Involuntary Treatment of Persons with Mental Health Disorders for the Elder Law Practice: A legal discussion

Transcription

1 Involuntary Treatment of Persons with Mental Health Disorders for the Elder Law Practice: A legal discussion by Jonathan Culwell, Esq. The Care and Treatment of Persons with Mental Health Disorders Act is found at et seq., C.R.S. The Act was moved from et seq in 2010, with significant changes to a number of provisions within the act. These changes were drafted in large part by counsel for the City and County of Denver, purportedly to avoid enabling one of the most difficult issues from the prior law: the revolving door practice in mental health. In addition, Senate Bill added a provision we will discuss below while beginning the work of establishing the Behavioral Health Crisis Response System. This presentation will address the practice and procedure of involuntary mental health treatment, involuntary medication administration, and a few relevant issues for the elder law attorney. The General Structure of Involuntary Care and Treatment Many people may be familiar with a 72-hour Hold, or M-1 Hold, that is the basis for involuntary treatment. Under an M-1 Hold a person must be evaluated for a mental health disorder and may be held in custody for up to 72 hours. If a person has not stabilized within this period of time, then a medical provider can initiate a Short-Term Certification by filing paperwork with the district court sitting in probate or the Denver Probate Court, as appropriate. A Short-Term Certification is valid for 3 months. If more time is needed, an extended Short-Term Certification may be filed for up to another 3 months. Neither of these certifications require a court order or hearing. If 6 months or more is needed, in the medical professional s opinion, then a certification for Long-Term Care and Treatment must be filed every 6 months and a court order is required to effectuate the hold. If an M.D. or a D.O. believes that psychiatric medications are required, 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 NJ or NG tube. Voluntary Application for Mental Health Services The fact that a person has a mental health disorder that may require hospitalization, and that there are provisions for placing that person in custody involuntarily, does not preclude the

2 voluntary application for mental health services (1), C.R.S. The statute must be strictly construed to protect the right to voluntary treatment of mental illness. Goebel v. Colo. Dept. of Insts, 830 P.2d 1036 (Colo. 1992). Provisions for voluntary and involuntary application of minors between the ages of 15 and 18 can be found in , C.R.S. are fairly intertwined, and are beyond the scope of this presentation. Additionally, subsection 103 states that for the purpose of the article, the treatment by prayer in the practice of religion of any church which teaches reliance on spiritual means alone for healing shall be considered a form of treatment, the medical and legal status of patients under voluntary application of treatment shall be reviewed every six months, voluntary patients enjoy all the same rights as other hospital patients, and if a person is offered and signs in voluntarily, they do so with an explicit disclosure provided by the legislature. Initiating a Mental Health Hold on an Emergency Basis A 72-hour Mental Health Hold may be initiated in one of three ways. The most common way is through an Intervening Professional, which is a certified peace officer, a Professional Person (defined below), a registered professional nurse with training in psychiatric or mental health nursing, licensed marriage and family therapist or counselor with training in mental health, or a licensed clinical social worker. These persons are authorized to take a person into custody who appears to have a mental health disorder and, as a result of a mental health disorder, appears to be an imminent danger to others or to himself or herself or appears to be gravely disabled. This standard requires the intervening professional to have probable cause to take the person into custody. The intervening professional must be the one who fills out the M-1 form, providing details to support the person s probable cause. This is all done under (1)(a), C.R.S. The second way to initiate a mental health hold is through a sworn affidavit to or affirmed before a judge that states sufficient facts to establish that a person appears to have a mental health disorder and, as a result of the mental health disorder, appears to be an imminent danger to others or to himself or herself or appears to be gravely disabled. This is the same standard by which an intervening professional is authorized to place someone on a mental health hold. The statute leaves it open to anyone to petition the court, as opposed to having an interest or being a professional. There is disagreement between jurisdictions whether this petition may be submitted via private counsel, or whether as some jurisdictions require, it must be brought through the county, city, or district attorney, whichever is appropriate. This is all done under (1)(b), C.R.S. The third method is new as of May 1, This method of initiating a mental health hold is by affidavit sworn to or affirmed before a judge that relates sufficient facts to establish that a person appears to have a mental health disorder and, as a result of the disorder, is in need of immediate evaluation for treatment to prevent physical or psychiatric harm to others or

