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Colorado Criminal Law – Involuntary Commitments – 72 Hour Holds And Involuntary Medication – One of the most pressing due process rights a person has is the right to protect their body from Government intrusion. This article addresses limits on the State of Colorado’s right to forcibly medicate a person.
If you are targeted and then committed to a mental institution your rights do not just disappear. The non-consensual forced medication of ANY person must pass muster under the laws of Colorado.
Remember this, a civil commitment of a patient to a mental institution is a serious and:
“severe infringement on the basic interest of that individual to be free from governmental restraint and thus requires protection under the Due Process Clauses of the United States and Colorado Constitutions.”
In Colorado, before the State can forcibly medicate a person, certain tests must be applied by a Court of Law. Known as the Medina tests, these protections have been drawn by the Courts of Colorado to:
….strike the appropriate balance between the patient’s right to bodily integrity and the State’s interest in protecting the patient and others from harm resulting from the patient’s illness.
A person has the right to bodily integrity, which includes the right “to participate in and make decisions about his own body.” This is an ancient right which evolved from law of battery and developed into the law of informed consent. In its simplest form, this right requires a patient’s consent prior to treatment.
Even if a patient has been involuntarily committed, he or she does not lose his right to bodily integrity under the law – § 27-65-104, C.R.S. If the authorities try to medicate a patient over his or her objection – this is a violation of the patient’s right to bodily integrity, regardless of his capacity to make a competent decision about his health care.
An “involuntarily committed and incompetent” patient’s right to refuse treatment is not absolute. The State of Colorado:
“….has a legitimate interest in effectively treating the illnesses of those placed in its charge and, as well, in protecting patients and others from dangerous and potentially destructive conduct within the institution.”
To balance these interests, a physician who wishes to treat such a patient despite the patient’s objections must petition the court for an order to forcibly administer the medication. § 27-65-111(5), C.R.S. (2015).
The physician or facility seeking the order bears the burden to show, by clear and convincing evidence, that the treatment is necessary. § 27-65-111(1).
The Medina case created a framework for determining whether a court may order a patient to be forcibly medicated.
Under Medina, the physician or facility must show by clear and convincing evidence:
(1) that the patient is incompetent to effectively participate in the treatment decision;
(2) that treatment by anti-psychotic medication is necessary to prevent a significant and likely long-term deterioration in the patient’s mental condition or to prevent the likelihood of the patient’s causing serious harm to himself or others in the institution;
(3) that a less intrusive treatment alternative is not available; and
(4) that the patient’s need for treatment by anti-psychotic medication is sufficiently compelling to override any bona fide and legitimate interest of the patient in refusing treatment.
Medina also stands for the proposition that the State of Colorado cannot force patients to accept medication based on that patients past violent actions.
“The State’s legitimate interest in institutional security is:
“not sufficient to permit it to expose those committed to its care to the risk of antipsychotic medication solely for the purpose of alleviating the risk of some possibility of future injury or damage to the patient or others.”
To permit the authorities to administer anti-psychotics based on prior acts of violence is:
“…irreconcilable with the personal dignity of the individual and would render the patient’s interest in bodily integrity nothing more than an illusion.”
Bottom line – the Government cannot use a presumption of future violence derived from a patient’s mental health history to speculate that the patient might deteriorate and commit violence in the future.
Colorado law provides several “additional factors” that must be applied before drugs can be forcefully administered to prevent deterioration.
The factors that make up the full test for determining whether a patient is at risk of a significant and likely long-term deterioration include:
(1) the nature and gravity of the patient’s illness,
(2) the extent to which the medication is essential to effective treatment,
(3) the prognosis without treatment, and
(4) whether the failure to medicate will be more harmful to the patient than any risks posed by the medication.
All of these factors must be viewed in light of the test’s focus—preventing deterioration.
Unless there is an emergency that poses an immediate and substantial threat to the life or safety of the patient or others in the institution, anti-psychotic medicine may be administered to a non-consenting mentally ill patient incapable of making an informed treatment decision only after the trial court conducts a full and fair adversary hearing on the treatment decision and is satisfied by clear and convincing evidence that:
(1) the patient is incompetent to effectively participate in the treatment decision;
(2) treatment by antipsychotic medication is necessary to prevent a significant and likely long-term deterioration in the patient’s mental condition 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 anti-psychotic medication is sufficiently compelling to override any bona fide and legitimate interest of the patient in refusing treatment.
