Mental Disabilities Law Issues

Publication year1978
7 Colo.Law. 212
Colorado Lawyer

1978, February, Pg. 212. Mental Disabilities Law Issues


Vol. 7, No. 2, Pg. 212

Mental Disabilities Law Issues

Colorado's mental health laws have a disparate effect on juveniles and adults. When subjected to constitutional challenge, many statutes similar to Colorado's have fallen on procedural due process grounds.

Commitment of Children

The applicable Colorado law, C.R.S. 1973, as amended, § 27-10-103(3), is part of the section of the Mental Health Act governing voluntary application for treatment. Subsection (2) of § 27-10-103 permits minors fifteen or older to apply for voluntary treatment. Subsection (3) states:

Nothing in subsection (2) of this section shall be construed to require the consent of any minor to receive mental health services when the parent or legal guardian of the minor makes voluntary application for such services on his behalf or to limit the application to minors of the provisions of this article concerning involuntary evaluation, care, and treatment.

This section allows parents (or legal guardians) to commit their children as "voluntary patients." These children are denied rights statutorily assured to involuntary patients, including the right to a hearing, the right to treatment, the right to treatment in the least restrictive environment possible, the right to refuse certain treatments, and most importantly, the right to remain at liberty unless the mental-illness and dangerousness standards of the statute are met. They are also denied the right of adult voluntary patients to leave the facility at will. Rather, only the committing parent can compel the child's release.

In Kremens v. Bartley, 431 U.S. 119, 97 S.Ct. 709, 52 L.Ed.2d 84 (1977), the Supreme Court had the opportunity to decide the constitutionality of the Pennsylvania statute allowing parents to commit their children as "voluntary patients." Similar to the Colorado statute, the Pennsylvania statute provided no procedural due process safeguards for juveniles committed by their parents (see Pennsylvania Mental Health and Mental Retardation Act of 1966, 50 P.S. § 4402 and 4403).

The Pennsylvania statute was amended prior to the hearing before the Supreme Court to afford juveniles fourteen and older the rights of adults under the statute. Because this amendment fragmented the class and made the claims of the named plaintiffs moot, the Supreme Court remanded the case...

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