3 himself or herself. The statute is written to encourage a person to be taken to an outpatient provider or other appropriate facility. This third method is done under (1)(c). No person subject to an emergency mental health hold as listed above shall be kept in a jail or other lockup (2), C.R.S. This is a change to the way holds have been initiated and may require some advocacy by an attorney or mental health professional aware of the new law. The statutes were re-written in 2014 and a heated battle ensued over the word imminent in the statutes above. Proponents of the word imminent felt that protecting a person s civil right not to be taken into custody for doing nothing wrong required a high standard. Critics of the idea that imminent was too high a standard felt that waiting for people to decompensate until they are imminently dangerous is inhumane. This section was added under SB17-207, which created the Behavioral Health Crisis Response System under et seq. and is intended to serve as a comprehensive and preferred response to a behavioral health emergency in order to eliminate the use of the criminal justice system to treat mental illness, provides an appropriate line of first-response to a crisis, decriminalizes mental health disorders, and looks at substance abuse and mental health interconnectedly, to name a few of the legislature s purposes. The bill received an appropriation of just over $7M, about $4M of which goes to crisis response services and $2M goes to juvenile justice diversion programs. The practical problem with this bill is that there are not enough psychiatric beds for the number of people who need assistance. I expect more work to be proposed to the legislature in the upcoming session to address this issue, and potentially other issues. Any person may also request the court place someone under mental health hold upon a pleading that lists a number of factors identifying the petitioner, respondent, and probable cause for the hold on a non-emergency basis under , C.R.S. The petitioner must allege that the respondent may have a mental health disorder and, as a result of the mental health disorder, the person is a danger to others or to himself or herself or is gravely disabled, with reasonable grounds to warrant an evaluation. I have seen this done when someone is already in jail and decompensating to the degree of requiring court-ordered medications before being safe in general population again. There may be other uses. Certification for Short- and Long -Term Treatment: Gravely Disabled and Dangerousness Prior to being certified, a person must be advised of their right to remain in voluntary treatment (if medically indicated). Therefore, if reasonable grounds exist to believe the person will not remain in voluntary treatment, then that person can be certified for up to three months (1)(b), C.R.S. The requirement to advise of a voluntary option must be strictly construed, yet the respondent must comply with all the terms of the treatment to be considered voluntary. In re Stevens, 761 P.2d 768. Nevertheless, a person has the right to refuse medications unless and until a court finds the person incompetent to participate in medication

4 decisions. Goedecke v. State Dept. of Insts., 603 P.2d 123 (Colo 1979). A certification for short term treatment is not a finding of incapacity , C.R.S. Initiating a certification for short term treatment is a purely medical decision but it cannot be initiated until a person has been detained under the provisions of or , and the Professional Person alleges in the certification that the respondent is a danger to others or to himself or herself, or is gravely disabled. A Professional Person is a person licensed to practice medicine in Colorado or in another state and in good standing, a psychologist certified in Colorado or in another state and in good standing while providing medical or clinical services in this state that is operated by the armed forces of the U.S., the U.S. public health service, or the Veteran s Administration. With the change in the statute in 2010, the legislature addressed the revolving door issue that could occur as a result of In Re Bucholz, 778 P.2d 300 (Colo. 1989). The respondent in Bucholz lived with a diagnosis of paranoid schizophrenia and raised a challenge to his certification upon the third request for long term care, which puts his hospitalization at approximately 18 months of consecutive treatment. The definition of gravely disabled was a condition in which a person, as a result of mental illness, is unable to take care of his basic personal needs or is making irrational or grossly irresponsible decisions concerning his person and lacks the capacity to understand this is so. The Bucholz court held that a certification for short term treatment required a showing of being currently gravely disabled at the time of certification, or of being dangerous to self or others. The respondent was ordered released upon the court s decision for no evidence of being a present danger to self or others, and the doctor s opinion testimony that Bucholz was not currently gravely disabled as long as he remained on medications. Mental health disorders, as health care providers will argue, often require more than a restoration from a grave disability to return to stabilized baseline functioning. It is not uncommon for persons with a mental health disorder to discontinue taking prescribed medications when out of a structured environment. Thus, a person might stabilize, sometimes quickly so, on an oral medication while in treatment, be discharged, decompensate, and end up back in a facility requiring involuntary care and treatment. In 2010, an amended version of the statute was drafted by lawmakers in conjunction with counsel for the City of Denver Michael Stafford. Mr. Stafford understood that the People had to carry the burden of proof by clear and convincing evidence (see (1)) that a person was currently gravely disabled and he had an opportunity to change that, so he assisted in the drafting of the following definitions: (11.5) Mental Health Disorder includes: -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. An intellectual

