Right to counsel

Generally

Individuals have the right to an attorney in involuntary mental health treatment and commitment matters. Adults have the right to counsel in such matters sought due to alleged substance dependency, while minors between the ages of 14 and 17 merely have the right to a guardian ad litem (“GAL”). Because minors are entitled only to a GAL, and it appears that the GAL does not need to be an attorney, the right to counsel is classified as “qualified.”

Due to mental health

The Mental Health Code chapter governing “Civil Admission and Discharge Procedures: Mental Illness” indicates that an individual may be compelled to participate in treatment on either in inpatient or outpatient basis. See Mich. Comp. Laws 330.1400(f) (defining “involuntary mental health treatment” as “court-ordered hospitalization, assisted outpatient treatment, or combined hospitalization and assisted outpatient treatment as described in section 468.”). Under the chapter, “Mental illness” is defined as “a substantial disorder of thought or mood that significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.” Id. at (g). Accordingly, a separate provision governs involuntary commitment and treatment matters sought due to the respondent’s alleged dependency on alcohol or other substances, discussed below.

As to the right to counsel in involuntary commitment and treatment matters sought due to mental health, Mich. Comp. Laws § 330.1454 states:

(1) Every individual who is the subject of a petition is entitled to be represented by legal counsel.

(2) Unless an appearance has been entered on behalf of the subject of a petition, the court shall, within 48 hours after its receipt of any petition together with the other documents required by section 452, appoint counsel to represent the subject of the petition, except that if an individual has been hospitalized under section 423 or 438, counsel shall be appointed within 24 hours after the hospitalization.

(3) If, after consultation with appointed counsel, the subject of a petition desires to waive his or her right to counsel, he or she may do so by notifying the court in writing.

(4) If the subject of a petition prefers counsel other than the initially appointed counsel, the preferred counsel agrees to accept the appointment, and the court is notified of the preference by the subject of the petition or the preferred counsel, the court shall replace the initially appointed counsel with the preferred counsel.

(5) If the subject of a petition is indigent, the court shall compensate appointed counsel from court funds in an amount that is reasonable and based upon time and expenses.

(6) The supreme court may, by court rule, establish the compensation to be paid for counsel of indigents and may require that counsel be appointed from a system or organization established for the purpose of providing representation in proceedings governed by this chapter.

Waiver

Waiver of the right to counsel may only occur “in open court and after consultation with an attorney.” Further, the waiver must be rejected “if it appears that the waiver is not voluntarily and understandingly made.” In the event that the waiver of counsel is accepted, the court has discretion to appoint a guardian ad litem. Mich. Ct. R. Rule 5.732.

Appeals of individuals returned to hospital after authorized leave

In regards to appeals, “[w]hen an individual receiving involuntary mental health treatment has been returned to a hospital from an authorized leave in excess of 10 days, the director of the center must, within 24 hours, notify the court of the return and notify the individual of the right to appeal the return and have a hearing to determine the appeal. Mich. Ct. R. 5.743(B). The court must notify the individual’s attorney or appoint a new attorney to consult with the individual and to determine whether the individual desires a hearing. Id.

Guardianship context

Persons subject to guardianship also have the right to counsel in involuntary commitment matters.  Although a guardian has authority to consent on the protected person’s behalf for “medical, mental health, or other progressional care, counsel, treatment or service[,]” a guardian cannot consent to or approve of inpatient hospitalization unless the court has expressly granted this power in the court order. Mich. Comp. Laws § 700.5314(c).  If the protected person objects or actively refuses mental health treatment, the guardian must follow the procedures in the mental health code for involuntary mental health treatment. Id. 

Formal voluntary hospitalization: Provider objects to patient’s request to terminate treatment

A person “18 years of age or older may be hospitalized or otherwise treated as a formal voluntary patient if … [they] execute[ ] a written consent with the mental health facility for mental health treatment as a formal voluntary patient” or “[t]he full or limited guardian with authority to execute a written consent to mental health treatment, or a patient advocate authorized by the individual to make mental health treatment decisions under the estates and protected individuals code, 1998 PA 386, MCL 700.1101 to 700.8206, executes a written consent to provide mental health treatment.” Mich. Comp. Laws Ann. § 330.1415. But when a formal voluntary patient or their authorized agent provides “written notice of an intention to terminate the patient’s mental health treatment”, they “shall not be hospitalized or provided mental health treatment for more than 3 days, excluding Sundays and holidays, after” such notice is provided. Mich. Comp. Laws Ann. § 330.1419.

