In the civil commitment arena, where a mentally ill person is allegedly a danger to the life or safety of themselves or of others and in need of in-patient care or treatment, there are two groups assigned to protect the people: one, the hospital presenter, who is responsible for investigating and presenting evidence and testimony at a hearing to secure admission to a psychiatric facility as an involuntary patient, the other, the lawyer, who represents and defends the allegedly mentally ill person from such involuntary civil commitment confinement. These are their stories.
The attorney representing a mentally ill client at the involuntary admission hearing (IVA) often faces challenges in defining his role and responsibility toward his client and the community at large. There are occasions when a client's mental disorder makes it impossible to effectively communicate his desires and wishes to his lawyer. The client's ability to aid his attorney in preparing an adequate defense to the application for involuntary admission is severely compromised. There are occasions at the civil commitment hearing when the individual subject to the commitment is silent as a result of cognitive impairment, which places the attorney in the position of advocating a position without the input of the client. The hospital presenter who seeks the involuntary confinement into the psychiatric hospital is opposed by an attorney without clear instructions from the client as to how to proceed.
This article will discuss and analyze the attorney's role in light of the silent or incapacitated mentally ill client. An historical perspective of the traditional role of counsel will be examined and compared with the guardian ad litem role. The American Bar Association (ABA) standards will be scrutinized to seek guidance in understanding the duty an attorney owes to competently represent his client and keep him informed as to the proceedings and abide by decisions made by the client in the legal proceedings at hand. When a client is a person under a disability, the role and responsibility of counsel are often complex and confused, thus this article will examine court decisions addressing the constitutional right to counsel, as well as seek guidance from state statutes addressing right to counsel at the civil commitment hearing as to the role of counsel at the hearing.
Giving a Voice to the Silent Mentally Ill Client: An Empirical Study of the Role of Counsel in the Civil Commitment Hearing, 70 UMKC L. Rev. 603 (2002)