5 or developmental disability is insufficient to either justify or exclude a finding of a mental health disorder pursuant to the provisions of this article (4.5) Danger to self or others means: (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 -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 (9) Gravely disabled means: - 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. No limitation exists on the length of time or the degree of recovery a person must exhibit to determine when a person is no longer subject to involuntary treatment under the amended statute once having returned to baseline functioning. Short Term Certification procedure: Due Process Although the case is almost forty years old, the Colorado supreme court in In re Taylor, 615 P.2d 1127 (Colo. 1980) held that involuntary treatment is legally unavailable unless it is shown that a person is mentally ill and, as a result of the illness, the person is either a danger to others or a danger to himself, or gravely disabled, and that the person has not accepted voluntary treatment. Today statute requires that there be a nexus between the mental health disorder and the behavior that is dangerous or indicates an incapability to make informed decisions. This means that mere disability alone is not enough to curtail someone s liberty. The court in In re Stevens, 781 P.2d 768 (Colo. 1988) held that remaining in voluntary treatment means the respondent will comply with the terms of the treatment. That is notably

6 different than remaining in the hospital voluntarily without the request to leave. One must participate voluntarily with all terms of treatment or be subject to involuntary treatment. Strict adherence to procedural safeguards is required. Sisneros v. Dist. Ct., 606 P.2d 55 (Colo. 1980). Once certified, the court in Curnow v. Yarbrough, 676 P.2d 1177 (Colo. 1984) held that the restriction of liberty is constitutional because there are procedural safeguards which protect a person s due process rights, including 1) a professional decision to initiate a 72-hour evaluation, 2) a professional medical evaluation at the time of involuntary short-term commitment, 3) notice concerning commitment within 24 hours, 4) notice to one other person the respondent designates, 5) prompt appointment of an attorney, 6) a hearing within 10 days if requested, 7) the burden of proof by clear and convincing evidence upon the petition, and 8) optional court appointment of an independent professional (for a second opinion). See also Brown v. Jensen, 572 F.Supp 193 (D.Colo. 1983); and , C.R.S. A short-term commitment lasts up to three months and can be extended one time for an additional three months , C.R.S. As mentioned, the respondent has a right to a hearing in front of a judge or a jury within ten days of a request. The request must go through counsel, unless the court is satisfied by a written statement, made knowingly and intelligently, requesting waiver of counsel (5), C.R.S. Thus, no court order is required to effectuate a short- or extension of short- term involuntary treatment. A facility must be designated by the Department of Human Services to hold a certification. The petition is made by the designated facility on behalf of the People of the State of Colorado through the medical opinion of a Professional Person. The attorney for the county, city, or district, depending on where the court enjoying personal jurisdiction is seated, shall conduct all proceedings (6), C.R.S. Long-Term Care and Treatment of Persons with Mental Health Disorder: Procedure A long-term commitment is valid for up to 6 months and may be petitioned after a person has been under short term involuntary treatment for 5 consecutive months, (1), and may be petitioned for in subsequent terms of six months, without limitation, at least 30 days prior to expiration of the prior long-term certification (5). The standards for finding commitment is justified, the facility designated, the advisement of voluntary treatment was offered, and strict construction of the process remain the same as short-term treatment procedures. The major difference is that long-term treatment is not valid unless a court orders the treatment, where the designated facility must now request a hearing and the respondent or respondent s counsel has a right to a bench or jury trial within ten days of the filing of the certification. Involuntary Medications and Special Procedures If a respondent, or a person who has plead Not Guilty by Reason of Impaired Mental Condition or Insanity or is ordered to be restored to competency to proceed (all in Title 16), the

