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Understanding Colorado Mental Health ” M-1″ Holds – 27-65-101 – A Criminal Defense Perspective

By H. Michael Steinberg Colorado Criminal Defense Lawyer – Attorney

Understanding Colorado Mental Health “ M-1" Holds - 27-65 101 - A Criminal Defense Perspective

Understanding Colorado Mental Health “ M-1″ Holds – 27-65 101 – A Criminal Defense Perspective

Understanding Colorado Mental Health “M-1” Holds – 27-65-101 – A Criminal Defense Perspective – Many Colorado professionals have the legal authority to place mental health “holds” on the citizens of Colorado. This deprivation of one’s freedom is nothing less than the equivalent of an arrest.

While I have written on this subject before, this article is a more comprehensive and updated view of Colorado M-1 Mental Health Holds.

You can call it whatever you want, but the right of hospital room emergency rooms, for example, to take someone into custody on a 72-hour “hold” can be, and is being abused in Colorado.

The procedure leading to the seizure is very loose, ill defined, and dangerous.

What follows is Colorado’s well regarded Children’s Hospital policy on “Mental Health Hold for Involuntary Treatment.” The procedures followed by Children’s are similar to those throughout Colorado to place a mental health “M-1” hold. Children’s Hospital’s Mental Health Hold for Involuntary Treatment Policy.

The policies are based on Colorado Law – Section 27-65-101 (printed in it’s entirety well below).

First – Some Important DEFINITIONS

Danger to Self – The individual poses a substantial risk of physical harm to self as manifested by evidence of recent threats of or attempts at suicide or serious bodily harm to self.

Danger to Others – With respect to other persons, that the individual poses a substantial risk of physical harm to another person or persons, as manifested by evidence of recent homicidal or other violent behavior by the person in question, or by evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them, as evidenced by a recent overt act, attempt, or threat to do serious physical harm by the person in question.

Family Member – Spouse, parent, adult child, or adult sibling of a person with a mental illness.

Gravely Disabled – A condition in which a person, as a result of a mental health disorder, is incapable of making informed decisions about or providing for his or her essential needs without significant supervision and assistance from other people. As a result of being incapable of making these informed decisions, a person who is gravely disabled is at risk of substantial bodily harm, dangerous worsening of any concomitant serious physical illness, significant psychiatric deterioration, or mismanagement of his or her essential needs that could result in substantial bodily harm. A person of any age may be “gravely disabled”, but such term does not include a person whose decision-making capabilities are limited solely by his or her developmental disability.

Independent Professional Person – Professional person, as defined below who evaluates a minor’s condition as an independent decision-maker and whose recommendations are based on the standard of what is in the best interest of the minor. The professional person may be associated with the admitting mental health facility if he or she is free to independently evaluate the minor’s condition and need for treatment and has the authority to refuse admission to any minor who does not satisfy the statutory standards.

Legal Guardian – An individual appointed by the court, or by will, to make decisions concerning an incapacitated individual’s or minor’s care, health and welfare.

A Person With A Mental Illness – A person with one or more substantial disorders of the cognitive, volitional, or emotional processes that grossly impairs judgment or capacity to recognize reality or to control behavior. Developmental disability is insufficient to either justify or exclude a finding of mental illness within the provisions of this article.

A Professional Person – A person (1) licensed to practice medicine in Colorado; or (2) a psychologist certified in Colorado

Second – The Procedure Of Taking An Individual Into M-1 “Mental Hold” Custody

Colorado law requires as follows:

When any person appears to have a mental illness and, as a result of such mental illness, appears to be an imminent danger to others or to self or appears to be gravely disabled, an intervening professional 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…

Once a 72-hour Hold has been initiated, the person cannot voluntarily leave until the 72-hold has been resolved.

Who Can Order The Actual “Placement” Of A 72-hour Hold?

The professionals placing the M-1 Mental Hold use a form to make this determination. Here is an example of the form used most often:The Colorado Mental Health M-1 Form

The following persons may place a 72-hour hold:

A Certified peace officer.

A Physician or Licensed Psychologist with a license in the state of Colorado.

An APRN with psychiatric/mental health training (i.e. Psychiatric NP).

