Right to counsel

Generally

Individuals subject to both mental health- and substance use-related civil commitment matters have the right to counsel at all stages, including at temporary custody hearings. See Kan. Stat. Ann. § 59-2960(a)(3) and 59-29b60(a)(3) (both provisions state, “Upon the filing of the petition … the district court shall issue … [a]n order appointing an attorney to represent the proposed patient at all stages of the proceedings and until all orders resulting from such proceedings are terminated.”); see also Kan. Stat. Ann. §§ 59-2959 and 59-29b59 [as to temporary custody matters].

There is no mention of an indigency requirement in any of these appointment provisions.  However, costs including attorneys fees can be levied against the patient’s estate, “to those bound by law to support such patient or to the county of the residence of the patient as the court having jurisdiction shall direct…” Kan. Stat. Ann. §§ 59-2981; 59-29b81.  But “if a proposed patient is found not to be a mentally ill person subject to involuntary commitment under this act,” they cannot be made to pay the costs. Id.  Instead, the court may either order the petitioner to pay or the costs “may be paid from the general fund of the county of the residence of the proposed patient.”

As to unrepresented petitioners

If the petitioner is unrepresented in a civil commitment matter, including at the temporary custody stage, “the county or district attorney shall represent the petitioner…”  See Kan. Stat. Ann. §§ 59-2965(e) and 59-2959 (as to mental health-related trials and temporary custody matters); 59-29b65(e) and 59-29b59 (substance dependency-related trials and temporary custody matters).

However, the goal of the county or district attorney is to “aid [ ] the court in determining whether or not the proposed patient is a mentally ill person subject to involuntary commitment for care and treatment under this act.”  So it seems as though the attorney serves in an ad litem-type role.

For minor respondents

If a person is younger than 18 years of age, their parent may apply to “voluntarily” admit them to a treatment facility. Kan. Stat. Ann. § 59-2949(b)(2).  Although a minor between the ages of 14 and 17 can consent on their own behalf to their admission, Id., nothing mentions that a minor between those ages is able to object to an admission to which their parents consented (which might trigger a right to counsel).

Though the section refers to “admission,” the head of the treatment facility may divert the person to “a less restrictive treatment alternative, as may be appropriate.” Kan. Stat. Ann. § 59-2949(b)(3).

Notably, the guardian of a minor (as opposed to a parent) cannot apply to voluntarily admit the minor without court authorization.  In such matters, the minor does have a right to counsel pursuant to Kan. Stat. § 59-3077(c)(3).