7 procedure is under but there is a different common law standard for Title 16 cases. For purposes of this presentation we will focus on respondents, finding the standards set forth in In re Medina, 705 P.2d 961 (Colo. 1985). Earlier the Goedecke case was mentioned, where it was held that a person retains the right to refuse medications unless found to be incompetent. As the adage goes, the law cannot force someone to avoid a poor decision. If a person poses a serious risk of substantial harm to self or others while in the institution, however, then emergency medications may be administered for up to 10 days without a court order. See Medina, 662 p.2d at 964; 2 CCR (4). In non-emergency situations, if a person is 1) unable to effectively participate in the treatment decision, then the State owes it to that person to ensure that the treatment by antipsychotic medication 2) is necessary to prevent a significant and likely long-term deterioration in the patient s mental condition or to prevent harm to self or others in the institution, or to prevent the likelihood of the patient s causing serious harm to himself or others in the institution, 3) a less intrusive treatment alternative is not available, and 4) the patient s need for treatment by antipsychotic medication is sufficiently compelling to override any bona fide and legitimate interest of the patient in refusing treatment. Medina, 662 p.2d at 965. Prior to the Marquardt case, authority for forcible administration of psychiatric medications were motioned with specified amounts of medication. That practice appears to have changed after People v. Marquardt, 364 P.3d 499 (2016) where the Colorado supreme court held that the Medina factors that apply to forcible administration of medication apply to the forcible increase of medications. In that case, Marquardt had stabilized but was not achieving baseline and refused to take an increased dose. The Marquardt court denied the motion for an increase in medications for failure to show that there was a need to prevent deterioration or harm to others. The involuntary application of antipsychotic medications under the Medina factors does not provide authorization for the State to administer any medical treatment or medication. In the case of In re C.J.R., 409 P.3d 536, a long-time respondent of a state mental institution had undergone a change in metabolism and the medication that had been keeping him stable was no longer available for treatment. While decompensated and refusing medications during the pendency of the medication hearing, the respondent s sexual behavior became inappropriate and assaultive. The state institution included in its motion a request for involuntary administration of progesterone in a hope that reducing or eliminating respondent s sexual libido would curtail the behavior. The court of appeals held that the Medina factors do not authorize chemical castration and that such authorization must come via the general assembly. If a person is stabilized on medications, additional back-up medications are not authorized under Medina if they are not necessary to prevent harm to others or psychiatric deterioration, or are no less intrusive. In re R.K.L., a/k/k A.J.J., 2016 COA 84. In this case, the respondent was diagnosed with schizophrenia and a possible bipolar disorder, and eleven medications to treat respondent s grandiose delusions, disorganized thought processes, lack of impulse control and