A Licensed marriage and family therapist, licensed professional counselor, or licensed addiction counselor who by reason of postgraduate education and additional preparation has gained knowledge, judgment, and skill in psychiatric or clinical mental health therapy, forensic psychotherapy, or the evaluation of mental disorders.

A Licensed clinical social worker.

If An Individual Is Taken into Custody Advisement Of Your Rights

The Patient Has A RIGHT To Be Advised Of His – Her Rights

The patient must be advised of the decision to place a mental health hold. Here is an example of the advisement of rights form: M-2 Rights of Patients (English)

Each person placed on a 72-hour hold must be advised of his/her rights (Rights of Patients English/Spanish M-2 Rights of Patients (English)) and documentation of same must be entered into the medical record demonstrating that this was performed.

Further, if the “professional” believes that the person is mentally ill and, as a result, is an imminent danger to self or others, or gravely disabled, …documentation produced in the case must state facts sufficient to establish the above conclusions.

After seizure of the person for an M-1 hold – the 72 hour evaluate and treat program must begin as soon as possible after he or she is admitted.

Quick Aside – What Happens When The 72 Hour Hold Is Over?- The Release Of The 72-hour Hold

The person held on an M-1 hold must be released before 72-hours have elapsed if, in the opinion of the professional person in charge of the evaluation determines that the individual no longer requires evaluation or treatment.

After The 72 Hours Has Run: After the 72 hours has run out – the individual who has been detained on a 72-hour hold must be:

1) Released

2) Referred for further care and treatment on a voluntary basis; or

3) Certified for continued treatment.

The Colorado Legal Controversy – The Standard For Arrest (Seizing The Person On An M-1 Hold) Is  “Imminent Danger”

The Controversy – When Is A Seizure Of A Person Legally Permissible Under A Colorado’s 72 Hour Mental Health “Hold And Treat” Law?

As noted, Colorado law – C.R.S. § 27-65-105 (reprinted in it’s entirety below) governs the so called mental health emergency procedure in Colorado. Every state has a version of this law which mandates certain standards be applied before a person can be seized on a mental health hold.

The interesting part is this – Colorado’s M-1 hold law is among the most protective of the rights of the person as compared to 43 other states.

Colorado’s standard before than can be a seizure of a suspected mentally ill person requires the patient present as an “imminent danger to others or to himself or herself…”

Understanding Immanency – “Danger” Defined

In addition to the requirement that the danger to the person and/or others must be “imminent.” The following definitions of the word “danger” need to be restated here:

“Danger to self or others” is defined to read:

a) “With respect to an individual, that the individual poses a substantial risk of physical harm to himself or herself as manifested by evidence of recent threats of or attempts at suicide or serious bodily harm to himself or herself; or”

b) “With respect to other persons, that the individual poses a substantial risk of physical harm to another person or persons, as manifested by evidence of recent homicidal or other violent behavior by the person in question, or by evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them, as evidenced by a recent overt act, attempt, or threat to do serious physical harm by the person in question.”

The most comprehensive information on the subject of the requirement of “immanency” found on the Colorado State website – addressing the emergency commitment procedure.

Again, the term “imminent” is the key.

Here is a description of the term provided by the Colorado Department of Behavioral Health:

The Civil Commitment Statute Review Task Force informally recently considered the definition and application of the term “imminent” in C.R.S. § 27-65-105.

The plain language meaning of “imminent” can be found here.

In section 105, the term “imminent” applies to the proximity in time of the dangerousness.

More specifically, the term “imminent” applies to a determination of whether the danger to others or himself or herself is current; it does not apply to how soon in time a specific dangerous act may be undertaken.

Evaluators authorized to seize a person using the M-1 Hold procedure are provided a form by the state – the Colorado Mental Health M-1 Form –  that they are encouraged to use.

The purpose of the form is to determine if a person’s behavior is so risky that they need to be held against their will.

In my opinion – the seizure of a person against their will should meet the highest standards of legal protection. What often happens is that the decision is rushed with little opportunity for both observation and interview. Much of the time there is little or no information obtained from any other source – such as from family members – or those connected to the individual. This “collateral information” is not collected because it is often not available. The absence of this information is not evidence of mental illness.

The word “imminent” has little meaning to persons in the ER who fear a civil lawsuit if they release a depressed person back onto the street and harm should occur to them there. “Imminent” should be interpreted to mean that without intervention this person is not going to be okay – that they, as NAMI (the National Alliance On Mental Health), has stated “will kill themselves, kill someone else or simply die because they cannot or will not eat/drink or keep themselves safe.”

