Right to counsel

Generally

Adults subject to civil commitment proceedings have the right to counsel as do minors 14 or older who object to continued inpatient treatment and minors younger than 14 years of age whose parent or guardian seek to withdraw or modify their voluntary inpatient treatment.

Mental health-related commitments

There is a right to counsel for the subject of a civil commitment proceeding. See 50 Pa. Stat. Ann. §§ 7303(b) (extended emergency treatment applications); 7304(e) (petitions for treatment not exceeding ninety days).

In In re Hutchinson, the Supreme Court of Pennsylvania interpreted Section 7304 to require that an alleged mental incompetent is entitled to effective representation by competent private or court-appointed counsel in civil commitment proceedings. 454 A.2d 1008, 1011 (Pa. 1982).

Substance dependency-related commitments

Pennsylvania’s Drug and Alcohol Abuse Control Act, 71 Pa. Stat. Ann. § 1690.101 to § 1690.115, provides, “Except as provided in section 12.1 of this act, admissions and commitments to treatment facilities may be made according to the procedural admission and commitment provisions of the act of July 9, 1976 (P.L. 817, No. 143), known as the ‘Mental Health Procedures Act.’ [50 P.S. § 7101 et seq.]” (internal footnote omitted).  Accordingly, the procedures discussed above apply in substance dependency-related commitments as well.

As to minors

Mental health-related commitments

The procedures applicable to adults also apply to juveniles subject to involuntary commitment matters due to mental health. See In re S.C., 421 A.2d 853, 857 (Pa. Super Ct. 1980).  But there are also provisions specific to minors, discussed below.

Objections to continued inpatient treatment

Minors who are at least 14 years of age but younger than 18 have a right to counsel in matters related to objecting to continued inpatient treatment per 35 Pa. Stat. Ann. § 10101.1(a)(7):

When a petition is filed on behalf of a minor fourteen years of age or older and under eighteen years of age who has been confined for inpatient treatment on the consent of a parent or legal guardian and who objects to continued inpatient treatment by requesting a withdrawal from or modification of treatment, the court shall promptly appoint an attorney for the minor…

Under this provision, “inpatient treatment” is defined as “all mental health treatment that requires full-time or part-time residence in a facility that provides mental health treatment.” Id. at § 10101.1(b).

Withdrawal from voluntary inpatient treatment

Where a minor is younger than 14 years of age and was admitted on a voluntary basis, “[their] parent, legal guardian, or person standing in loco parentis” may request that the minor be released or that their treatment be modified, for example, “afforded treatment constituting a less restrictive alternative”. 50 Pa. Stat. Ann. § 7206(b).  The petition for withdrawal or modification is filed in the Juvenile Division, and “[t]he court shall promptly appoint an attorney for such a minor person and schedule a hearing to determine what inpatient treatment, if any, is in the minor’s best interest.” Id.

Substance dependency-related commitments

The relevant statute provides:

A parent or legal guardian who has legal or physical custody of a minor may petition the court of common pleas of the judicial district where the minor is domiciled for commitment of the minor to involuntary drug and alcohol treatment services, including inpatient services, if the minor is incapable of accepting or unwilling to accept voluntary treatment.

71 Pa. Stat. Ann. § 1690.112a(a).  The court shall appoint counsel upon the filing of such a petition. Id. at (b).