Right to counsel

Involuntary treatment due to mental health

The same right to counsel provision applicable in civil commitment matters applies in matters related to involuntary outpatient treatment:  “Every respondent alleged to be subject to involuntary admission on an inpatient or outpatient basis shall be represented by counsel. If the respondent is indigent or an appearance has not been entered on his behalf at the time the matter is set for hearing, the court shall appoint counsel for him.” 405 Ill. Comp. Stat. 5/3-805.

The court will make such appointments first from the Guardianship and Advocacy Commission.  If no attorney from the Guardianship and Advocacy Commission is available, then the public defender shall be appointed.  Finally, if no public defender is available the court will appoint an attorney licensed to practice law in the State.  Private attorneys so appointed will be paid a fee in an amount determined to be reasonable by the court upon the filing of a verified statement of legal services.  The county will pay all or any portion of this fee that the client is unable to pay. Id.

The statutory provision has been read as providing the right to effective assistance as well. See Carmody v. Carmody, 653 N.E.2d 977, 984 (Ill. App. 1995) (holding that “the legislature could not have intended to provide an individual subject to involuntary commitment with the right to counsel and to permit that counsel to be prejudicially ineffective.).

Involuntary treatment of minors

A minor 16 years of age or older may self admit to a mental health facility. 405 Ill. Comp. Stat. 5/3-502.  Alternatively, a parent, guardian, or person in loco parentis may apply to admit the minor, as well as the DCFS in the case of a youth in care. 405 Ill. Comp. Stat. 5/3-503.  If the admission is of an emergency nature and a parent or guardian cannot be located after diligent efforts, “an interested person 18 years of age or older” may consent to the admission. 405 Ill. Comp. Stat. 5/3-504.

When an application for involuntary admission is sought under sections 503 or 504, a minor 12 years of age or older may object on their own behalf, an interested person 18 years of age or older may object on behalf of a minor younger than 12, 405 Ill. Comp. Stat. 5/3-507, or a parent, guardian, or person in loco parentis may request discharge of the minor. 405 Ill. Comp. Stat. 5/3-508.

Upon receiving a written objection or request for discharge, the minor should be discharged “at the earliest appropriate time” unless the objection is withdrawn, a minor 12 or older objects to their parent or guardian’s discharge request, or a petition for review of the admission and 2 certificates are filed with the court. 405 Ill. Comp. Stat. 5/3-507; 5/3-508.  When a petition for review of the admission is filed with the court, the right to counsel attaches:

Upon receipt of a petition filed pursuant to Section 3-507 or 3-508, the court shall appoint counsel for the minor and shall set a hearing to be held within 5 days, excluding Saturdays, Sundays and holidays.

405 Ill. Comp. Stat. 5/3-509.  If the court determines that hospitalization is not necessary, the minor is not likely to benefit from inpatient treatment, or that a less restrictive alternative is appropriate, it “shall order the minor discharged” and may “order alternative treatment pursuant to Section 3-812”, 405 Ill. Comp. Stat. 5/3-510, which may include outpatient treatment.

Involuntary treatment for substance use disorders: No such proceeding

No provisions specific to the involuntary treatment of individuals for substance use disorders were located.  In fact, the mental health provisions explicitly exclude substance abuse disorders. See 405 Ill. Comp. Stat. 5/1-129 (“‘Mental illness’ means a mental, or emotional disorder that substantially impairs a person’s thought, perception of reality, emotional process, judgment, behavior, or ability to cope with the ordinary demands of life, but does not include a developmental disability, dementia or Alzheimer’s disease absent psychosis, a substance use disorder, or an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”) (emphasis added).