Right to counsel

Generally

Adult respondents in mental health- and substance dependency-related involuntary treatment matters have the right to an attorney.  There is no mention of an indigency requirement.

Minor respondents may have the right to counsel in mental health-related matters, at least if they are emancipated or considered “of sufficient intelligence to understand and appreciate the consequences of the proposed surgical or medical treatment or procedures”, but the law is not clear.

Mental health-related matters

Arkansas’ mental health code uses the term “involuntary admission” to include “[a]dmission to outpatient behavioral healthcare services,” Ark. Code Ann. § 20-47-202(10)(C), and persons subject to such proceedings have the right to counsel. See Ark. Code Ann. § 20-47-212(a) (“If it appears to the court that the person sought to be involuntarily admitted is in need of counsel, counsel shall be appointed immediately upon filing of the original petition.”).  Although the statutory language makes it sound as though appointment of counsel is discretionary, Ark. Code Ann. § 20-47-211 states that “the person sought to be involuntarily admitted shall be served with a copy of the following statement of rights,” which includes “[t]hat he or she has the right to effective assistance of counsel, including the right to a court-appointed attorney[.]”

Substance use-related matters

Ark. Code Ann. § 20-64-817 provides that petitions for involuntary commitment shall notify the individual of “the right to effective assistance of counsel, including the right to a court-appointed attorney.”  Although the word “commitment” is used, a person may be releated from detention prior to their period of commitment expiring contingent upon “the person’s compliance with outpatient treatment.” Ark. Code Ann. § 20-64-826.  Alternatively, less restrictive care may be provided if the professional person in charge of the receiving facility or program deems it appropriate. Id.

Payment for attorneys fees

Regarding attorney’s fees, the statute sets a maximum amount of $150, and counsel may be appointed on a pro bono basis. Ark. Code Ann. § 20-47-212(b).  The Arkansas legislature has directed “[t]he quorum courts of each county [to] appropriate funds for the purpose of payment of the attorney’s fees provided for by this subchapter[.]” Id. at (c); see also Ark. Code Ann. § 14-20-102(a)(1) (creating a “fund to be used for the purpose of paying reasonable and necessary costs incurred … in the representation of persons against whom involuntary admissions procedures for mental health or alcohol and narcotic commitments … have been brought[.]”).  The public defender is tasked with providing representation in these matters. See Ark. Code Ann. § 16-87-306.

As to minors

The provisions governing involuntary treatment for substance dependency matters define “Person” as an individual who is 18 years of age or older. See Ark. Code Ann. § 20-64-801(6).  Accordingly, these provisions do not appear to apply to minors.

Conversely, nothing within the sections governing involuntary treatment for mental health reasons explicitly limit their application to those 18 and older. See Ark. Code Ann. § 20-47-201 et seq.  So these procedures, including the associated right to counsel, presumbly apply at least to emancipated minors and unemancipated minors who are “of sufficient intelligence to understand and appreciate the consequences of the proposed surgical or medical treatment or procedures”. Ark. Code Ann. § 20-9-602 (listing the individuals who are authorized to provide consent to medical treatments or procedures not prohibited by law).

As to other minors, § 20-9-602 indicates that “[a]ny parent, whether an adult or a minor” may consent to medical treatment on their child’s behalf, as can “[a]ny person standing in loco parentis, whether formally serving or not, and any guardian, conservator, or custodian” on behalf of “[their] ward or other charge under disability”. Id.  Because no procedures expressly state that an unemancipated minor or minor ward is able to object to an admission to which their parent or guardian consented (which might trigger a right to counsel), these individuals presumably do not have the right to counsel.