Right to counsel

Generally

Adult and minor respondents have the right to counsel in matters related to involuntary treatment due to mental health.  In substance dependency-related outpatient treatment matters, 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.  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).

Where patient is suspected incompetent to consent

If a patient is suspected incompetent to consent to treatment and has no guardian with the authority to consent on the patient’s behalf, an administrator [meaning “the chief administrative officer of a receiving or treatment facility or his or her designee” according to § 394.455(3)] “may petition the court for the appointment of a guardian advocate” who can consent to mental health treatment on the patient’s behalf. Fla. Stat. § 394.4598(1). In such matters, the patient has the right to counsel, and “[i]f the person is indigent, the court must appoint the office of the public defender to represent him or hear at the hearing.” Id.

A guardian advocate may consent to medical and mental health treatment, except that such person shall not consent to certain procedures unless they have “received express court approval in [a] proceeding separate from [the competence proceeding]…” Fla. Stat. § 394.4598(7). The procedures that require separate authorization are abortion, sterilization, electroconvulsive treatment, psychosurgery, and “[e]xperimental treatments that have not been approved by a federally approved institutional review board in accordance with 45 C.F.R. part 46 or 21 C.F.R. part 56.” Id. The right to counsel extends to these separate proceedings as well. Id.

As to minors – Same provisions apply

Though a previous version of the statute restricted involuntary outpatient services to those 18 years of age or older, see Fla. Stat. § 394.4655(2) (repealed in 2024 by HB 7021), the current list of statutory criteria does not contain an age requirement, see Fla. Stat. § 394.467(2)(a), nor does the definition of “Involuntary outpatient services” restrict the proceeding by age, see id. at (1)(c). Accordingly, it seems that the provisions governing outpatient treatment of adults also apply to minors.

Due to substance dependency

There is a right to counsel for involuntary substance abuse treatment matters where the individual cannot afford counsel. Fla. Stat. § 397.681(2) states:

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. § 397.501(8) requires that individuals are notified of the right to counsel and imposes a duty on the service provider to protect the individual’s rights, including the right to an attorney. Finally, the right to counsel also applies where a facility administrator seeks to appoint a guardian advocate to consent to treatment on the patient’s behalf per Fla. Stat. § 394.4598(1).

As to minors – Right to guardian ad litem

The same procedures may be used to compel a minor to participate in outpatient treatment on an involuntary basis due to substance dependency.  However, minors are entitled only to a guardian ad litem. 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.