Right to counsel

A statute provides a right to counsel for indigent adults in involuntary mental health treatment matters.  Notably, there does not appear to be a process to compel treatment due to substance dependency alone.

Conversely, minors do not seem to have the right to counsel in matters related to their outpatient treatment.  (However, system-involved minors do have the right to counsel where inpatient treatment is sought. See Arizona, Legislation, Civil Commitment for more information.)

Generally

The same provisions that govern mental health commitment proceedings can be used to order an individual to engage in outpatient treatment on an involuntary basis. See Ariz. Rev. Stat. Ann. § 36-540 (providing that, if the requisite findings are made, the court shall order the individual to participate in outpatient treatment or “in a program consisting of combined inpatient and outpatient treatment”).

Throughout the involuntary mental health treatment process, the law provides a right to counsel for indigent individuals. See Ariz. Rev. Stat. Ann. §§ 36-528(D) (as to emergency detention) and 36-529(A)-(B),(D) (as to involuntary detention or temporary hospitalization for the purpose of evaluation); see also Ariz. Rev. Stat. §§ 36-535 (court shall appoint counsel for proposed patient if one has not previously been appointed in connection with detention hearing).

Attorneys fees

As to payment for counsel, Section 36-537 provides, “If the attorney is appointed, he shall also explain that the patient can obtain his own counsel at his own expense and that, if it is later determined that the person is not indigent, the person will be responsible for the fees of the appointed attorney for services rendered after the initial attorney-client conference.”

Effective assistance

The right to counsel in such matters has been interpreted to encompass the right to effective assistance.  In In re MH2010–002637, the appellate court stated,

Given the significant liberty interests involved, the substantial risk of error without a competent attorney, and the government interest that patients are represented, the Due Process Clause of the Fourteenth Amendment requires that a civil commitment patient receive effective assistance of counsel.

263 P.3d 82, 90 (Ariz. Ct. App. 2011).  The court applied the Mathews factors and looked to an attorney’s obligations under applicable statutes to determine if the individual received effective assistance.

As to alcoholism

Under the mental health code, a “Mental disorder” excludes conditions stemming primarily from “drug abuse, alcoholism or intellectual disability, unless, in addition to one or more of these conditions, the person has a mental disorder.” Ariz. Rev. Stat. Ann. § 36-501(26)(a) (emphasis added).  Accordingly, involuntary treatment cannot be compelled due to alcoholism or substance dependency alone under those provisions.

The public health code does address treatment for alcoholism, but it does not contain a civil process through which to compel an individual to participate in outpatient care for alcoholism.  The law simply provides that “[a]n alcoholic may apply for evaluation and treatment directly to any approved public or private treatment facility.” Ariz. Rev. Stat. Ann. § 36-2024(A).  If they are admitted for care but later decide to leave, “the patient shall be encouraged to consent to appropriate outpatient treatment or intermediate treatment.” Id. at (C).

For minors

Generally

Under the mental health code, a minor’s parent, guardian or custodian may apply to admit the minor. Ariz. Rev. Stat. § 36-518(C).  Alternatively, if these individuals are “without monetary resources to file an application or could not be located after reasonable efforts”, “a person designated by the court” may apply to admit the minor, provided that other statutory criteria are met, e.g., an interview with the child and a psychiatric investigation. Id.  (One such requirement is that the medical director determine “whether the child needs an inpatient evaluation or will benefit from [mental health] care and treatment … and whether the evaluation or treatment goals can be accomplished in a less restrictive setting.” Id.)

Similarly, the parent, legal guardian, or “other representative” of a minor suffering from alcoholism may apply on the minor’s behalf for “evaluation and treatment” of the minor. § 36-2024(A).  The application is made “directly to any approved public or private treatment facility.” Id.

No procedures could be located, as to either mental health or alcohol-related applications, that expressly state that such minors can object to an application made on their behalf (which might trigger a right to counsel).  Accordingly, these minors presumably do not have the right to counsel under statute.

System-involved minors

Section 8-272(A), found within the Juvenile Court code, provides, “If a child exhibits behavior that indicates the child may suffer from a mental disorder or is a danger to self or others, an entity may request that the child receive an outpatient assessment or inpatient assessment.” (emphasis added).  “Entity” is defined as “the department of child safety, the department of juvenile corrections or a child welfare agency that has been granted legal care, custody and control of a child” and other facilities, e.g., a probation department or juvenile detention center. Ariz. Rev. Stat. Ann. § 8-271(2).

The section does provide unrepresented minors with the right to counsel, but only in “any court appearance that may result in institutionalization or mental health hospitalization.” Ariz. Rev. Stat. Ann. § 8-221(C).  However, it appears that matters related to outpatient treatment and assessment do not require court approval and accordingly, there likely is no associated right to counsel.

See e.g., Ariz. Rev. Stat. Ann. §§ 8-272(D) (“[w]ithin twenty-four hours after a child is admitted to an inpatient assessment, excluding weekends and holiday, the entity shall file a motion for approval of admission for inpatient assessment with the juvenile court.”); 8-272(G) (“As soon as practicable after the filing of a motion [for approval of admission for inpatient assessment or a motion for inpatient psychiatric acute care services] the [juvenile] court shall appoint an attorney for the child if an attorney has not previously been appointed. The court may also appoint a guardian ad litem for the child.”).  No similar requirement that the court approve outpatient treatment of a child was found.

Under the former Ariz. Rev. Stat. Ann. § 8-221(E), the court could order the juvenile’s parent or guardian to pay all or part of the costs of the attorney’s services, if the court found that the parent or guardian had “sufficient financial resources.”  However, this provision was removed in 2023 by SB 1197.