Right to counsel

Generally

There is a right to counsel for minor and adult respondents in a variety of involuntary treatment matters.

Due to developmental disabilities

The code covering the commitment of those with developmental disabilities permits a court to “order a respondent to be placed in a community treatment plan as a less restrictive alternative to commitment to a residential facility.” Mont. Code Ann. § 53-20-110.  Accordingly, the same procedure used to involuntary commit an individual due to developmental disabilities can be used to order involuntary treatment on an outpatient basis.

In proceedings for the involuntary “commitment, recommitment, or emergency commitment” of a developmentally disabled individual to a residential facility, “the court shall” direct the state public defender’s office to appoint counsel for the individual pursuant to the MPDA. See Mont. Code Ann. § 53-20-112(3). See also § 47-1-104(4)(b)(v) (implementing provision of MPDA).

Upon request, the court shall also direct the state public defender’s office to appoint counsel for the parents or guardian, if determined to be indigent pursuant to MPDA eligibility rules. See § 53-20-112(3). See also § 47-1-104(4)(a)(vii) (implementing provision of MPDA). See generally § 47-1-111 (MPDA eligibility rules).

These provisions seem to apply to both adult and minor respondents, as the section covering procedural rights in involuntary commitment/treatment matters related to developmental disability states that “the parents or guardian of a respondent has the right to: … be represented by counsel in any hearing”. Mont. Code Ann. § 53-20-112(2).

Due to mental health

Similarly, the section of the code covering the commitment of individuals due to a “mental disorder” defines “Commitment” broadly to mean “an order by a court requiring an individual to receive treatment for a mental disorder.” Mont. Code Ann. § 53-21-102(4).  Furthermore, Mont. Code Ann. § 53-21-127(3)(b) specifically permits the court to “commit the respondent to a community facility…”, and the court is required to “choose the least restrictive alternatives necessary to protect the respondent and the public and to permit effective treatment.” Id. at (5); see also Mont. Code Ann. § 53-21-150 (“If the court orders a treatment plan under this section as a condition of a commitment for treatment in a community facility, program, or course of treatment, the chief medical officer of the facility . . . at which the respondent is treated as an outpatient. . . shall submit a treatment plan, including any outpatient treatment recommendations.”) (emphasis added).

A respondent in matters related to involuntary treatment or commitment due to mental health has the right to counsel under § 53-21-116, which states, “If the person is indigent or if in the court’s discretion assignment of counsel is in the best interest of justice, the judge shall order the office of state public defender, provided for in [section 1], to immediately assign counsel to represent the person at either the hearing or the trial, or both.” (emphasis added).  Pursuant to Section 53-21-119(1), the right to counsel cannot be waived.

Nothing in the mental health code indicates that its involuntary commitment/treatment provisions are restricted to adults, as the definition of “Respondent” is not age restricted:  Section 53-21-102(18) states, ” ‘Respondent’ means a person alleged in a petition filed pursuant to this part to be suffering from a mental disorder and requiring commitment.”

Due to substance dependency

Again, the same procedures used to involuntarily commit someone for residential treatment due to substance dependency can be used to order involuntary treatment on an outpatient basis.  “Treatment” is defined under the statute to mean “the broad range of emergency, outpatient, intermediate, and inpatient services and care, including diagnostic evaluation, medical, psychiatric, psychological, and social service care, vocational rehabilitation, and career counseling, which may be extended to chemically dependent persons, intoxicated persons, and family members.” See Mont. Code Ann. § 53-24-103(13).

There is a right to counsel in these matters pursuant to Mont. Code Ann. § 53-24-302(9) (“The court shall inform the person . . . of the person’s right to . . . have assigned counsel pursuant to the Montana Public Defender Act [MPDA], if the person wants the assistance of counsel and is unable to obtain private counsel.”); see also § 47-1-104(4)(a)(ix) (permitting appointment for an indigent person “as provided in” § 53-24-302).  Further, “[i]f the court believes that the person needs the assistance of counsel, the court shall . . . assign counsel . . . regardless of the person’s wishes.”  § 53-24-302(9).

The sections covering the involuntary commitment and recommitment of those suffering from substance dependency, and the associated right to counsel, seem to apply to minors. See Mont. Code Ann. § 53-24-302(2), (7) (providing that notice should be served on a parent or guardian if the respondent is a minor).

In the adult guardianship context

In the context of adult guardianship, an individual who is subject to a guardian’s petition for involuntary mental health treatment “is entitled to the assignment of counsel, in accordance with the provisions of the” MPDA.  See Mont. Code Ann. § 72-5-322(2).  To learn more about the right to counsel in adult guardianship and conservatorship matters, please see Montana, Legislation, Guardianship/Conservatorship of Adults – Protected Person.