Right to counsel

Adults subject to involuntary medical treatment matters

Generally

Ind. Code § 12-26-2-2 broadly states that in mental health proceedings brought under a set of enumerated statutes (i.e., “IC 12-26-6 [90-day involuntary commitment]; IC 12-26-7 [“regular commitment” of more than 90 days]; IC 12-26-12 [discharge]; IC 12-26-15 [review of commitment]”), individuals have a right “[t]o be represented by counsel.”  One court construed the predecessor statute, IC 16-14-9.1-9(e)(4) (which contained similar language about “the right to be represented by counsel”), to imply a right to appointed counsel. See F.J. v. State, 411 N.E.2d 372, 384 (Ind. Ct. App. 1980) (“F.J. was at no time told she could have an attorney appointed for her, despite the language of [the statute] giving her the right to be represented by counsel.”).  

Courts are authorized to order therapy on an outpatient basis after a hearing is held pursuant to either the 90-day or the “regular” commitment (of greater than 90 days) statutes where “the court finds that the individual is … likely to benefit from an outpatient therapy program”. Ind. Code 12-26-14-1.  

Involuntary treatment due to substance abuse or alcoholism

Ind. Code § 12-23-11.1-1, the provision governing involuntary treatment for drug or alcohol dependency, incorporates the code sections discussed above, which have been interpreted by courts to provide the right to appointed counsel. The section states:

(a) Except as provided in subsection (b), an individual who is:

(1) an alcoholic;

(2) incapacitated by alcohol; or

(3) a drug abuser;

may be involuntarily committed to the care of the division under IC 12-26.

(b) A drug abuser who is charged with or convicted of an offense that makes the individual ineligible to make an election for treatment under IC 12-23-6.1 may not be involuntarily committed under subsection (a).

Ind. Code § 12-23-11.1-1.  Because this provision incorporates Ind. Code § 12-26, it is possible that someone with alcohol or drug dependency could be ordered to participate in treatment on an outpatient basis, and the arguable right to counsel applicable in general commitment matters presumably applies in this context as well.

Children subject to civil commitment or treatment

As to the civil commitment of children, Ind. Code § 12-26-8-1 provides:

(a) A juvenile court that conducts a proceeding under this article shall appoint a court appointed special advocate, a guardian ad litem, or both for the child before the court begins a proceeding under this article.
(b) An advocate is not required to be an attorney.
(c) An attorney representing the child may be appointed as the child’s advocate.

Ind. Code § 12-26-8-3 adds that the court may appoint an attorney to represent the child’s advocate.

As to involuntary treatment of minors for alcohol or drug dependency specifically, a separate chapter applies (see Ind. Code §§ 12–23–12–1 to 12–23–12–3).  Though these provisions do not mention the appointment of counsel, § 12-23-12-3 states that the court follows “the procedure established for juveniles in such cases or the procedure established by this article if the court having juvenile jurisdiction waives jurisdiction”, which may mean that § 12-26-8-1 applies.

Discretionary appointment for petitioners

Ind. Code § 12-26-2-5(c) states, “The court may appoint counsel for a petitioner upon a showing of the petitioner’s indigency and the court shall pay for such counsel if appointed.”  This provision applies for petitions brought under the same enumerated statutes as those found in § 12-26-2-2:  §§ 12-26-6 [90-day involuntary commitment]; 12-26-7 [“regular commitment” of more than 90 days]; IC 12-26-12 [discharge]; and IC 12-26-15 [review of commitment].