Chapter 17 - § 17.3 • INVOLUNTARY MENTAL HEALTH TREATMENT

• Jurisdiction: Colorado

§ 17.3 • INVOLUNTARY MENTAL HEALTH TREATMENT

The Care and Treatment of Persons with Mental Health Disorders Act is found at C.R.S. §§ 27-65-101, et seq. This section addresses the practice and procedure of initiating involuntary mental health treatment and discusses the case law regarding involuntary treatment, involuntary medication administration, and a few relevant issues for elder law attorneys.

§ 17.3.1—The General Structure of Involuntary Care and Treatment

Many people may be familiar with a 72-hour Hold, or M-1 Hold, which is the most-often-used initiating document for involuntary treatment. If a person has not stabilized within this period of time, a medical provider can initiate a Short-Term Certification by filing paperwork with the district court or the Denver Probate Court. A Short-Term Certification is valid for three months. If more time is needed, an Extension of Short-Term Certification may be filed for up to another three months. Neither of these certifications requires a court order or hearing as long as involuntary medications are not being requested.

If six months' or more treatment is needed, in the medical professional's opinion, a certification for Long-Term Care and Treatment must be filed every six months and a court order is required to effectuate the extended hold. An order for long-term care and treatment lasts for a maximum of six months per court order, which can be placed sequentially without limitation.

If an M.D. or a D.O. believes that psychiatric medications are required and the individual is not willing to take medications voluntarily, a motion for authority to administer medications is required. The same is true for special procedures, such as ElectroConvulsive Therapy (ECT) and, in the context of an eating disorder, an NG or NJ (feeding) tube.

§ 17.3.2—Access to the Mental Health System

Emergency Provisions

There are generally two methods for initiating emergency involuntary mental health evaluation: one section of the statute is for intervening professionals, as defined in the statute, and the other is for "any person" to apply through the judicial process for orders to take a person into a designated facility. Cf". C.R.S. § 27-65-105(1)(a) with C.R.S. § 27-65-105(1)(b).

The well-known "M-1" hold in Colorado is the most-often-used initiating process through which intervening professionals detain a person for evaluation to determine whether a mental illness is the cause of behavior that is likely to result in harm to self or others or the person is so affected by mental illness that he or she is "incapable of making informed decisions or providing for his or her essential needs without significant supervision and assistance from other people." C.R.S. § 27-65-102(9).³ It is sometimes necessary to use that time for evaluation, but more often the time is needed to find a bed at an inpatient facility within the three-day period. The hold is written, however, to last only as long as it takes to evaluate a person for certification to a mental hospital, up to 72 hours, not including weekends and holidays depending on the facility. C.R.S. § 27-65-105(5).

Detaining a person under the provisions for an M-1, which are found at C.R.S. § 27-65-105(1)(a), is a probable cause standard whereby dangerousness is measured in imminence and grave disability is measured by the "intervening professional's" trained understanding of mental health disorders:

(I) When any person appears to have a mental health disorder and, as a result of such mental health disorder, appears to be an imminent danger to others or to himself or herself or appears to be gravely disabled, then an intervening professional, as specified in subsection (1)(a)(II) of this section, upon probable cause and with such assistance as may be required, may take the person into custody, or cause the person to be taken into custody, and placed in a facility designated or approved by the executive director for a seventy-two-hour treatment and evaluation. If such a facility is not available, the person may be taken to an emergency medical services facility.

C.R.S. § 27-65-105(1)(a)(I) (emphasis added).

The Behavioral Health Crisis Response System

For years a trend had developed, often in rural areas, where persons satisfying these factors were held in jails awaiting transportation or evaluation. In 2017, the General Assembly passed a new initiating process to allow for increased use of the statute to assist in mental health crisis and attempt to avoid criminalizing mental health behaviors. HB 17-207, 70th Leg., 1st Reg. Sess. (Colo. 2017).

A Bill to Strengthen the Mental Health Crisis Services in Colorado was passed in 2017, where a number of measures aimed to provide support to emergency responders and police, rural communities, and individuals experiencing a mental health crisis were addressed. The bill, which, among other things, revised C.R.S. Title 27, Article 65 ("Care and Treatment of Persons with Mental Health Disorders"), also created duties for the Office of Behavioral Health to report on the budget and effectiveness of the program. A few of the ways the "system" has been altered by this law are discussed here.

The bill added methods to allow a person to be taken into custody under the emergency provisions of C.R.S. § 27-65-105(1)(a). One was to allow intervening professionals to take someone under a different legal standard, and without placing the person on an official M-1 hold for two reasons: (1) the M-1 process adds significant time to rural police officers' response, and (2) it was not being used. One way that this issue was being sidestepped was to hold the person on criminal charges, a practice that was untenable. The "Transportation Hold" or "M.5 Hold" under the 2017 bill is a way to authorize police to get an individual into proper care while reducing hours of paperwork and standby time in rural communities. This process is used by the Mobile Crisis Response Unit. The M.5 hold is authorized by the following language:

(I.5) When any person appears to have a mental health disorder and, as a result of such mental health disorder, is in need of immediate evaluation for treatment in order to prevent physical or psychiatric harm to others or to himself or herself, then an intervening professional, as specified in subsection (1)(a)(II) of this section, upon probable cause and with such assistance as may be required, may immediately transport the person to an outpatient mental health facility or other clinically appropriate facility designated or approved by the executive director. If such a facility is not available, the person may be taken to an emergency medical services facility.

C.R.S. § 27-65-105(1)(a)(I.5) (emphasis added).

With these new methods of...