1976, January, Pg. 21. The Developmentally Disabled in Colorado.

• Author: by Steven L. Zimmerman

5 Colo.Law. 21

Colorado Lawyer

1976.

1976, January, Pg. 21.

The Developmentally Disabled in Colorado

21The Developmentally Disabled in Coloradoby Steven L. Zimmerman and James Kurtz-PhelanThe care and treatment of the develop-mentally disabled are the subject of new legislation, C.R.S. 1973, § 27-10.5. This article continues the analysis of that legislation which was begun in last month's issue of The Colorado Lawyer.

Other Acts Amended

Sections 2 through 68 of the Act provide for two basic types of statutory changes. The first type alters a series of statutory provisions which had referred to "adjudication" of incompetency by referring to a "determination" of incompetency, to bring other statutes in line with the absence of an adjudicatory process. These statutes include provisions concerning death or incompetency of a customer of a payor or collecting bank,(fn1) effect of a lessee's death or incompetence,(fn2) powers and duties of a board licensing professional engineers,(fn3) grounds for denial, suspension, revocation, and probation of a child health associate,(fn4) revocation or suspension of a license to practice medicine,(fn5) denial, revocation or suspension of a license to practice physical therapy,(fn6) denial, revocation, or suspension of a certificate of practice for psychologists,(fn7) disciplining the licensed veterinarian,(fn8) effect of a decree upon obligations for support or maintenance of a spouse,(fn9) effecting the uniform mandatory disposition of detainers act,(fn10) dissolution of a partnership,(fn11) vacancies of a person serving as school director,(fn12) annulling, suspending, or revoking the certificate of a teacher,(fn13) denial, suspension, revocation, probation or refusal to renew a license of a person operating a family care home or child care center,(fn14) mandatory revocation of license to drive,(fn15) and appointment of a guardian ad litem for any parent under the Children's Code.(fn16)

The second type of change is substantive change to Article 10 of Title 27 (the Mental Health Act) and changes to the Children's Code, Probate Code, and the Protective Services Act.

THE MENTAL HEALTH ACT

To ensure that voluntary patients are not lost in the system, the Act requires a review of each patient at least once every six months.(fn17) The facility director must advise each patient upon admission that he is going to be examined with regard to his mental condition and of his right to retain and consult with an attorney at any time.(fn18) Upon certification for short-term treatment, the notice of certification may be signed by a "professional person" on the staff of the evaluation facility and must be filed with the court within 24 hours. Under the provisions dealing with long-term care and treatment of the mentally ill, extensions of the order of long-term care and treatment

22are shortened from one year to six months although the provision for repetitive extensions remains intact.(fn19) A substantial change was made by requiring the standard of proof to be "clear and convincing evidence" and the burden still lies with the person or facility seeking to detain a respondent.(fn20)

While preserving the right of the patient to obtain both medical and psychiatric care and treatment, an extremely important amendment to the Mental Health Act adds that the treatment must be suited to meet the patient's individual needs and delivered in such a way as to keep him in the least restrictive environment possible.(fn21) The right of habeas corpus is extended to entitle the patient to seek a release to a less restrictive setting within or without the treating facility or a release when inadequate medical and psychiatric care and treatment are being given.(fn22)

Particular legal disabilities may be imposed under the long-term care and treatment provisions if the petition requests such imposition.(fn23) A separate petition may be filed by any interested person wishing to deprive of a legal right any person who is mentally ill, gravely disabled, mentally retarded, developmentally disabled, or insane and not then subject to court proceedings.(fn24) Conversely, any legal disability imposed might be removed by a similar petition, with the burden of proof on the party opposing removal of the disability or restoration of the right.

PROBATE CODE

The primary substantive change to the Probate Code disallows hospitalization or institutionalization for care and treatment of mental illness through the use of the general powers of a guardian. Previously, determination of a ward's custody and place of abode were a general power of the guardian. As now amended by the Act, this general power cannot be used to effect a placement which would normally be considered under Article 10 or 10.5 of Title 27.(fn25)

The Act also eliminates the appointment of a guardian of an incapacitated person upon the mere proof that a person has been previously adjudicated mentally ill or mentally deficient, or certified mentally ill or gravely disabled. It is necessary to show that the person is in fact incapacitated and that the appointment is necessary or desirable as a means of providing continuing care and supervision.(fn26) Similarly, prior adjudication of mental illness or mental deficiency, or certification as mentally ill or gravely disabled, cannot be utilized in a petition for conservator or other protective order under Part 4 of the Probate Code concerning protection of property of persons under disability and minors.(fn27)

CHILDREN'S CODE

The Act provides for major substantive change in the Children's Code in regard to the Denver Juvenile Court. Under prior law, the Juvenile Court did not have jurisdiction to order the treatment or commitment of children who were mentally ill or mentally deficient, but had to refer these matters to the Probate Court. The Act now grants jurisdiction to the Juvenile Court over the mentally ill or the developmentally disabled child who comes within the court's jurisdiction under other provisions of the Juvenile Code.(fn28)

Another major change applies to all juvenile courts. Under the prior provisions of the Children's Code, if the evidence presented at an adjudicatory hearing suggested that the child may be mentally ill or mentally deficient, the court was required to suspend the hearing and either order the child examined or proceed through petition for certification for short or long-term hospitalization. As now amended, the Children's Code provides that, if it appears from the evidence presented at an adjudicatory hearing or otherwise that the child may be mentally ill or developmentally disabled, the court shall order an examination. If the examination discloses mental illness to the extent that short or long-term hospitalization or confinement

23is required, the court may itself proceed under the Mental Health Act, assuming the power granted to the Probate Court. Inherent in the statutory language is the power not to proceed in that manner if the court determines that the main problems of the child can be better handled through the normal juvenile dispositions after adjudicatory...