Representing Children in Mental Disability Proceedings

Abstract

This article explores the legal and ethical issues arising from the representation of children in mental disability proceedings. The article begins by identifying the different types of these judicial and administrative proceedings in California and then briefly discusses the child's due process rights under the California constitution and state laws in each context. However, the primary focus of the article is upon the special ethical issues facing the lawyer/advocate who represents the child in mental disability proceedings: What is the role of the lawyer/advocate for the child? How are professional obligations to advance the client's interests and preserve client confidences affected by the fact that the client is a child who may also have a mental illness or other mental disability? How should the lawyer/advocate determine the client's competency to instruct him or her? If the lawyer/advocate concludes that the child client's competency indeed is impaired, should he or she make decisions in the client's "best interests," as would a guardian ad litem (GAL)?

In considering these questions, the article draws upon professional responsibility standards for representing clients with mental disabilities and clients who are children. Particular use is made of the extensive literature on the role of counsel for children. The article also discusses the attorney's obligation under California state law in dependency court to "advocate for the protection, safety and physical and emotional well-being" of a child client and its implications for the attorney providing representation in mental disability proceedings.

The discussion next turns to the emerging field of therapeutic jurisprudence. In what ways can or should the lawyer/advocate act "therapeutically" to promote the child client's mental health? Legal representation of children in mental disability proceedings has been criticized as counter-therapeutic, reinforcing the child's denial of mental disability and increasing conflict with parents and therapists. The article explores the difficulty of determining the child client's "therapeutic" needs, as opposed to legal interests, and considers whether effective legal representation, by empowering child clients, can be therapeutic.

The article concludes by discussing special concerns for representing children in mental disability proceedings, including addressing the client's and family's attitudes toward mental disability, and resisting the temptation to play therapist rather than lawyer. Finally, the article recommends and outlines special training to qualify lawyer/advocates for this important and challenging work.