8 impulsivity were requested in a motion from the hospital. The respondent had been stabilized with Invega and the respondent agreed that there were little or no side effects from Invega but objected based on personal preferences. Under Medina, the potential future harm a person who has been violent in the past may cause in the future is insufficient to authorize involuntary medications one must be presently dangerous or deteriorating, and the state must be able to balance the level of intrusiveness of a medication against a person s need to be treated. Thus, the R.K.L. court declined to authorize ten of the eleven medications for failure to show that they are required to stabilize, and for failure to discuss the side effects of ten of the eleven medications so the State could weigh their intrusiveness. Electroconvulsive Therapy ECT is still used today and is often applied to combat severe depression or mania if other treatments are not effective. The practice today includes the use of muscle relaxers to avoid broken bones, and side effects usually include some memory loss. Some persons with mental health disorders are strong proponents of the treatment. If a physician motions for involuntary ECT treatment, In re M.K.M. requires a person be offered voluntary treatment and if properly refused, then the Medina standards are applicable. 765 P.2d 1075 (Colo. App. 1988). Eating Disorders Generally, Colorado is not a favored state when it comes to mental health care. This is likely due to the need for minimally adequate bed space and flexibility to initiate involuntary procedures prior to an extreme situation, for example, the dangerousness seen from the James Holmes theater shooting. That said, however, Denver is one of the most sought-out locations in the world for treatment of eating disorders, especially anorexia nervosa. The combination of an acute stabilization unit at Denver Health Medical Center where severely medically unstable persons are first admitted, with multiple follow up inpatient and outpatient providers for eating disorders in the area including the Eating Recovery Center make this a common place to have out of state persons certified under state laws. While this author is unsure of the efficacy of involuntary treatment, it is clear that that behavior is treated as a mental health disorder and title 27 applies. The definition of a mental health disorder is likely the second most compelling reason that the court is able to uphold involuntary treatment for a respondent who is clearly capable of understanding and appreciating the effects of treatment and medically indicated care that the person may lack volitional processes to the degree that judgment is impaired, or that behavior cannot be controlled to begin taking nourishment. The medicine behind treatment for acute stabilization may argue that bradycardia, or slow heart rate, among other issues, becomes severe enough that oxygen is not being supplied to the brain and cognitive function is therefore decreased, but by the time someone is at a place like the Eating Recovery Center, such symptoms are far less likely to be present as the ERC is unable to treat for that severe a symptom. Nevertheless, certifications are upheld and special procedures follow the same Medina standards. Special procedures are typically NG tubes, where food is delivered through a

9 tube that goes through the nose and into the stomach, and NJ tubes for more serious situations where the tube passes the stomach and delivers nourishment to the small intestine. A few follow up thoughts for the Elder Law attorney Guardianship A guardian can initiate voluntary mental health services for a ward so long as the ward agrees to the admission. If admitted, the guardian must notify the court within ten days of the admission , C.R.S. Under (4), a guardian may not consent to psychiatric treatment or medications on behalf of a ward except in accordance with article 65 of title 27, C.R.S. Nevertheless, a guardian does have rights at a hearing. A guardian has the right to intervene and, through counsel, may present evidence and represent to the court the views of the guardian concerning the appropriate disposition of the case (6). There is no case law on whether the guardian s counsel must be the attorney who conducts the proceeding, and it would appear that a guardian has the right to present opinion testimony without qualification as an expert. Advanced Directives There is no Colorado statutory provision allowing for or preventing a person from designating an agent under powers of attorney to assist with mental health treatment and care. See e.g , C.R.S. Nevertheless, the issue arises that a person may revoke a power of attorney at any time , C.R.S. Unlike cognitive decline or similar medical issues that steadily decrease a person s ability to satisfy essential needs for health, safety, and welfare, a person with a mental health disorder will likely experience a dynamic and cyclical range of capacity and willingness to seek treatment, and often may cycle in and out of desiring help from others or even trusting an agent under his or her own power of attorney. These facts essentially make a power of attorney for psychiatric care and coordination meaningless in Colorado. Antipsychotics and Nursing Homes There are significant issues with persons in nursing homes being medicated beyond their consent, as well as beyond their need for medication. To allow a psychiatric advanced directive may make matters worse. Firearms If a person has had a protective order entered against them, has been ordered incapacitated under guardianship, has been committed to the custody of the department of human services under title 25.5, or for whom the court has entered an order for involuntary treatment of mental illness under , -108, or -109, C.R.S., then that person s name shall be added to a list that is sent to the state court administrator s office, who in turn sends it to the Colorado Bureau of Investigation, who in turn reports the list to the FBI, National Instant Criminal Background Check System for inclusion on the federal firearms prohibition list under the Brady Bill ;