Right to Counsel

Indigent adult individuals have the right to counsel in mental health- and alcoholism-related involuntary treatment matters.  Indigent minors and the minor’s parent or guardian have the right to counsel in mental health involuntary treatment matters.

Generally

The provisions governing mental health commitment matters are also applicable in involuntary treatment cases. Alaska Stat. § 47.30.735(c) (providing that at the conclusion of the hearing, the court may either commit the individual or order a less restrictive alternative). 

While the code speaks of the right to be “represented by an attorney” in civil commitment proceedings, Alaska Stat. § 47.30.725(d), other statutory provisions clarify that this is a right to appointed counsel.  First, Alaska Stat. § 18.85.100(a) (the public defender statute) provides a right to counsel to an indigent person “against whom commitment proceedings for mental illness have been initiated.”  Second, during the initial involuntary commitment procedures, upon petition by any adult, the court must first order a screening investigation, and within 48 hours after completion of that screening, the court must appoint counsel if the court finds probable cause of mental illness.  Alaska Stat. § 47.30.700(a).

But where the threat of “serious harm to self or others [is] of such immediate nature that considerations of safety do not allow initiation of involuntary commitment procedures set out in AS 47.30.700,” the individual may be detained on an emergency basis at a crisis stabilization center pursuant to Alaska Stat. § 47.30.705(a).  The person may only be detained for a period not to exceed 23 hours and 59 minutes, and must be examined within three hours of their arrival. Id.  If, after the examination, the crisis stabilization center files an ex parte application to detain or evaluate the individual that is granted by the court, the court must appoint an attorney to represent the respondent. Alaska Stat. § 47.30.707(b).

An individual may also be brought to a crisis residential center in an emergency and, after the initial examination, a mental health professional may file an ex parte application for admission if “a judicial order has not been obtained under AS 47.30.707.” Alaska Stat. § 47.30.708(c).  If the court finds probable cause and grants the application, it shall appoint an attorney to represent the respondent. Id.

As to alcoholism 

There is a right to counsel for indigent individuals subject to commitment due to alcoholism at every stage of the proceedings, including commitment and recommitment matters. Alaska Stat. § 47.37.200.  Though the chapter does not define “Commitment”, it does define “Treatment” to include “the broad range of emergency, outpatient, intermediate, and inpatient services and care that may be extended to alcoholics, intoxicated persons, or drug abusers, including diagnostic evaluation, medical, psychiatric, psychological, and social service care, vocational rehabilitation and career counseling.” Alaska Stat. § 47.37.200 (emphasis added). 

Accordingly, the provisions can presumbly be used to order someone to participate in treatment for alcoholism on an outpatient basis.

As to minors

Generally

When civil commitment of a minor is sought due to mental health, the minor’s indigent parents have the right to counsel in the proceedings, and representation is provided by the office of public advocacy.  Alaska Stat. § 47.30.775 (“as parties [the minor’s parents or guardians] are entitled to retain their own attorney or have the office of public advocacy appointed for them by the court”); Alaska Stat. § 44.21.410(a)(3) (“[t]he office of public advocacy shall … provide legal representation … to indigent parents or guardians of a minor respondent in a commitment proceeding concerning the minor under AS 47.30.775.”). 

The minor respondent in such proceedings also has the right to counsel, since the provision governing commitment of minors incorporates the provisions applicable to adults. Alaska Stat. § 47.30.775 (“The provisions of AS 47.30.700 – 47.30.815 apply to minors.”;  “A minor respondent has the same rights to waiver and informed consent as an adult respondent under AS 47.30.660 – 47.30.915; however, the minor shall be represented by counsel in waiver and consent proceedings.”).  Presumably, the indigency requirement applies to minors as well.

No procedure for commitment based on substance abuse alone.

Unlike the Article covering “Involuntary Admission for Treatment,” the Uniform Alcoholism and Intoxication Treatment Act” does not have a section indicating that it applies to minors.  Accordingly, there is seemingly no procedure through which to order a minor to participate in inpatient or outpatient services based on alcoholism or substance dependency alone.  However, case law suggests that a minor may be subject to general civil commitment provisions if they are engaging in substance abuse, at least where the abuse occurs in tandem with psychiatric conditions. See Matter of April S., 499 P.3d 1011, 1013-14 (Alaska 2021) (discussing placement of a child under emergency detention and authorization of involuntary hospitalization where the child, in addition to having various psychiatric diagnoses, was found “likely to run away and engage in risky behaviors including substance abuse…”).

“Voluntary” commitment by parent or guardian

Seemingly no right to counsel where outpatient treatment only.

A parent or guardian of a minor younger than 18 may sign admission papers to admit their child for 30 days for the purpose of “evaluation, diagnosis, and treatment at a designated treatment facility.”  If the professional person in charge of the facility agrees that the admision is necessary, the minor shall be admitted. Alaska Stat. § 47.30.690(a).  But the professional person may also determine that a less restrictive alternative is appropriate. See id.

While a minor who is admitted under this process is entitled to a guardian ad litem, Id. at (b), there is no indication that a minor for whom outpatient treatment has been recommended is entitled to object to outpatient treatment consented to on their behalf (which might trigger a right to counsel).

System-involved minors

A court rule requires appointment of counsel for children 10 years of age or older in Child in Need of Aid (CINA) matters if “[t]he child does not consent to administration of psychotropic medication.” CINA Rule 12.1(1).

The court may appoint counsel for children younger than 10 years of age where “[t]he child’s and guardian ad litem’s positions are not aligned on placement, family or sibling contact, permanency goal, case plan, or another important issue in the case”, which could potentially include the administration of psychotropic medication. See id. at (2).