Right to counsel

In proceedings regarding involuntary commitment or treatment of a “person alleged to have a mental illness and to be in need of treatment”, that person has a right to appointed counsel if indigent. Or. Rev. Stat. Ann. § 426.100(3).  If no request for counsel is made (by either the respondent or their “legal guardian, relative or friend”), “the court shall appoint suitable legal counsel unless counsel is expressly, knowingly and intelligently refused by the person.” Id. at (3)(c)-(d).  Subsection (4) reiterates that counsel is required unless the person is already represented or makes an express, knowing, and intelligent waiver.

If the court determines after hearing all evidence that the statutory factors are met, it may order either commitment (inpatient treatment) or treatment on an outpatient basis. See e.g., § 426.130.  Accordingly the same code sections appear to apply regardless of whether inpatient or outpatient treatment is sought or ordered.

The Oregon courts have clarified that under Or. Rev. Stat. § 426.100, the trial court does not have to advise an allegedly mentally ill person of his or her right to retain private counsel provided that the court has already made the determination that counsel had been appointed for the individual and he or she lacked the resources to retain private counsel. State v. J.C., 172 Or.App. 745, 749 (Ct. App. 2001). The judge is responsible for issuing a citation to the allegedly mentally ill individual, informing the person of their right to have legal counsel appointed if they cannot afford it. Or. Rev. Stat. Ann. § 426.090; see also Or. Admin. R. 309-033-0250(2) (whoever takes allegedly mentally individual into custody is responsible for informing of rights regarding appointment of counsel pursuant to Or. Rev. Stat § 426.100). If an individual decides to appeal a determination that he or she is mentally ill under Or. Rev. Stat. § 426.130, that individual has a right to counsel for the appeal if indigent. Or. Rev. Stat. Ann. § 426.135. See also Or. Rev. Stat. Ann. § 426.701(2)(c) (court must appointed counsel in proceedings to commit someone as “extremely dangerous’).

A person alleged to have an intellectual disability and to be in need of commitment for residential care, treatment, and training is also entitled to a court-appointed attorney if they cannot afford one and even if they do not make a request for counsel. Or. Rev. Stat. Ann. § 427.265.

Minors – No such proceeding

A court may order an individual to participate in assisted outpatient treatment if, among other things, the individual is at least 18 years old.  Accordingly, it does not appear that the code can be used to compel a minor child to participate in treatment on an outpatient basis. See e.g., Or. Rev. Stat. Ann. § 426.133(2).  The decision about whether to require a minor to participate in outpatient or inpatient treatment seems to generally be one that is left to the minor’s parents or legal guardian.  For example, Section 426.220(1) speaks of the ability of parents to admit individuals younger than 18 and to object on behalf of the child to the child’s continuing hospitalization.[1]

No procedures through which a minor can object to their parent or guardian’s consent on their behalf were located.

[1] The section states:

No person under the age of 18 years shall be admitted as a patient to any such state hospital unless an application therefor in behalf of the person has been executed by the parent, adult next of kin or legal guardian of the person. Except when a period of longer hospitalization has been imposed as a condition of admission, pursuant to rules and regulations of the authority, no person voluntarily admitted to any state hospital shall be detained therein more than 72 hours after the person, if at least 18 years of age, has given notice in writing of a desire to be discharged therefrom, or, if the patient is under the age of 18 years, after notice in writing has been given by the parent, adult next of kin or legal guardian of the person that such parent, adult next of kin or legal guardian desires that such person be discharged therefrom.

Or. Rev. Stat. Ann. § 426.220(1).