Colorado’s Code of Regulations in this area IS FULL of important guidelines and procedures granting rights to the person on an M-1 Hold. This regulations are often ignored by poorly trained emergency room personnel – more concerned with their jobs than with the health and welfare of these troubled patients who need time and attention and not to be locked up in a psyche ward.

An Example Of A Potential Abuse Of Patient Rights – When 72 Hours Is NOT 72 Hours

21.120.32 Seventy-Two (72) Hour Treatment and Evaluation Facilities – Exclusion of Saturdays, Sundays, and Holidays

Evaluation shall be completed as soon as possible after admission. The designated treatment and evaluation facility may detain a person for seventy-two (72) hour evaluation and treatment for a period not to exceed seventy-two (72) hours, excluding Saturdays, Sundays and holidays if evaluation and treatment services are not available on those days. For the purposes of these rules, evaluation and treatment services are not deemed to be available merely because a professional person licensed in Colorado to practice medicine or a certified Colorado psychologist is on call during weekends and holidays.

The Rights Of Individuals Held On M-1 Holds – Colorado Code Of Regulations

21.280.26 Individual Rights of Persons Receiving Evaluation Care or Treatment Pursuant to Title 27, Article 65, C.R.S.

A. Individuals shall be informed they have the same rights as any individual, except as limited by law. Among these are the rights to:

1. Receive services in the least restrictive setting, subject to available funding.

2. Have an individualized service plan and the right to participate in the development and subsequent changes.

3. Review the clinical record, as allowed by law.

4. Designate a representative(s) verbally or in writing, to represent the individual’s interests in matters related to grievances.

5. Have access to a representative within the designated facility who provides assistance to file a grievance.

6. Be informed by the designated facility that there will be no retaliation against an individual for exercising his or her rights.

B. Facilities shall post individual rights in prominent places frequented by individuals receiving services.

C. For Individuals receiving treatment in facilities designated pursuant to Title 27, Article 65, C.R.S.:

1. The facility shall furnish all individuals receiving evaluation, care or treatment under any provisions of Title 27, Article 65, C.R.S., with a written copy of the rights listed under Subsection 21.280.26, C, 2 (translated into a language that the individual understands) upon admission. If the individual is not able to read the rights, the individual shall be read the rights in a language that s/he understands. These rules shall be interpreted by the Department in accordance with a standard of reasonableness.

2. The facility shall post the following list of rights (in appropriate languages) in prominent places frequented by individuals and their families receiving services:

a. To receive and send sealed correspondence. No incoming or outgoing correspondence shall be opened, delayed, held or censored by the personnel of the facility;

b. To have access to letter writing materials, including postage, and to have staff members of the facility assist him/her if unable to write, prepare and mail correspondence;

c. To have reasonable and frequent access to a telephone, both to make and receive calls in privacy;

d. To have frequent and convenient opportunities to meet with visitors. The facility may not deny visits by the individual’s attorney, religious representative or physician at any reasonable time. The facility will provide privacy to maintain confidentiality of communication between an individual and spouse or significant other, family member(s), staff member(s), attorney, physician, certified public accountant and religious representative, except that if disclosure is required by law, then such privacy may be terminated;

e. To wear his or her own clothing, keep and use his/her own individual possessions within reason and keep and be allowed to spend a reasonable sum of his/her own money;

f. To refuse to take psychiatric medications, unless the individual is an imminent danger to self or others or the court has ordered administration of such medications;

g. To not be fingerprinted unless required by law;

h. To refuse to be photographed except for facility identification and the administrative purposes of the facility. Photographs and/or video recordings shall be confidential and shall not be released by the facility except pursuant to court order. No other non-medical photographs and/or video recordings shall be taken or used without appropriate consent or authorization (Section 27-65-117(4), C.R.S.).

i. For individuals who are under certification for care and treatment, to receive twenty-four (24) hour notice before being transferred to another designated or placement facility unless an emergency exists, and the right to have the transferring facility notify someone chosen by the individual about the transfer;

j. To confidentiality of treatment records except as required by law;

k. To accept treatment voluntarily, unless reasonable grounds exist to believe the individual will not remain in treatment on this basis;

l. To receive medical and psychiatric care and treatment in the least restrictive treatment setting possible, suited to meet the individual’s needs and subject to available resources;

m. To request to see his/her clinical record, to see the records at reasonable times, and if denied access, to be given the reason upon which the request was denied and have documentation of such placed in the individual record;

n. To retain and consult with an attorney at any reasonable time;

D. With every mental health hold (M-1) and petition to court for involuntary treatment resulting in a change of legal status, the facility shall advise an individual of his or her rights set forth in this Section 21.280.26, and there shall be evidence of such advisement in the individual’s clinical record.

