Right to Counsel

Individuals subject to petitions for commitment have the right to counsel, regardless of indigency. See e.g., D.C. Code § 21-543.

“Commitment” includes involuntary outpatient mental health treatment

A “commitment” due to mental health concerns may be sought where

the Court or jury finds that the person is mentally ill and, because of that mental illness, is likely to injure himself or others if not committed, the Court may order the person’s commitment to the Department or to any other facility, hospital, or mental health provider that the Court believes is the least restrictive alternative consistent with the best interests of the person and the public.

D.C. Code § 21-545.  While this Chapter does not define “commitment” or “least restrictive alternative,” see D.C. Code § 21-501, courts have read this provision to include both inpatient and outpatient treatment. See e.g., In re Edmonds, 96 A.3d 683, 685 (D.C. Ct. App. 2014) (“Following a jury trial, in which Edmonds was represented by trial counsel, Edmonds was found mentally ill and likely to injure himself or others under D.C.Code § 21–544. The Honorable Laura Cordero, who presided over the jury trial, entered an order committing Edmonds for outpatient mental health treatment for one year on September 30, 2010”).

Per D.C. Code § 21-543(a):

The person alleged to be mentally ill and, because of the mental illness, likely to injure himself or others shall be represented by counsel in any proceeding before the Commission or the court, and if he fails or refuses to obtain counsel, the court shall appoint counsel to represent him…

(emphasis added).  However, the right does not extend to examinations.  In Matter of Holmes, the court held that the fact that Commission on Mental Health members examined the appellant before the hearing did not make the examination a “proceeding” within the meaning of § 21-543 such that the appellant was entitled to appointed counsel. 422 A.2d 969, 972 (D.C. 1980).

Superior Court Rules of Procedure for Mental Health also provide for the right to counsel

Rule 12 of the Superior Court Rules of Procedure for Mental Health provides the right to counsel for “[a]ny person who is involuntarily hospitalized or the subject of any petition filed pursuant to D.C. Code §§ 21-501 – 592 (2004 Supp.) or § 24-502 (2001 Supp.).” SCR M.H. Rule 12(a)(1).  This includes those detained under emergency procedures as well as those who have not been detained on an emergency basis but are the subject of a petition for judicial commitment. See Rule 12(a)(2).

Rule 2A requires that a person detained on an emergency basis is informed of their right to counsel.  SCR M.H. Rule 2A [“A person detained pursuant to D.C. Code § 21-521 (2004 Supp.) shall be informed of his or her right to counsel upon admission to a hospital, a facility certified by the Department of Mental Health (Department) for emergency detention, or the Department.”].

The right is not contingent on indigency

Although the appointment of counsel in the mental health commitment context is not contingent upon indigency, the court may direct counsel’s compensation to be charged against the estate of the individual for whom counsel was appointed. D.C. Code § 21-543.

The right extends to situations where revocation of outpatient status is sought 

Finally, D.C. Code § 21-548(b)(4) provides that the right to counsel also applies in matters related to revocation of outpatient status.  In other words, it extends to situations where a change from outpatient to involuntary inpatient services is sought due to safety concerns.

Involuntary medical treatment in adult guardianship context

See Legislation, Guardianship/Conservatorship of Adults – Protected Person