor or the minor’s parent, guardian, or custodian who is entitled to counsel. However, given that Fla. Stat. § 397.681(2) merely provides for a guardian ad litem, reading the two sections together suggests that Section 397.501(8) likely refers to appointment of counsel for the minor’s parent, guardian, or custodian.

As to mental disability

When a person has a developmental disability for which involuntary admission to residential services is sought, they are entitled to appointed counsel at both the capacity determination (regardless of indigence), see Fla. Stat. Ann. § 393.12(5), and at the hearing to determine involuntary admission (if indigent), see § 393.11(6)(a).

If the disabled person sought to be admitted has a guardian, they are still entitled to their own counsel. In Auxier v. Jerome Golden Center for Behavioral Health, a protected person’s guardian committed the protected person and then opposed appointment of counsel for them, arguing that the guardian’s own attorney could represent the individual. 85 So.3d 1164 (Fla. App. 2012). But the Court of Appeals held that the individual was “entitled to representation by independent counsel, free from any conflict of interest.” Id. at 1166-67.

Right to effective assistance

Finally, the Supreme Court of Florida has held that “The subject of an involuntary civil commitment proceeding has the right to the effective assistance of counsel at all significant stages of the commitment process.” In re Beverly, 342 So. 2d 481, 489 (Fla. 1977).