Quick and Final Note On Colorado M-1 Holds

While Colorado affords more protection of the Colorado citizen’s civil liberties under the law – the decision of when is the lawfully “right time” to place an M-1 hold is inconsistent from hospital facility to facility.

When the broad list of “professionals” authorized to utilize M-1 emergency commitment procedures includes poorly trained police officers, doctors, nurses, licensed social workers and therapists making this decision in the rush of the ER or under other stressful circumstances – in the absence of training many mistakes are made. The wide net of people who can initiate involuntary M-1 holds means there is little accountability and few controls.

In vetoing a bill that would have impacted and perhaps reduced the rights of persons placed on mental health holds in June of 2016, Governor Hickenlooper said this about the new legislation:

“No limit is placed for how long an emergency room may detain someone involuntarily while awaiting a free bed in a suitable treatment facility, and more importantly, no mechanism is made to afford due process to a person held involuntarily in “emergency” custody,” Hickenlooper’s letter states. “We have due process concerns for these individuals.”

For more information on this complex topic – here is a link to NAMI and to a brochure on legal holds that contains much more information.

 

NAMI Colorado

1 (888) 566-6264 (toll-free)

(303) 321-3104 (local)

helpline@namicolorado.org

 

NAMI Arapahoe/Douglas Counties

155 Inverness Drive West, Suite 205

Englewood, Colorado 80112

303-991-7688

Colorado Law On Mental Health “M-1” 72 Hour Holds

C.R.S. § 27-65-105. Emergency Procedure (M-1 Mental Health Holds)

(1) Emergency procedure may be invoked under either one of the following two conditions:

(a) (I) When any person appears to have a mental illness and, as a result of such mental illness, appears to be an imminent danger to others or to himself or herself or appears to be gravely disabled, then a person specified in subparagraph (II) of this paragraph (a), each of whom is referred to in this section as the “intervening professional”, 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.

(II) The following persons may effect a seventy-two-hour hold as provided in subparagraph (I) of this paragraph (a):

(A) A certified peace officer;

(B) A professional person;

(C) A registered professional nurse as defined in section 12-38-103 (11), C.R.S., who by reason of postgraduate education and additional nursing preparation has gained knowledge, judgment, and skill in psychiatric or mental health nursing;

(D) A licensed marriage and family therapist or licensed professional counselor, licensed under the provisions of part 5 or 6 of article 43 of title 12, C.R.S., or an addiction counselor licensed pursuant to section 12-43-804 (3), C.R.S., who by reason of postgraduate education and additional preparation has gained knowledge, judgment, and skill in psychiatric or clinical mental health therapy, forensic psychotherapy, or the evaluation of mental disorders; or

(E) A licensed clinical social worker licensed under the provisions of part 4 of article 43 of title 12, C.R.S.

(b) Upon an affidavit sworn to or affirmed before a judge that relates sufficient facts to establish that a person appears to have a mental illness and, as a result of the mental illness, appears to be an imminent danger to others or to himself or herself or appears to be gravely disabled, the court may order the person described in the affidavit 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.

Whenever in this article a facility is to be designated or approved by the executive director, hospitals, if available, shall be approved or designated in each county before other facilities are approved or designated. Whenever in this article a facility is to be designated or approved by the executive director as a facility for a stated purpose and the facility to be designated or approved is a private facility, the consent of the private facility to the enforcement of standards set by the executive director shall be a prerequisite to the designation or approval.

