In the Matter of the Mental Health of KGF, 2001 MT 140.

This case dramatically changes several things pertaining to how mental health commitment proceedings are handled. Generally, the Court, in a 4-1 decision written by Justice Nelson, found that attorneys must provide competent representation to every Respondent in an involuntary commitment action. The Court goes on at length discussing minimum standards that must be met in five areas:

1.      Appointment of competent counsel. Any attorneys representing a Respondent in an involuntary mental health proceeding should have specialized training in handling involuntary mental health proceedings. The Court also found that the Respondent has a right to counsel of their own choice. "Therefore, it is critical that the district court, upon appointment of counsel, provide the patient-respondent with clear and concise information describing the attorney's name and qualifications in order for the patient to then make an informed decision as to whether to accept appointed counsel, or for good cause shown and based on compelling reasons request the appointment of different counsel, or retain alternative representation."

2.      The initial investigation "before and after the required meeting with a patient, under 53-21-121(3), MCA, counsel should conduct a thorough review of all available records. Such inquiry must necessarily involve the patient's prior medical history and treatment, if and to what extent medication has played a role in the petition for commitment, the patient's relationship to family and friends within the community, and the patient's relationship with all relevant medical professionals involved prior to and during the petition process.". "counsel should be prepared to discuss with his or her client the available options in light of such investigations, as well as the "practical and legal consequences of those options."."Prior to or following the initial client interview, counsel should also attempt to interview all persons who have knowledge of the circumstances surrounding the commitment petition, including family members, acquaintances and any other persons identified by the client as having relevant information, and be prepared to call such persons as witnesses." The Court states that the attorney can (and should) request extensions beyond the five day hearing date if necessary.

3.      The client interview The Court requires that the attorney meet with the Respondent sufficiently prior to the hearing to be able to present effective representation. The Court then lists half a dozen topics that the attorney must specifically discuss with the Respondent.

4.      The right to remain silent After finding that the right to remain silent applies to a Respondent when being examined by a mental health professional, the Court states "We conclude that it is critical for the patient-respondent, via assistance of counsel, to be allowed to make a voluntary and knowing waiver of his or her right to remain silent prior to the commencement of this examination, see 53-21-119(1), MCA, or, in the alternative, that counsel must be present during the "examination" similar to a criminal interrogation or a civil deposition. We emphasize again that the right to counsel cannot under any circumstances be waived. See 53-21-119, MCA. We conclude, therefore, that it would be a patent due process violation for the "examination," as provided for under 53-21-123, MCA, to be conducted without the assistance of counsel as provided herein."

5.      Counsel as an advocate and adversary "The guidelines create the presumption that a client wishes to not be involuntarily committed. The ultimate decision of whether a patient-respondent should be involuntarily committed, therefore, should not be independently made by counsel."  "Thus, we conclude that pursuant to the foregoing guidelines, evidence that counsel independently advocated or otherwise acquiesced to an involuntary commitment--in the absence of any evidence of a voluntary and knowing consent by the patient-respondent--will establish the presumption that counsel was ineffective." "In the courtroom, an attorney should engage in all aspects of advocacy and vigorously argue to the best of his or her ability for the ends desired by the client."


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