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Colorado Criminal Law – Understanding Psychiatric Evaluations in the Emergency Room and Colorado Involuntary Treatment Laws

Who can institute a “hold and treat” for involuntary mental health treatment?

Police

Physician (M.D.)

Licensed psychologist

Registered nurse (R.N.)

Licensed clinical social worker

Licensed counselor or marriage and family therapist with special training

National Park Ranger

A family member can also go to probate court to ask for a hold.

The law provides two types of Holds for Involuntary Treatment:

1) A 72-hour Hold and Treat – This enables a person to be held involuntarily for a period of 72 hours, or three days, for evaluation and treatment.

2) A Five-Day Alcohol Hold – If alcohol use/abuse is involved, the person can be held for five days at a detox center for detoxification and evaluation.

If symptoms are apparent in a brief evaluation by police and the person is unwilling to go to a professional, family members may petition the civil court system to order an evaluation.

When a physician requests a court order for involuntary treatment, the process is called a Certification.

Short Term Certification is for three months and can be extended for an additional three months.

Long Term Certification is for six months and can be extended for six month intervals.

The person who is certified has the legal right to contest certification through a court hearing.

Psychiatric Evaluations in the Colorado Emergency Room

This document outlines the generally accepted standard of care you should expect from professionals who perform psychiatric evaluations in the ER and also what you can do as a family member to make sure the professional has access to the best information.

Arriving at the ER

When a person who is exhibiting severe symptoms of mental illness arrives at the Emergency Room, it is often by virtue of a “Mental Health Hold” (M1 Hold).

Usually the family calls the police due to concerns about a person’s safety. If the police officer observes that the person is in imminent danger of harming him or herself or someone else or is “gravely disabled” the officer can write a hold and transport the person to the ER.

An M1 Hold relies on Colorado Statute 27-65-101 Care and Treatment of Persons with Mental Illness (formerly 27-10-101). Sometimes a friend or family member brings an individual to the ER because they are concerned about the person’s safety for a variety of reasons, including severe intoxication or impairment due to substance abuse, extreme agitation or severe depression. In that case the ER personnel can place the person on an M1 Hold.

When a person is placed on a mental health hold, it means that they can be held for up to 72 hours for a psychiatric evaluation. It does not necessarily mean that the person will be held for the entire 72 hours.

What to expect at the ER

Before a psychiatric evaluation can occur, the ER must ensure that the person is medically cleared. At a minimum the ER will usually do a drug screen and toxicology report. Often the process to get to medical clearance takes 6 – 8 hours, but it could take longer based on the complexity of the medical clearance and how busy the ER is.

A third party, usually a family member or police officer, can request a psychiatric evaluation. If you are a family member requesting the evaluation, it’s important to bring documentation of the behaviors that are causing concern, psychiatric history,medications, and all other related information.

Having information in writing is very helpful, especially because this is a crisis situation. If you have evidence of threats (either self harm or harm to others), such as something the person wrote, emailed, or texted, or information that demonstrates that the person is psychotic and may be gravely disabled and unable to care for him or herself, bring that as well.

Psychiatric Evaluation Process

The evaluation process is comprised of 4 phases:

1. Face to face interview

2. Collateral contact (getting information from other involved parties such as family members)

3. Consultation with other professionals who are involved with the client

4. Disposition (resource planning with client, family and appropriate professionals)

Professionals who perform psychiatric evaluations are guided by generally accepted standards of care as designated by their license and by the organizations to whom they report, such as a mental health center or hospital organization.

The order of phases 1 – 3 is flexible. Depending on the evaluator’s clinical judgment and the specific situation, the family may be consulted first or later, together with the client, or separately, and so forth.

Standard of Care

Professional’s (Evaluator) Standard of Care

The face-to-face interview should be approximately 45 minutes to 1 hour. The evaluator can often get a more accurate picture with less distraction if interviewing the client alone. However, there are times, especially when the client requests that the family be present, or if the client doesn’t appear to feel safe alone with the evaluator, that the evaluator may include the family during this interview. This depends on the clinical judgment of the evaluator and the specific situation.

Collateral contacts are generally family members or friends. Often this is a one-way communication. The evaluator listens to what the family has to report, the events leading up to the emergency, including the transport to the evaluation site. The evaluator will ask about the level of risk before arrival, including the client’s statements and actions. The evaluator will also inquire about what has increased or decreased the risk since arriving at the evaluation site.

The evaluator is assessing, among other things, how long the client can sustain safety, when the client will see a provider, or if there is no provider, what the appropriate level of care is and how quickly it can be met. If a high level of care is needed, but not available, an ER can keep a person until there is availability by virtue of the Mental Health Hold. However, ERs are under pressure to “turn over” beds, so often they will release someone if they believe that imminent danger of harm is past.

