Right to counsel

Due to mental health

A person 18 years of age or older who is believed to be “experiencing a mental illness” and who meets the other statutory criteria outlined in Cal. Welf. & Inst. Code § 5346(a) may be ordered by the court to participate in outpatient services on an involuntary basis.  “Mental illness” is defined by Cal. Welf. & Inst. Code § 5600.3(b)(2)-(3), which clarifies that those who solely have “a diagnosis of substance abuse, developmental disability, or other physical or mental disorder” or those with “an acquired traumatic brain injury” are excluded from the definition.

A person subject to a petition for involuntary outpatient treatment (referred to as “assisted outpatient treatment”) has the right to appointed counsel at all stages of the proceedings. Cal. Welf. & Inst. Code § 5346(c) states:

The person who is the subject of the petition shall have the right to be represented by counsel at all stages of a proceeding commenced under this section. If the person so elects, the court shall immediately appoint the public defender or other attorney to assist the person in all stages of the proceedings. The person shall pay the cost of the legal services if able to do so.

Extensions of involuntary intensive treatment – Mental health or chronic alcoholism

Persons also have the right to counsel at hearings about extending involuntary intensive treatment an additional 30 days due to “the person remain[ing] gravely disabled as a result of a mental disorder or impairment by chronic alcoholism.” Cal. Welf. & Inst. Code § 5270.70.

In relation to capacity to consent

Additionally, Cal. Prob. Code § 3205 provides that where a petition is filed regarding the capacity of an adult without a conservator to consent to medical treatment, “If the patient has not retained an attorney and does not plan to retain one, the court shall appoint the public defender or private counsel under Section 1471 to consult with and represent the patient at the hearing on the petition and, if such appointment is made, Section 1472 applies.”

Guardianship context

If court-ordered medical treatment is sought for a ward or conservatee, then “Upon the filing of the petition, unless an attorney is already appointed the court shall appoint the public defender or private counsel under Section 1471, to consult with and represent the ward or conservatee at the hearing on the petition and, if that appointment is made, Section 1472 applies.” Cal. Prob. Code § 2357.