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

2. 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.

3. 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

4. § 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

5. § 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

6. § 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

7. § 27-65-107 DEFINITIONS Professional Person Mental Health Disorder
Dangerousness to Self or Others
Gravely Disabled

8. § 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

9. § 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

10. § 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

11. § 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

12. 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.

13. 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.

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

15. Elder Law Practitioners
Guardianship
Advanced Directives
Antipsychotics in Nursing Homes
Firearms