Right to counsel

Generally

There is a right to counsel for adults and most children in involuntary commitment proceedings.  Because children younger than 14 years of age are entitled only to a guardian ad litem and not to an attorney, the right to counsel is classified as “qualified.”

Mental health- and developmental disability-related commitments

N.M. Stat. § 43-1-4 provides that in all mental health and developmental disabilities proceedings,

The court shall appoint counsel to represent a client who has not retained counsel and is unable to do so. When appointing counsel, the court shall give preference to nonprofit organizations offering representation to persons with a mental illness or a developmental disability. A client shall be liable for the cost of legal representation unless the client is indigent.

Additionally, developmentally disabled adults subjected to involuntary commitment in residential care have a right to counsel. N.M. Stat. Ann. § 43-1-13(D) (“At the hearing on the petition, the proposed client shall be represented by counsel …”).

Under the code, “developmental disability or intellectual disability” refers to “a severe chronic disability attributable to significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior, cerebral palsy, autism or neurological dysfunction that requires similar treatment or habilitation.” And “mental disorder” is defined as a “substantial disorder of a person’s emotional processes, thought or cognition that grossly impairs judgment, behavior or capacity to recognize reality, but does not mean developmental or intellectual disability.” See N.M. Stat. Ann. § 43-1-3(I) and (P).

Accordingly, it does not seem that this code section can be used to order civil commitment due to substance dependency.

Substance dependency-related commitments

The procedures for involuntary inpatient treatment for substance abuse was repealed. See N.M. Stat. Ann. § 43-2-9 (repealed July 1, 2005).

As to minors

“A child shall be represented by an attorney at all commitment or treatment guardianship proceedings under the Children’s Mental Health and Developmental Disabilities Act if the child is fourteen years of age or older or by a guardian ad litem if the child is under fourteen years of age.” N.M. Stat. Ann. § 32A-6A-13(A).