(2) (a) When a person is taken into custody pursuant to subsection (1) of this section, such person shall not be detained in a jail, lockup, or other place used for the confinement of persons charged with or convicted of penal offenses; except that such place may be used if no other suitable place of confinement for treatment and evaluation is readily available. In such situation the person shall be detained separately from those persons charged with or convicted of penal offenses and shall be held for a period not to exceed twenty-four hours, excluding Saturdays, Sundays, and holidays, after which time he or she shall be transferred to a facility designated or approved by the executive director for a seventy-two-hour treatment and evaluation.

If the person being detained is a juvenile, as defined in section 19-1-103 (68), C.R.S., the juvenile shall be placed in a setting that is non secure and physically segregated by sight and sound from the adult offenders. When a person is taken into custody and confined pursuant to this subsection (2), such person shall be examined at least every twelve hours by a certified peace officer, nurse, or physician or by an appropriate staff professional of the nearest designated or approved mental health treatment facility to determine if the person is receiving appropriate care consistent with his or her mental condition.

(b) A sheriff or police chief who violates the provisions of paragraph (a) of this subsection (2), related to detaining juveniles may be subject to a civil fine of no more than one thousand dollars. The decision to fine shall be based on prior violations of the provisions of paragraph (a) of this subsection (2) by the sheriff or police chief and the willingness of the sheriff or police chief to address the violations in order to comply with paragraph (a) of this subsection (2).

(3) Such facility shall require an application in writing, stating the circumstances under which the person’s condition was called to the attention of the intervening professional and further stating sufficient facts, obtained from the personal observations of the intervening professional or obtained from others whom he or she reasonably believes to be reliable, to establish that the person has a mental illness and, as a result of the mental illness, is an imminent danger to others or to himself or herself or is gravely disabled. The application shall indicate when the person was taken into custody and who brought the person’s condition to the attention of the intervening professional. A copy of the application shall be furnished to the person being evaluated, and the application shall be retained in accordance with the provisions of section 27-65-121 (4).

(4) If the seventy-two-hour treatment and evaluation facility admits the person, it may detain him or her for evaluation and treatment for a period not to exceed seventy-two hours, excluding Saturdays, Sundays, and holidays if evaluation and treatment services are not available on those days. For the purposes of this subsection (4), evaluation and treatment services are not deemed to be available merely because a professional person is on call during weekends or holidays. If, in the opinion of the professional person in charge of the evaluation, the person can be properly cared for without being detained, he or she shall be provided services on a voluntary basis.

(5) Each person admitted to a seventy-two-hour treatment and evaluation facility under the provisions of this article shall receive an evaluation as soon as possible after he or she is admitted and shall receive such treatment and care as his or her condition requires for the full period that he or she is held. The person shall be released before seventy-two hours have elapsed if, in the opinion of the professional person in charge of the evaluation, the person no longer requires evaluation or treatment. Persons who have been detained for seventy-two-hour evaluation and treatment shall be released, referred for further care and treatment on a voluntary basis, or certified for treatment pursuant to section 27-65-107.

In vetoing a bill that would have impacted and perhaps reduced the rights of persons placed on mental health holds in June of 2016, Governor Hickenlooper said this about the new legislation:

“No limit is placed for how long an emergency room may detain someone involuntarily while awaiting a free bed in a suitable treatment facility, and more importantly, no mechanism is made to afford due process to a person held involuntarily in “emergency” custody,” Hickenlooper’s letter states. “We have due process concerns for these individuals.”


Understanding Colorado Mental Health ” M-1″ Holds – 27-65-101 – A Criminal Defense Perspective

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The reader is admonished that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.

If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm – 303-627-7777.

Never stop fighting – never stop believing in yourself and your right to due process of law. You will not be alone in court, H. Michael will be at your side every step of the way – advocating for justice and the best possible result in your case. H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at mailto:hmsteinberg@hotmail.com– A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – please call 720-220-2277.

“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer. We encourage you to “vet” our firm. Over the last 30 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Understanding Colorado Mental Health ” M-1″ Holds – 27-65-101 – A Criminal Defense Perspective.

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Understanding Colorado Mental Health "M-1 Holds - 27-65 101 - A Criminal Defense Perspective
Article Name
Understanding Colorado Mental Health "M-1 Holds - 27-65 101 - A Criminal Defense Perspective
Description
Many Colorado professionals have the legal authority to place mental health "holds" on the citizens of Colorado. This deprivation of one’s freedom is nothing less than the equivalent of an arrest.
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H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
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