Right to counsel

Generally

Adults and minors subject to involuntary commitment matters have the right to counsel. It appears as though commitment may be sought due to mental health concerns but not due to substance dependency or alcoholism. There does not appear to be a procedure for a minor to object to an admission to which their parent or guardian consented on their behalf, for which the right to counsel may attach.

As to adults

An individual may be involuntarily admitted due to “Mental disorder”, which is defined as “a behavioral or emotional illness that results from a psychiatric disorder” and which “includes a mental illness that so substantially impairs the mental or emotional functioning of an individual as to make care or treatment necessary or advisable for the welfare of the individual or for the safety of the person or property of another.” Md. Health-General Code § 10-101(i). Specifically excluded from the definition is intellectual disability. Id.

Indigent individuals subject to civil commitment matters due to their mental health are entitled to representation. The public defender shall represent an indigent individual in “any other proceeding” where “confinement under a judicial commitment … in a public or private institution may result.”  Md. Code Crim. Proc. § 16-204(b)(1)(iv).

In Dorsey v. Solomon, 435 F. Supp. 725 (D. Md. 1977) (finding federal due process and equal protection right to counsel and notice for involuntarily committed persons found not guilty by reason of insanity), the court referenced a decision by a Maryland nisi prius court which the Attorney General agreed to follow, establishing that the court would appoint counsel for an indigent prospective civil committee without requiring that the individual actually request counsel. Id. at 733 [citing Briggs v. Mandel, Civil No. 54644 (Circuit Court of Baltimore City, Feb. 28, 1975); Regulation 10.04.03 of the State Department of Health and Mental Hygiene.]. It appears that provision still exists in a Department of Health and Mental Hygiene regulations, which states the individual is to be provided:

Notice of the individual’s right to consult with an attorney of the individual’s choice and, if the individual is unable to afford an attorney, the availability of representation at the hearing through the Office of the Public Defender, Mental Health Division . . . .

Md. Code Regs. 10.21.01.06. (2013).

Involuntary treatment in the context of commitment

Once in an institution, an individual only has the right to “request assistance from a lay advisor” prior to a panel decision on whether to involuntarily administer medication. Md. Health-General Code Ann. § 10-708(e)(2)(iv). After the panel decision, the individual must be informed of the right to “request representation or assistance of a lawyer or other advocate of the individual’s choice.” Md. Health-General Code Ann. § 10-708(i)(4)(ii). Maryland’s highest court has interpreted this provision to provide a right to counsel upon request. To learn more about this case, see Maryland, Litigation, Involuntary Medical Treatment: MD high court finds right to counsel for patients facing forced medication.

As to minors

Generally

In Johnson v. Solomon, 484 F. Supp. 278 (D. Md. 1979), a federal court, relying in part on Maryland’s Juvenile Causes Act (Md. Code Ann., Cts. & Jud. Proc., § 3-813 [formerly § 3- 821]) and Maryland Rule 11-106 (formerly Rule 906) established the right to counsel for youth in juvenile mental health commitment hearings, as well as in mandatory six-month reviews for individuals confined to a mental hospital.

Objections to a voluntary admission made on minor’s behalf

No such proceeding

A minor sixteen years of age or older may apply on their own behalf for their admission, Md. Health-General Code Ann. § 10-609, or a parent/guardian may apply on the minor’s behalf for a “voluntary” admission. Md. Health-General Code Ann. § 10-610. There does not appear to be a procedure through which a minor can object to a voluntary admission made on their behalf by a parent or guardian, for which the right to counsel may ordinarily attach.