Right to counsel

Generally

There is a right to counsel for adults and most children in involuntary treatment proceedings.  Because children younger than 14 years of age are entitled only to a guardian ad litem and not to an attorney, the right to counsel is classified as “qualified.”

Assisted outpatient treatment matters:

Mental health and substance dependency

Section 43-1B-4 covers the criteria for petitions for an order authorizing assisted outpatient treatment.  “Assisted outpatient treatment” may include “alcohol and substance abuse treatment and counseling”, in addition to other treatments for “a patient’s mental disorder”, including medication, periodic blood tests, and individual or group therapy. N.M. Stat. Ann. § 43-1B-2(D).

N.M. Stat. Ann. § 43-1B-6(D) states, “The respondent shall be represented by counsel at all stages of the proceedings.”

As to minors

The same provisions that apply in civil commitment matters for minors may be used to order a child to engage in treatment on an outpatient basis. See N.M. Stat. Ann. § 32A-6A-22 (“L. If the court determines that the child does not meet the criteria for involuntary [inpatient] placement set forth in this section, it may order the child to undergo nonresidential treatment or habilitation as may be appropriate and necessary or it may order no treatment.”); see also N.M Stat. Ann. 32A-6A-4 (“‘residential treatment or habilitation program’ means diagnosis, evaluation, care, treatment or habilitation rendered inside or on the premises of a mental health or developmental disabilities facility, hospital, clinic, institution, supervisory residence or nursing home when the child resides on the premises.”).

Such a child has the right to counsel if they are 14 years of age or older, while children younger than 14 are entitled to a guardian ad litem:  “A child shall be represented by an attorney at all commitment or treatment guardianship proceedings under the Children’s Mental Health and Developmental Disabilities Act if the child is fourteen years of age or older or by a guardian ad litem if the child is under fourteen years of age.” N.M. Stat. Ann. § 32A-6A-13(A). 

Under the code applicable to minors, a “mental disorder is defined as

…a substantial disorder of the child’s emotional processes, thought or cognition, not including a developmental disability, that impairs the child’s:

(1) functional ability to act in developmentally and age-appropriate ways in any life domain;
(2) judgment;
(3) behavior; and
(4) capacity to recognize reality[.]

§ 32A-6A-4(U).  Because “behavior” is included, a minor could likely be ordered to undergo involuntary medical treatment due to substance dependency under the section.