However, if the hospital director or provider believes “that the patient is a person requiring treatment and should remain in the hospital or continue to receive mental health treatment,” they may file a petition with the court in compliance with M.C.L.A. § 330.1434 [“Filing of petition for hospitalization or assisted outpatient treatment”]. See Mich. Comp. Laws Ann. § 330.1420. Treatment or hospitalization may continue pending hearings under Sections 451 to 465, id., in which case the right to counsel found in Mich. Comp. Laws § 330.1454 (discussed above) would attach.

Due to substance dependency

The statute governing “Substance Use Disorder Services” is also found within the Mental Health Code and uses much of the same terminology (e.g., “involuntary treatment”) discussed above. See Mich. Comp. Laws Ann. § 330.1260 to § 330.1287. Accordingly, it appears that an individual may be compelled to participate involuntarily in treatment for substance dependency on either an inpatient or outpatient basis. See also Mich. Comp. Laws Ann. § 330.1281c (“a court may order the respondent held for treatment for a period not to exceed 72 hours if the court finds by clear and convincing evidence that the person presents an imminent danger or imminent threat of danger to self, family, or others…”).

Mich. Comp. Laws Ann. § 330.1281b governs the procedure used to compel treatment and provides for a right to counsel at paragraph (2)(c):

If, after reviewing the contents of the petition and examining the petitioner under oath, it appears to the court that there is probable cause to believe the respondent may reasonably benefit from treatment, the court shall do all of the following:

…

(C) Notify the respondent that the respondent may retain counsel and, if the respondent is unable to retain counsel, that the respondent may be represented by court-appointed counsel at public expense if the respondent is indigent.

Mich. Comp. Laws Ann. § 330.1281b(2)(C).

As to minors

Right to guardian ad litem: Presumably the GAL need not be an attorney

Unlike the Mental Health Code chapter governing “Civil Admission and Discharge Procedures: Mental Illness”, which does not restrict its provisions to individuals 18 years of age or older or provide separate procedures governing minor respondents, the Substance Use Disorder Services chapter contains provisions specific to the treatment of juveniles. See Mich. Comp. Laws Ann. § 330.1266(1) (“A minor’s parent or person in loco parentis to a minor may petition the court requesting the court’s determination as to whether treatment and rehabilitation services are necessary for the minor.”); § 330.1260(1)(e) (defining a “Minor” as “an individual 14 or more years of age and less than 18 years of age.”). Upon receipt of a petition “requesting the court’s determination as to whether treatment and rehabilitation services are necessary”, the court shall appoint a guardian ad litem for the minor. Id. at (2).

The right to a guardian ad litem also extends to matters related to court review of the minor’s treatment plan, which must occur at various intervals. The minor has the right to object to the plan, and “[a]t the minor’s request, the minor’s guardian ad litem shall assist the minor in properly submitting the objection.” Mich. Comp. Laws Ann. § 330.1267(1), (3).

Unfortunately, the chapter’s definition section does not provide a definition for “guardian ad litem”, so it is not clear whether the GAL must be an attorney. See Mich. Comp. Laws Ann. § 330.1260. However, the section does make clear that “court” refers to the probate court. See § 330.1260(b). Chapter 5 of the Michigan Court Rules governs Probate Court. But Mich. Ct. R. Rule 5.121, found in the General Provisions and titled “Guardian ad litem; Visitor” simply states that “[t]he court shall appoint a guardian ad litem when required by law.” The subchapter containing Mental Health Rules also fails to address a GAL’s qualifications. See Mich. Ct. R. Rule 5.730. Previously, Chapter 5 contained a subchapter specific to juveniles, Subchapter 5.900 — “Subchapter 5.900 was deleted effective May 1, 2003, and many of its provisions relocated to subchapter 3.900.” Assuming then that Mich. Ct. R. Rule 3.916 [“Guardian Ad Litem”] is applicable, the GAL need not be an attorney.