March 2009:Abstract:
Do court appointed attorneys who represent juveniles in involuntary civil commitment proceedings understand their role? Should parents of mentally ill juveniles be permitted to voluntarily admit their children into a psychiatric hospital without judicial review? Are court appointed attorneys adequately prepared and properly compensated when they undertake the task of representing mentally ill juveniles? This article will explore these and other issues that concern the representation of mentally ill juveniles. Fifty attorneys were surveyed to seek their opinions on these and other questions relating to the civil commitment process.
Civil commitments have long been difficult legal actions to classify, since they are situated conceptually in both civil and criminal law. The civil commitment threatens a loss of personal liberty and self-determination, calling for due process considerations more akin to a criminal proceeding. Add to the situation the special concerns that must be given to a child subjected to the civil commitment process, and the result is one of the most challenging and controversial areas of civil law.
Civil commitment is the procedure by which a court can order a mentally ill person to be placed in a psychiatric facility for treatment. Over the years, statutes and court decisions concerning the civil commitment of juveniles have revealed several unresolved issues and contested procedures. many concerns have been raised by attorneys representing juveniles in civil commitments.
Who speaks for the mentally ill child alleged to be in need of psychiatric hospitalization, his parents, his lawyer, or the community mental health professional? Should attorneys be adequately compensated to insure competent representation? Are attorneys in large numbers committing malpractice because of their failure to be adequately prepared at the civil commitment hearing? Have we taken a step backwards in insuring competent representation by assigning cases to court appointed attorneys on the day of the civil commitment hearing?
There are a variety of approaches that the states have taken in civil commitment legislation and practice. No one method of providing and paying for counsel or determining the rights and responsibilities of the juvenile has been agreed on by a majority of the states. Civil commitment law appears to remain an area ripe for revision of its standards and modernization of its procedures. This article will explore where we have been, where we are now, and where we should move to improve the administration of the civil commitment process for juveniles.
For the remainder of this paper: by Donald H. Stone, University of Baltimore - School of Law
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