Right to counsel

Adult respondents in mental health- and substance dependency-related civil commitment matters have the right to an attorney.  There is no mention of an indigency requirement.

Minor respondents may have the right to counsel in mental health-related matters, at least if they are emancipated or considered “of sufficient intelligence to understand and appreciate the consequences of the proposed surgical or medical treatment or procedures”, but the law is not clear.

Generally

A petition for involuntary commitment may be sought due to alleged mental health matters or alleged addiction to drugs or alcohol.  In either case, the person subject to the petition has the right to counsel. See Ark. Code Ann. § 20-47-212(a) (commitment due to mental health) and Ark. Code Ann. § 20-64-817 (commitment due to drug or alcohol addiction).  The mental health and public health code both use the same statutory language regarding appointment:

“If it appears to the court that the person sought to be involuntarily admitted is in need of counsel, counsel shall be appointed immediately upon filing of the original petition.”

Ark. Code Ann. § 20-47-212(a); § 20-64-820(a).  Although the statutory language makes it sound as though appointment of counsel is discretionary, the relevant provisions about notice to the respondent of their rights suggests that appointment is mandatory. Ark. Code Ann. § 20-47-211(1) (“he or she has the right to effective assistance of counsel, including the right to a court-appointed attorney”); § 20-64-817(1) (“That the person has the right to effective assistance of counsel, including the right to a court-appointed attorney”).

Waiver

Unlike in termination proceedings, this right is generally not waivable because an individual facing a proceeding questioning their mental health is unable to at the same time knowingly and voluntarily waive their rights. Honor v. Yamuchi, 820 S.W.2d 267, 271 (Ark. 1991) (“To determine that long-term custody is appropriate because the individual lacks the capacity to comprehend impending dangers, finding at the same time there has been a knowing and intelligent waiver, is patently inconsistent.”).  Additionally, the court borrows from the criminal context, applying the Anders standard in appeals from commitment proceedings, which requires the attorney to show that no genuinely appealable issue exists before permitting the attorney to withdraw as counsel. Adams v. Ark. Health and Hum. Servs., 291 S.W.3d 172, 174, 176 (Ark. 2009) (adding that it would “defy logic” to deny counsel on appeal to “endangered” adults subject to long-term custody orders).

Fees and costs

Regarding attorney’s fees, both statutes set a maximum amount of $150. Ark. Code Ann. § 20-47-212(b); § 20-64-820(a).  The Arkansas legislature has directed “[t]he quorum courts of each county [to] appropriate funds for the purpose of payment of the attorney’s fees provided for by this subchapter[.]” Ark. Code Ann. § 20-47-212(c); § 20-64-820(b); see also Ark. Code Ann. § 14-20-102(a)(1) (creating a “fund to be used for the purpose of paying reasonable and necessary costs incurred … in the representation of persons against whom involuntary admissions procedures for mental health or alcohol and narcotic commitments … have been brought[.]”).  The public defender is generally tasked with providing representation in these matters, see Ark. Code Ann. § 16-87-306, but the court has authority to appoint counsel on a pro bono basis. Ark. Code Ann. § 20-47-212(b); § 20-64-820(a).

As to minors

The provisions governing substance dependency-related civil commitment matters define “Person” as an individual who is 18 years of age or older. See Ark. Code Ann. § 20-64-801(6).  Accordingly, these provisions do not appear to apply to minors.

Conversely, nothing within the sections governing civil commitment for mental health reasons, explicitly limit their application to those 18 and older. See Ark. Code Ann. § 20-47-201 et seq.  So these procedures, including the associated right to counsel, presumably apply to minors, at least to emancipated minors and unemancipated minors who are “of sufficient intelligence to understand and appreciate the consequences of the proposed surgical or medical treatment or procedures”. Ark. Code Ann. § 20-9-602 (listing the individuals who are authorized to provide consent to medical treatments or procedures not prohibited by law).

As to other minors, § 20-9-602 indicates that “[a]ny parent, whether an adult or a minor” may consent to medical treatment on their child’s behalf, as can  “[a]ny person standing in loco parentis, whether formally serving or not, and any guardian, conservator, or custodian” on behalf of “[their] ward or other charge under disability”. Id.  Because no procedures expressly state that an unemancipated minor or minor ward is able to object to an admission to which their parent or guardian consented (which might trigger a right to counsel), these individuals presumably do not have the right to counsel.