1977, June, Pg. 942. New Advocacy In Mental Health Representation.

• Author: by Gregory R. Piché

6 Colo.Law. 942

Colorado Lawyer

1977.

1977, June, Pg. 942.

New Advocacy In Mental Health Representation

942Vol. 6, No. 6, Pg. 942New Advocacy In Mental Health Representationby Gregory R. PichéGregory R. Piché, Colorado Springs, is affiliated with the firm of Spurgeon, Haney & Howbert. He is also the chairman of the Mental Health Committee of the Colorado Bar Association.943The role of an attorney in the process of the civil commitment of the mentally ill in Colorado has historically been illdefined, confused and insubstantial. Prior to the implementation of the Mental Health Act, C.R.S. 1973, § 27-10-101, et seq., on July 1, 1975, attorneys were appointed as

guardians ad litem to represent those persons alleged to be mentally ill during their adjudication proceedings.(fn1) The statutory obligation of the guardian ad litem was limited to the submission of a brief report to the court concerning the identification of the "respondent" and his financial resources, to advising the respondent of his right to a hearing and to attendance at all proceedings.(fn2) No further guidelines were given concerning the duties and obligations of the attorney in either the hearing before the medical commission or the court.(fn3) Each attorney representing a respondent in a civil commitment case was left to make his own determination of how much "representation" his client would receive in the commitment proceedings, but the attorney's participation was often constrained to simple compliance with the statute because of the penurious remuneration provided to the attorney for his services.(fn4) The respondent, who was often not present at the adjudication hearing, rarely participated in any meaningful way in the commitment process. The guardian ad litem, in the face of seemingly unassailable, alien and esoteric expert psychiatric opinion and jargon, frequently acquiesced to the judgment and expertise of the examining physicians.(fn5)

The Role of Guardian Ad LitemErsatz representation of respondents in civil commitment actions engendered several considered treatises critical of the guardian ad litem role in Colorado.(fn6) "The important point is that the statutory duties imposed upon the Colorado attorney relate to the acquisition of knowledge that has very little to do with the complex policy issues involved in an involuntary commitment case. Observation of these proceedings reveals that the presence of the attorney is only a gesture toward the protection of civil liberties."(fn7)

The appointment of attorneys as guardians ad litem in incompetency proceedings grew out of the early common law practice of nominating attorneys to prosecute or defend litigation on behalf of minors. "Ad litem" literally means "for the suit."(fn8) The paradox in appointing a guardian ad litem to represent a respondent in an adjudication of incompetency proceeding is that the respondent's incompetency,

944and hence his need for a guardian ad litem, is the very issue to be determined.

The investigating and reporting duties assigned to the guardian ad litem under the previous statute were tangential at best to the attorney's traditional role as an advocate. New constitutional and statutory perspectives have recast the attorney's role in civil commitment proceedings as adversary and advocate.

The old guardianship role has just about lost any credibility that it may have had earlier. I believe, as a matter of sound, legal practice, that the initial posture for lawyers who represent a client is simply to represent what their client says the client wants, and to allow some other person, judge, panel, jury, or other adjudicating tribunal, to make the decision. It just does no good to have a lawyer making that decision and have a lawyer becoming a guardian and not an advocate.(fn9)

The impetus for this change was the re-examination of involuntary civil commitment proceedings in light of the substantial due process developments in the criminal law during the 1960's. The great dichotomy in procedural safeguards available to protect the liberty of those accused of crimes and those alleged incompetent eroded judicial confidence in the doctrine of "parens patriae." The concept of the sovereign as "parent" of its subjects, although anathema to our political system, is the theoretical justification for vastly diluted procedure in both mental health and juvenile commitments. Paternal benevolence of purpose was thought to justify the distinction. Accordingly, as late as 1960, the Iowa Supreme Court perceived no "due process" issues in civil commitment.

He is being restrained of his liberty in that he is not free to come and go at will but such restraint is not in the way of punishment, but for his own protection and welfare as well as for the benefit of society. Such loss of liberty is not such liberty as is within the meaning of the constitutional provision that "no person shall be deprived of life, liberty or property without due process of law."(fn10)

Viewed from the perspective of the individual, the loss of liberty, whether beneficent or malevolent in inspiration, is no less a loss. In 1967, the United States Supreme Court reviewed the validity of parens patriae, from the individual's perspective, in the context of a juvenile commitment proceeding and rejected its primacy over the "due process" concerns of the Fourteenth Amendment of the U.S. Constitution by holding in In Re Gault(fn11) that there were certain minimum due process requirements, fundamental to a system of ordered liberty, necessary to be maintained in a juvenile commitment proceeding.

The right of the state as parens patriae to deny the child procedural rights available to his elders was elaborated...