Right to counsel

Generally

Persons subjected to various involuntary outpatient treatment matters have a right to counsel, and protected persons may arguably be appointed counsel.

Mental health-related treatment

In 2018, the legislature added 50 Pa. Stat. Ann. § 7304(c.2)(3), which specifies that when a petition is filed to subject a person to involuntary outpatient treatment who is not already subject to involuntary inpatient treatment and the court determines the petition sets forth reasonable cause, the court must appoint an attorney “as soon as practicable.  The attorney shall represent the person unless it shall appear that he can afford, and desires to have, private representation.”

In In re Hutchinson, the Supreme Court of Pennsylvania interpreted Section 7304 to require that an alleged mental incompetent is entitled to effective representation by competent private or court-appointed counsel in civil commitment proceedings. 454 A.2d 1008, 1011 (Pa. 1982).

Substance dependency-related treatment

Pennsylvania’s Drug and Alcohol Abuse Control Act, 71 Pa. Stat. Ann. § 1690.101 to § 1690.115, provides, “Except as provided in section 12.1 of this act, admissions and commitments to treatment facilities may be made according to the procedural admission and commitment provisions of the act of July 9, 1976 (P.L. 817, No. 143), known as the ‘Mental Health Procedures Act.’ [50 P.S. § 7101 et seq.]” (internal footnote omitted).  Accordingly, the procedures discussed above apply in substance dependency-related treatment matters as well.

Adult guardianship context

A guardian cannot consent for certain medical treatment, including abortion, sterilization, and experimental medical procedures, nor to marriage or divorce, “unless specifically included in the guardianship order after specific findings of fact or otherwise ordered after a subsequent hearing.” 20 Pa. Stat. Ann. § 5521(d) (emphasis added).

In proceedings to establish guardianship, the alleged incapacitated person has “the right to request the appointment of counsel and to have counsel appointed if the court deems it appropriate and the right to have such counsel paid for if it cannot be afforded.”  20 Pa. Stat. Ann. § 5511(a).  According to 20 Pa. Stat. Ann. § 5512.2(b), the same rights given in guardianship establishment proceedings apply to review proceedings, which means the discretionary appointment of counsel system should apply as well, and review proceedings likely include hearings related to consent for sterilization and other medical procedures given the broad statutory language. Pa. Stat. Ann. § 5512.2(a) (“The court shall conduct a review hearing promptly if the incapacitated person, guardian or any interested party petitions the court for a hearing … to act in the best interest of the incapacitated person.”).

To learn more about the right to counsel in adult guardianship matters, please see Legislation, Guardianship/Conservatorship of Adults – Protected Person, PA joins majority of states in establishing RTC for guardianships.

As to minors

Mental health-related treatment

The procedures applicable to adults also apply to juveniles subject to involuntary commitment and treatment matters due to mental health. See In re S.C., 421 A.2d 853, 857 (Pa. Super Ct. 1980).  But there are also provisions specific to minors, discussed below.

Withdrawal from voluntary inpatient treatment

Where a minor is younger than 14 years of age and was admitted on a voluntary basis, “[their] parent, legal guardian, or person standing in loco parentis” may request that the minor be released or that their treatment be modified, for example, “afforded treatment constituting a less restrictive alternative”. 50 Pa. Stat. Ann. § 7206(b).  The petition for withdrawal or modification is filed in the Juvenile Division, and “[t]he court shall promptly appoint an attorney for such a minor person and schedule a hearing to determine what inpatient treatment, if any, is in the minor’s best interest.” Id.

Substance dependency-related treatment

The relevant statute provides:

A parent or legal guardian who has legal or physical custody of a minor may petition the court of common pleas of the judicial district where the minor is domiciled for commitment of the minor to involuntary drug and alcohol treatment services, including inpatient services, if the minor is incapable of accepting or unwilling to accept voluntary treatment.

71 Pa. Stat. Ann. § 1690.112a(a).  The court shall appoint counsel upon the filing of such a petition. Id. at (b).