The "rights revolution," sparked by the United States Supreme Court under the leadership of former Chief Justice Earl Warren, has abated as the Court modifies and in some instances emasculates the constitutional rights afforded criminal defendants. While the Supreme Court assumes a more “moderate" position regarding the rights of criminal defendants and takes a closer look at due process decisions generally, the "rights revolution" has had substantial spillover effect in the case of individuals confined involuntarily in mental institutions. The courts, especially federal courts, have recognized the constitutional basis of procedural and substantive safeguards for individuals subject to commitment in state mental institutions. Judicially mandated procedural safeguards for committing persons and insuring their rights to proper treatment once confined have necessitated widespread legislative reform of state mental health statutes. One of the rights now afforded individuals subject to involuntary civil commitment is representation by legal counsel. By one count, forty-two of the states now provide for legal representation, and the presence of defense counsel or a guardian ad litem in civil commitment proceedings is now routine. By statute, the majority of states require that legal counsel be appointed for individuals subject to involuntary commitment. Where statutes fail t6 provide for counsel, counsel may still be required as a matter of constitutional right. West Virginia, by statute, specifically provides that counsel be appointed to represent the mentally ill in a commitment hearing and makes mandatory counsel's presence at the hearing. While the right to counsel in civil commitment hearings is now secured by statutory provision buttressed by judicial suggestion that counsel is constitutionally required, there remains a question concerning the appropriate role of an attorney in representing the mentally ill. This article will explore the function of the attorney assigned or engaged to represent a client in a civil commitment hearing. The author will present specific suggestions for a more adequate and effective representation of the mental patient/client. Finally, the article will explore other alternatives to the present system of representation of the mentally ill in West Virginia. Exposing the inadequacies in the legal representation of the mentally ill has been left in large part to legal commentators. The civil commitment process historically has been of little concern either to the public or to the practicing bar The low visibility of the civil commitment process can be attributed to both social and legal factors, including the tendency to ignore complex social problems. For years, the mentally ill were warehoused in geographically remote state mental institutions, in part, to isolate and distance ourselves from social "undesirables." The tendency to hide the problem of the mentally ill is also reflected in the legal process. Civil commitment proceedings and records are not open to public scrutiny. Of even greater significance is the fact that civil commitment hearings are held without juries. In order to provide a factual framework in which to analyze the role of the lawyer, the Appendix contains transcripts of three civil commitment hearings. The hearings reported in the Appendix and those observed by other legal commentators demonstrate that assigned counsel frequently serve as a "legitimizing force" in the commitment process. Attorneys often do little more than insure that the legal proceedings satisfy statutory and constitutional requirements. Few attorneys understand the nature of mental illness, the social, political, and psychological issues which are raised by "labeling" an individual mentally ill. It is with these issues in mind that this article suggests a more active role for the lawyer in the civil commitment hearing and a more vigorous defense for the mentally ill client. The decision to confine the mentally ill against their will is not an isolated act solely dependent upon the family and a consenting psychiatrist. The determination to confine a person for the protection of society or from harm that the person might cause himself or herself should be considered in a broader social, political, historical, and legal context. While a complete socio-political-historical perspective is beyond the scope of this article, a brief sketch of the history of institutionalization of the mentally ill will provide the attorney with a point of departure for further study.
James R. Elkins,
Legal Representation of the Mentally Ill,
W. Va. L. Rev.
Available at: https://researchrepository.wvu.edu/wvlr/vol82/iss2/3