Right to counsel
Generally
The same code section that governs civil commitments in Idaho also covers court-ordered outpatient treatment. See Idaho Code Ann. § 66-317 (defining “Mentally ill” as “a condition resulting in a substantial disorder of thought, mood, perception, or orientation that grossly impairs judgment, behavior, or capacity to recognize and adapt to reality and requires care and treatment at a facility or through outpatient treatment.”) (emphasis added). The court must appoint counsel for indigent respondents in involuntary treatment matters under Idaho Code Ann. §§ 66-329(7).
Guardianship Context
For persons who lack the capacity to make informed decisions about treatment for themselves due to mental illness, the Idaho Code gives indigent respondents the right to an attorney once a petition is filed to appoint a guardian to handle treatment decisions. Idaho Code Ann. § 66-322(e). The statute also establishes that “[a]n opportunity to be represented by counsel shall be afforded to every proposed patient, and if neither the proposed patient nor others provide counsel, the court shall appoint counsel in accordance with chapter 8, title 19, Idaho Code.” Idaho Code Ann. § 66-322(f).
Guardians and conservators of adults with developmental disabilities cannot, without court approval, “(a) [c]onsent to medical or surgical treatment that results in sterilization, unless it is necessary to protect the physical health of the respondent and would be prescribed for a person who does not have a developmental disability;” nor “(b) [c]onsent to experimental surgery, procedures or medications.” Idaho Code Ann. § 66-405(10). Although Idaho Code Ann. § 66-404(3) provides a right to counsel upon the filing of a petition for guardianship of developmentally disabled person, it is not clear whether this right extends to other hearings, such as those regarding court approval of certain medical decisions.
As to minors
As to minors, psychosurgery or electroconvulsive treatment shall not be performed on any child unless the court finds “that the treatment is necessary to prevent serious harm to the child.” Idaho Code Ann. § 16-2423(3). And under Idaho Code Ann. § 16-2429(1), children have the right to court appointed counsel in such matters provided that the child and their parents cannot afford counsel.