“Involuntary confinement” or “civil commitment: The kind of certification that constitutes an emergency for mental health care and treatment, is found in the Colorado Revised Statutes at 27-10-101 to -129, C.R.S. This is the kind of risk that forces the state to detain mentally ill individual in a treatment facility of persons who:
as a result of such illness, are a danger to themselves or others or who are gravely disabled ( i.e., persons who as a result of mental illness are unable to take care of basic personal needs or are making grossly irresponsible decisions concerning their persons and are incapable of realizing they are doing so.
A Colorado State Form Used To Advise Individuals Of Their Rights In This Area (Here Is A Link To ALL Of These Forms – Click Here)
C.R.S. 27-65-105, 27-65-116, and 27-65-117, as amended
TO:________________ , Patient:
1. YOUR TREATMENT: You will be examined to determine your mental condition. We believe that if you understand and participate in your evaluation, care, and treatment, you may achieve better results. The staff has a responsibility to give you the best care and treatment possible and available and to respect your rights.
2. NO DISCRIMINATION: You have the right to the same consideration and treatment as anyone else regardless of race, color, national origin, religion, age, sex, political affiliation, financial status or disability.
3. YOUR LAWYER: You have the right to retain and consult with an attorney at any time. If you are here involuntarily, the court will appoint an attorney for you (at your own expense, if you are found able to afford one).
4. TELEPHONES: You have the right to ready access to telephones, both to make and receive calls in privacy.
5. LETTERS: You have the right to receive and send sealed letters. No incoming or outgoing letters shall be opened, delayed, held or censored by the personnel of the facility.
6. WRITING MATERIALS: You have the right to have access to letter writing materials, including postage. They will be provided, if needed. If you are unable to write, members of the facility will assist you to write, prepare, or mail correspondence.
7. VISITORS: You have the right to frequent and convenient opportunities to meet with visitors. The facility may not deny visits at any time by your attorney, clergyman, or physician.
8. REFUSAL OF MEDICATIONS: You have the right to refuse to take medications, unless you are an imminent danger to yourself or others or the court has ordered medications.
9. CERTIFICATION: If you are an involuntary patient, you have the right to a review of your certification or treatment by a judge or jury, and you may ask the court to appoint an independent professional person (psychiatrist or psychologist) to examine you and to testify at your hearing.
10. CLOTHING AND POSSESSIONS: You have the right to wear your own clothes, keep and use your own possessions and keep and be allowed to spend a reasonable sum of your own money.
11. SIGNING IN VOLUNTARILY: You have the right to sign in voluntarily, unless reasonable grounds exist to believe you will not remain a voluntary patient.
12. LEAST RESTRICTIVE TREATMENT: You have the right to receive medical and psychiatric care and treatment in the least restrictive treatment setting possible, suited to meet your individual needs.
13. TRANSFERS: If you are certified, you have the right to twenty-four (24) hour notice before being transferred to another facility unless an emergency exists. You also have the right to protest to the court any such transfer, the right to notify whom you wish about the transfer, and the right to have the facility notify up to two (2) persons designated by you about your transfer.
14. CONFIDENTIALITY: You have the right to confidentiality of your treatment records except as required by law.
15. ACCESS TO MEDICAL RECORDS: You have the right to see your medical records at reasonable times.
16. FINGERPRINTS: You have the right not to be fingerprinted, unless it is required by law.
17. PHOTOGRAPHS: You have the right to refuse to be photographed except for hospital identification purposes.
18. VOTING: You have the right to the opportunity to register and vote by absentee ballot with staff assistance.
19. RESTRICTIONS: If you abuse the rights regarding telephones, letters, writing materials, visitors or clothing and possessions, these rights may be restricted by the professional person (physician or licensed psychologist) providing treatment, but you must be given an explanation as to why the right is to be restricted. Restricted rights shall be evaluated for therapeutic effectiveness every seven (7) days.
20. GRIEVANCES: Grievances or complaints may be submitted to the Colorado Department of Health, the Colorado Division of Behavioral Health, or the Legal Center Serving Persons with Disabilities. Your patient representative will help you select the proper agency for your complaint or grievance and assist you in preparing the complaint or grievance if you wish.
CERTIFICATION OF SERVICE
I, certify that on , 2 , I read aloud the contents of the foregoing to the above named patient. A copy of the patient Rights and Responsibilities Handbook or a copy of this Patients’ Rights Statement was also given to the patient.
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