Right to counsel

Generally

Adults and children have a right to counsel in civil commitment proceedings.

As to adults

Civil commitment may be sought for either mental health or substance dependency reasons. See La. Stat. Ann. § 28:55 (If the court makes the requisite findings that “the respondent is dangerous to self or others or is gravely disabled, as a result of a substance-related or addictive disorder or mental illness, it shall render a judgment for his commitment.”). The right to counsel attaches as follows:

In the event the respondent does not select counsel and is unable to pay for counsel, or in the event counsel selected by the respondent refuses to represent the respondent or is not available for such representation, then the court shall appoint counsel for the respondent…

La. Stat. Ann. § 28:55. The initial notice of the proceeding that is given to the respondent must inform them about the right to counsel including the right to have Mental Health Advocacy Service counsel appointed if they are indigent or “otherwise qualified.” La. Rev. Stat. Ann. § 28:54(C). In the court’s discretion, the respondent or the petitioner can be made to pay for the “reasonable compensation” of appointed counsel “if either is found financially capable.” La. Stat. Ann. § 28:55(B). If the court does not impose costs against either, then the attorney is paid from funds appropriated to the judiciary. Id.

As to children

Generally

The Louisiana Children’s Code contains a title covering mental health proceedings, which provides minor respondents with the right to counsel “[i]n the event he does not select counsel and is unable to pay for counsel or in the event counsel selected by him refuses to represent said minor or is not available for such representation….” La. Child. Code Ann. art. 1442(A). If counsel is appointed, representation is provided by the Mental Health Advocacy Service. Id. The code also requires that children subject to such proceedings are notified of their right to counsel. See La. Child. Code Ann. art. 1436.

Commitment of children under this section can be sought for mental health or substance dependency reasons. See LA Ch.C. Art. 1434 (“Any adult may file with the court a petition which asserts his belief that a minor is suffering from mental illness … or is suffering from substance abuse which contributes or causes the minor to be a danger to himself or others or to be gravely disabled…”). It appears that the same provisions used to involuntarily institutionalize a minor can be used to compel treatment on an outpatient basis. The “Declaration of policy” requires that involuntary treatment is provided in a setting that is “the least restrictive of the minor’s liberty,” LA Ch.C. Art. 1402(2), and “[t]hat minors be protected from unnecessary institutionalization…” Id. at (8); see also La. Child. Code Ann. Art. 1447 (if the court makes requisite findings, “it shall render a judgment for his commitment to a designated treatment facility which is medically suitable and least restrictive of his liberty.”); La. Child. Code Ann. art. 1404 (“Treatment includes but is not limited to hospitalization, partial hospitalization, outpatient services, examination, diagnosis, training, the use of pharmaceutical, and other services provided for patients by a treatment facility.”).

Systems-involved children

In the code section covering delinquency matters, La. Child. Code Ann. art. 809(C) provides:

No child shall be admitted . . . to a public or private mental institution or institution for the mentally ill . . . unless he has been represented by retained private counsel who represents only the child’s interest or by an attorney from the Mental Health Advocacy Service, unless its executive director has determined that its attorneys are unavailable. Any attorney from the Mental Health Advocacy Service so appointed shall continue to represent the child in any proceeding relating to admission, change of status, or discharge from the mental hospital or psychiatric unit.

Furthermore, such a child is prohibited from waiving their right to counsel in cases where “it has been recommended to the court that the child be placed in a mental hospital, psychiatric unit, or substance abuse facility” or where the court seeks “to modify said dispositions…” La. Child. Code Ann. art. 810(D).

Additionally, in the context of child welfare matters and “[i]n any dispositional or postdispositional hearing which may result in the mental health institutionalization of a child who is in the custody of the state, the child shall be entitled to . . . an attorney appointed by the Mental Health Advocacy Service, unless unavailable as determined by the director.” La. Child. Code Ann. art. 607(D). If the child’s parents are found to be financially able to pay for the costs of the attorneys fees, the court may require them to pay some or all of the expenses. La. Child. Code Ann. rt. 607(C).