Right to GAL and presumptive right to counsel at involuntary medical treatment hearing

In involuntary medical treatment matters of adults in need of services who are believed to be incapacitated, there is a presumptive right to counsel, at least in regards to the capacity determination.  If the adult is found incapacitated, a guardian ad litem (GAL) is appointed whose responsibility is “to determine the nature and extent of the medical treatment necessary for the benefit of the eligible adult and to supervise the rendition of such treatment.”  It is not clear whether the GAL must be an attorney.

Generally

Services must be provided consensually.

Under the Protective Services for Adults code in Missouri, assistance may be given when the eligible adult consents to services. See Mo. Ann. Stat. § 192.2440 (“When an eligible adult gives consent to receive protective services, the department shall assist the adult in locating and arranging for necessary services in the least restrictive environment reasonably available.”); see also § 192.2450 (“If an eligible adult gives consent to receive protective services and any other person interferes with or prevents the delivery of such services, the director may petition the appropriate court for an order to enjoin the interference with the delivery of the services.”).

If inability to consent 

Director may pursue guardianship or conservatorship through probate code

If an investigation reveals that the adult is likely to experience serious physical harm but is unable to consent to services, the director is authorized to pursue guardianship or conservatorship proceedings under chapter 475. Mo. Ann. Stat. § 192.2460(1). 

To learn about the right to counsel in adult guardianship matters, please see Missouri, Legislation, Guardianship/Conservatorship of Adults – Protected Person.

If “imminent risk of serious physical harm”, adult may be transported to facility for treatment

At hearings related to involuntary medical treatment, there is a presumptive right to counsel at hearings regarding capacity, and a guardian ad litem (GAL) must be appointed for adults found incapacitated.

If the adult is believed to be incapable of consenting and it is thought that following the guardianship/conservatorship procedures would result in the eligible adult “suffer[ing] an imminent likelihood of serious physical harm if not immediately placed in a medical facility for care and treatment”, “[a peace] officer may transport, or arrange transportation for, the eligible adult to an appropriate medical facility which may admit the eligible adult…” Mo. Ann. Stat. § 192.2465.

Upon being admitted to the facility, if the adult has a surrogate decision-maker (e.g., a health care power of attorney agent) who “has not given or has refused to give such consent” to the admission, the director or the head of the medical facility may file a petition seeking court authorization for specific medical treatment. Mo. Ann. Stat. § 192.2465.  Upon the filing of the petition, “[t]he court shall hold a hearing and issue its decision forthwith.” Id.  However, if treatment is “immediately or imminently necessary and any delay occasioned by the hearing provided in th[e] subsection would jeopardize the life of the person affected, the medical facility may treat the eligible adult prior to such court hearing.” Id.

The section goes on to specify the procedures that should be used at the hearings:

The court shall conduct a hearing pursuant to chapter 475 forthwith and, if the court finds the eligible adult incapacitated, it shall appoint a guardian ad litem for the person of the eligible adult to determine the nature and extent of the medical treatment necessary for the benefit of the eligible adult and to supervise the rendition of such treatment. The guardian ad litem shall promptly report the completion of treatment to the court, who shall thereupon conduct a restoration hearing or a hearing to appoint a permanent guardian.

Mo. Ann. Stat. § 192.2465(4).  It is not clear whether the GAL must be an attorney.  But because the above section references Chapter 475, which does provide a right to counsel to respondents for hearings on capacity (as well as for hearings related to petitions “for the rendition of emergency medical treatment under the provisions of section 475.123”) at Section 475.075, the adult has a presumptive right to counsel, at least in regards to the initial capacity determination.

Finally, the medical care provided under the section may not be mental-health related unless civil commitment procedures are followed. Mo. Ann. Stat. § 192.2465(5) (“The medical care under this section may not be rendered in a mental health facility unless authorized pursuant to the civil commitment procedures in chapter 632.”).  To learn more about the right to counsel in civil commitment matters, see Missouri, Legislation, Civil Commitment.