The most relevant collateral information illustrates imminent dangers in the past 24 hours or since the last provider appointment, if there has been one.

Emergency 27/10 rules DO allow for “collateral contact.”

The evaluator should consult with both the ER attending physician, psychiatrist, or both. They can have an impact on the evaluator’s decision.

An evaluator is responsible to determine the LEAST RESTRICTIVE CARE and best outcome for follow through. An evaluator’s license is on the line with his or her disposition decision.

Rarely are outcomes perfect in an ER situation. However, you should expect the standard of care that is documented here.

Here is a copy of the Colorado Law in this Area:

27-65-106. Court-ordered evaluation for persons with mental illness.

(1) Any person alleged to have a mental illness and, as a result of the mental illness, to be a danger to others or to himself or herself or to be gravely disabled may be given an evaluation of his or her condition under a court order pursuant to this section.

(2) Any individual may petition the court in the county in which the respondent resides or is physically present alleging that there is a person who appears to have a mental illness and, as a result of the mental illness, appears to be a danger to others or to himself or herself or appears to be gravely disabled and requesting that an evaluation of the person’s condition be made.

(3) The petition for a court-ordered evaluation shall contain the following:

 (a) The name and address of the petitioner and his or her interest in the case;

 (b) The name of the person for whom evaluation is sought, who shall be designated as the respondent, and, if known to the petitioner, the address, age, sex, marital status, and occupation of the respondent;

 (c) Allegations of fact indicating that the respondent may have a mental illness and, as a result of the mental illness, be a danger to others or to himself or herself or be gravely disabled and showing reasonable grounds to warrant an evaluation;

 (d) The name and address of every person known or believed by the petitioner to be legally responsible for the care, support, and maintenance of the respondent, if available;

 (e) The name, address, and telephone number of the attorney, if any, who has most recently represented the respondent. If there is no attorney, there shall be a statement as to whether, to the best knowledge of the petitioner, the respondent meets the criteria established by the legal aid agency operating in the county or city and county for it to represent a client.

(4) Upon receipt of a petition satisfying the requirements of subsection (3) of this section, the court shall designate a facility, approved by the executive director, or a professional person to provide screening of the respondent to determine whether there is probable cause to believe the allegations.

(5) Following screening, the facility or professional person designated by the court shall file his or her report with the court. The report shall include a recommendation as to whether there is probable cause to believe that the respondent has a mental illness and, as a result of the mental illness, is a danger to others or to himself or herself or is gravely disabled and whether the respondent will voluntarily receive evaluation or treatment. The screening report submitted to the court shall be confidential in accordance with section 27-65-121 and shall be furnished to the respondent or his or her attorney or personal representative.

(6) Whenever it appears, by petition and screening pursuant to this section, to the satisfaction of the court that probable cause exists to believe that the respondent has a mental illness and, as a result of the mental illness, is a danger to others or to himself or herself or is gravely disabled and that efforts have been made to secure the cooperation of the respondent, who has refused or failed to accept evaluation voluntarily, the court shall issue an order for evaluation authorizing a certified peace officer to take the respondent into custody and place him or her in a facility designated by the executive director for seventy-two-hour treatment and evaluation. At the time of taking the respondent into custody, a copy of the petition and the order for evaluation shall be given to the respondent, and promptly thereafter to any one person designated by such respondent and to the person in charge of the seventy-two-hour treatment and evaluation facility named in the order or his or her designee.

(7) The respondent shall be evaluated as promptly as possible and shall in no event be detained longer than seventy-two hours under the court order, excluding Saturdays, Sundays, and holidays if treatment and evaluation services are not available on those days. Within that time, the respondent shall be released, referred for further care and treatment on a voluntary basis, or certified for short-term treatment.

(8) At the time the respondent is taken into custody for evaluation or within a reasonable time thereafter, unless a responsible relative is in possession of the respondent’s personal property, the certified peace officer taking him or her into custody shall take reasonable precautions to preserve and safeguard the personal property in the possession of or on the premises occupied by the respondent.

(9) When a person is involuntarily admitted to a seventy-two-hour treatment and evaluation facility under the provisions of this section or section 27-65-105, the person shall be advised by the facility director or his or her duly appointed representative that the person is going to be examined with regard to his or her mental condition.

(10) Whenever a person is involuntarily admitted to a seventy-two-hour treatment and evaluation facility, he or she shall be advised by the facility director or his or her duly appointed representative of his or her right to retain and consult with any attorney at any time and that, if he or she cannot afford to pay an attorney, upon proof of indigency, one will be appointed by the court without cost.

Source: L. 2010: Entire article added with relocations, (SB 10-175), ch. 188, p. 684, § 2, effective April 29.

Editor’s note: This section is similar to former § 27-10-106 as it existed prior to 2010.


Other Articles of Interest:

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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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