Right to Counsel

Indigent adult patients and proposed patients have the right to counsel in involuntary outpatient treatment matters, as do certain minors.

Generally

Immediately upon arriving at an emergency receiving facility, a proposed mental health patient is informed of their right to appointed counsel if indigent. Ga. Code. Ann. § 37-3-44.  Within five days after the filing of a petition for a court ordered evaluation under Ga. Code. Ann. § 37-3-61, the court shall provide the patient with notice of the hearing which informs them of their right to counsel. Ga. Code. Ann. § 37-3-62.

Under Ga. Code. Ann. § 37-3-81.1, the court may order inpatient or outpatient mental health-related treatment on an involuntary basis.  Outpatient treatment may be ordered for any period not to exceed one year. Ga. Code. Ann. § 37-3-93(a).  If treatment is needed beyond the initial period authorized, a hearing is held at which the patient is also afforded counsel if indigent. Ga. Code. Ann. § 37-3-93(b).

The right to counsel also applies in appeals. See Ga. Code Ann. § 37-3-150. (“The patient shall have a right to counsel or, if unable to afford counsel, shall have counsel appointed for the patient by the court.).

As to substance dependency

There is also a right to counsel in involuntary outpatient treatment matters due to chemical dependency. See Ga. Code. Ann. §§ 37-7-44 (upon arrival at emergency receiving facility); 37-7-62 (hearings on petitions for court-ordered evaluations); 37-7-92 (outpatient treatment hearings); 37-7-93 (hearings on continued involuntary treatment beyond initial period authorized).

As to minors

“Voluntary” treatment where consent given by parent or guardian

Seemingly no procedure to object.

A parent or guardian may consent on behalf of an individual who is younger than 18 years of age as to both mental health-related, Ga. Code. Ann. § 37-3-20(a), and substance dependency-related treatment, § 37-7-20, and must consent on behalf of a minor if inpatient treatment is sought.

Although patients 12 years of age or older may consent on their own behalf, at least to initial observation and diagnosis at a facility, id., it does not appear that a minor whose parent or guardian consented to their admission or treatment have the ability to object (a process to which the right to counsel may attach), as Sections 37-3-22 and 37-7-22 states:

A voluntary patient, other than a minor child for whom admission has been sought by his parents or guardian, who has admitted himself to a facility … or any voluntary patient’s personal representative, legal guardian, parent, spouse, attorney, or adult next of kin may request such patient’s discharge in writing at any time after his admission.

(emphasis added).

Where treatment is sought in Child in Need of Services case

Right to counsel applies.

The involuntary mental health-related commitment or treatment of a child can be sought as part of a Child in Need of Services (CHINS) case. See Ga. Code Ann. § 15-11-451(d) (“If, during the comprehensive services plan hearing or any subsequent review hearing, the court determines that a child is mentally ill or developmentally disabled and meets the requirements for civil commitment pursuant to Chapters 3 and 4 of Title 37, such child may be committed to an appropriate treatment setting.”).

A child subject to a CHINS matter has the right to counsel, and the right extends to appeals. Ga. Code Ann. § 15-11-402(a), (e).