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

Legislative Purpose Includes: Support of right to voluntary treatment Support of appropriate family involvement Encouragement of rehabilitation to self-sufficiency Support of treatment in the least-restrictive setting To support the privacy, dignity, and other rights of persons undergoing treatment for a mental health disorder.

Outline of presentation Voluntary Admission 72-Hour Hold Short Term Certification, Extended Short Term Certification Long-Term Certification Involuntary Medication Administration Authority and Special Procedures Some issues for the Elder Law attorney

§ 27-65-103 - Voluntary Applications Strong statutory support for voluntary application Includes provisions for treatment of minors between the ages of 15 and 18, which is beyond the scope of this presentation Includes some rights people retain under the statute, i.e. religious beleifs

§ 27-65-105 - Emergency procedures Three methods for initiating a mental health holdl, or M-1 Intervening Professional – imminent danger/grave disability Affidavit sworn to or affirmed before a judge – imminent danger/grave disability Affidavit sworn to or affirmed before a judge –immediate evaluation to prevent harm Imminent Standard for probable cause Or the new standard of ”immediate evaluation” for treatment to prevent harm to others or self No holding in a jail or lockup

§ 27-65-106 - Non-Emergency Procedure Any person may petition Petition states person’s information and basis of interest in respondent or foundation of knowledge How incarcerated persons might be ordered to take medications

§ 27-65-107 DEFINITIONS Professional Person Mental Health Disorder Dangerousness to Self or Others Gravely Disabled

§ 27-65-107 pre- certification due process Must offer voluntary treatment Reasonable Grounds Jurisdiction: District for the county in which taken into custody or residing District Court sitting in Probate, or Denver Probate Court

§ 27-65-107 Post- certification due process Notice within 24 hours Notice to one other person designated by Individual Filed with Court within 48 hours Forthwith appointment of attorney Personal and Subject Matter Jurisdiction: In Re Clinton Right to hearing to the bench or jury within 10 days Burden of Proof on the Petitioner by clear and convincing evidence Right to independent evaluation by Independent Professional

§ 27-65-107 Short Term Certification Up to three months, with one extension No court order required Not a declaration of incompetence as in guardianship Individual retains the right to refuse medications

§ 27-65-109 Long Term Care and Treatment Requires court order May re-certify indefinitely First one must be petitioned after 5 consecutive months of treatment All subsequent petitions must be filed before 30 days of expiration

Involuntary Medications Medications are a highly intrusive treatment regimen. They alter brain chemistry. Emergency medications may be given to prevent substantial harm to self or others for up to ten days Non-Emergency: Medina Factors 1 Must be found unable to effectively participate in treatment decisions; 2(a) Medications must be necessary to prevent harm to self or others in the institution, or 2(b) must be necessary to prevent significant and likely long-term psychiatric deterioration; 3 Must show that there is no viable, less intrusive alternative; and 4 Must show that the State’s compelling interest overrides any bona fide legitimate objection.

Involuntary Medications In re Marquardt – Increase in dosage of involuntary medications subject to Medina factors In re C.J.R. – Medina factors do not apply to off-label use In re R.K.K. a/k/a A.J.J. – If stabilized on medication, additional “back up” medications are not available because they are no less intrusive than the effective medication, and without benefits and side effects the State is without evidence to balance intrusiveness.

Involuntary Medications: Special Procedures ElectroConvulsive Therapy Eating Disorders – NG and NJ tubes

Elder Law Practitioners Guardianship Advanced Directives Antipsychotics in Nursing Homes Firearms