When Worlds Collide: Mentally Ill Criminal Defendants-part Ii

• Publication year: 2000
• Pages: 101
• Citation: Vol. 29 No. 7 Pg. 101

29 Colo.Law. 101 Colorado Lawyer 2000.

2000, July, Pg. 101. When Worlds Collide: Mentally Ill Criminal Defendants-Part II

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107

Vol. 29, No. 7, Pg. 101

The Colorado Lawyer
July 2000
Vol. 29, No. 7 [Page 101]

Specialty Law Columns
Criminal Law Newsletter
When Worlds Collide: Mentally Ill Criminal Defendants - Part II
by Lael Montgomery

Part I of this article, which appeared in the June 2000 issue of The Colorado Lawyer,1 explored laws pertaining to competency. These laws are part of Colorado's criminal statutes and were drafted specifically with criminal defendants in mind. The laws describing mental health issues are entitled "Care and Treatment of the Mentally Ill" and are found in the Department of Human Services statutes

The legislative declaration of purpose for these laws pertaining to mental illness is to secure humane treatment maximize protection for personal dignity and rights, and minimize any deprivation of liberty. It also encourages family involvement and voluntary treatment for the mentally ill.2 These laws were not drafted with criminal defendants in mind. They are nonetheless the laws relied on when a defendant's illness makes immediate treatment necessary

This Part II reviews the sections of the mental health laws most likely to apply to those with criminal cases pending. It also explores issues that may arise when criminal defendants are involuntarily medicated.

The Civil World: Care And Treatment

A district court judge,3 or a district court magistrate with the consent of the parties,4 may order an evaluation or an emergency hold for a mentally ill person. Non-emergency "evaluations" are initiated by "any individual" presenting the court with an appropriate petition.5 These evaluations conclude several procedural steps later with a seventy-two hour hold.6 It is a lengthy process unlikely to be used for a person in jail. More likely to be used is the "Emergency Procedure" for the mentally ill under CRS § 27-10-105.

Persons are considered "mentally ill" if they have "a substantial disorder of the cognitive, volitional, or emotional processes that grossly impairs judgment or capacity to recognize reality or to control behavior. . . ."7 Persons are "gravely disabled" if their mental illness causes them to be unable to care for themselves so that they are in danger of serious physical harm or causes a lack of judgment and understanding in managing life's resources and relationships significant enough to endanger their health and safety. Chronic mental illness with psychotic features, prior psychiatric hospitalizations, and "a deteriorating course leading toward danger to self or others" also may support a finding of "grave disability."8

If such persons' mental illness causes them to be an imminent danger to themselves or others or if it renders them gravely disabled, they may be taken into custody for a seventy-two hour mental health hold.9 Peace officers and mental health professionals, including psychiatrists, psychologists, psychiatric nurses, licensed counselors and therapists, and licensed social workers may take this action on their own. Any other person must swear out an affidavit establishing facts showing the imminent danger or grave disability and present that affidavit to a district court judge.10 On reviewing it, the court may order the respondent taken into custody and placed in an approved facility for a seventy-two hour hold.

"If the seventy-two hour hold is initiated by a person not statutorily authorized to do so, the result is a defect of process depriving the court of subject matter jurisdiction over the proceedings."11 Thus, when a county court judge ordered a hold on a person whose behavior was very concerning during an eviction hearing, the district could not thereafter properly obtain subject matter jurisdiction. The fact that the county judge's concerns were subsequently borne out by the respondent's certification for involuntary treatment could not "cure" this jurisdictional defect. "Had the county court judge called respondent's behavior to the attention of a peace officer or presented her observations of respondent in the form of an affidavit to a district court judge, such officer or district court judge could have properly ordered a hold."12

A person taken into custody on a mental health hold should not be taken to the jail unless no other suitable place of confinement is available for treatment and evaluation. If the jail must be used, the mentally ill person must be segregated from the criminals and must be held there for no more than twenty-four hours (weekends excluded).13 Wherever the person is held (an approved hospital is the preferred facility),14 at the end of seventy-two hours the respondent must be released, must enter into voluntary treatment, or must be certified for involuntary treatment.15

Notice of certification for involuntary treatment must be signed by a medical doctor or psychologist,16 with a copy given to the respondent and a copy filed with the court. The court must appoint a lawyer for the certified person and provide a review hearing within ten days at the person's request.17 The hearing may be to a jury.18 A certification hearing is a civil procedure, with the burden of proof by clear and convincing evidence always on the party seeking to detain the respondent.19 A person may be certified for a three-month short term or, after two such short terms, for long-term treatment of six months if still a danger or gravely disabled. Orders for long-term certification may be reissued ad infinitum as long as the prerequisites for issuing the order continue to exist.20

Comparing Competency Proceedings and Civil Commitments

As described above and in Part I of this article, the statutory schemes concerning competency and the care of the mentally ill collide, rather than mesh, in several ways. For instance, a criminal trial judge, whether in district or county court, can initiate competency proceedings. Only a district court judge (or a mental health worker or peace officer) can order an emergency mental health hold. The preferred locale for a competency evaluation is jail or, if necessary, another public institution. The last choice for an emergency mental health evaluation is the local jail, and the first choice is an approved hospital facility, whether public or private.

In a competency hearing, the burden of proof by a preponderance of the evidence is always on the party seeking to change the status quo. Thus, because there is a presumption of competency, the burden is on the party alleging incompetency. However, once a defendant is found to be incompetent, the burden shifts to the party seeking a change in that...