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C.R.S. § 27-65-105. Emergency procedure.

(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 nonsecure 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.

Source: L. 2010: Entire article added with relocations, (SB 10-175), ch. 188, p. 682, § 2, effective April 29.

Editor's note: This section is similar to former § 27-10-105 as it existed prior to 2010.

ANNOTATION

Law reviews. For article, "Commitment Procedures in Colorado", see 29 Dicta 273 (1952). For article, "One Year Review of Civil Procedure and Appeals", see 38 Dicta 133 (1961). For article, "One Year Review of Torts", see 38 Dicta 93 (1961). For article, "Patients' Rights vs. Patients' Needs: The Right of the Mentally Ill to Refuse Treatment in Colorado", see 58 Den. L.J. 567 (1981). For article, "New Legislation Concerning the Mentally Disabled", see 11 Colo. Law. 2131 (1982). For article, "The Clinton Mental Health Case -- A Civil Procedure Lesson", see 19 Colo. Law. 1809 (1990). For article, "Clinton Redux: A Mental Health and Technical Defense Follow-up", see 22 Colo. Law. 2389 (1993).

Annotator's note. Since § 27-65-105 is similar to § 27-10-105 as it existed prior to the 2010 amendments to this article, relevant cases construing that provision have been included in the annotations to this section.

For constitutional considerations, see Barber v. People, 127 Colo. 90, 254 P.2d 431 (1953).

Due process considerations do not require an in-person evaluation by an intervening professional prior to placement on an involuntary hold. Tracz v. Centennial Peaks, 9 P.3d 1168 (Colo. App. 2000).

Purpose of section. This section was designed to protect the mentally ill person from himself. Kendall v. People, 126 Colo. 573, 252 P.2d 91 (1952).

Article necessitates strict compliance. In situations involving involuntary confinement, strict compliance with this article is a necessity. People in Interest of Henderson, 44 Colo. App. 102, 610 P.2d 1350 (1980).

For requirement of strict compliance with statutory procedure, see Okerberg v. People, 119 Colo. 529, 205 P.2d 224 (1949); Kendall v. People, 126 Colo. 573, 252 P.2d 91 (1952); Barber v. People, 127 Colo. 90, 254 P.2d 431 (1953); Rickey v. People, 129 Colo. 174, 267 P.2d 1021 (1954).

A proceeding under this article is not a criminal action. Kendall v. People, 126 Colo. 573, 252 P.2d 91 (1952).

An adverse finding in mental illness may bear grave consequences in that the person may be denied his liberty and incapacitated to contract, and while it does not necessarily bring his name or reputation into disrepute, it is, nevertheless, a blot on his life and those he might have brought into being. Kendall v. People, 126 Colo. 573, 252 P.2d 91 (1952).

Procedure provisions of the C.R.C.P. are not applicable to mental illness proceedings. Hultquist v. People, 77 Colo. 310, 236 P. 995 (1925).

Use of this emergency procedure is not limited to patients who decline voluntary treatment. People in Interest of Paiz, 43 Colo. App. 352, 603 P.2d 976 (1979).

"Probable cause" should not be measured by yardstick of legal technicality, but by the factual and practical considerations upon which a reasonable physician acts. People in Interest of Paiz, 43 Colo. App. 352, 603 P.2d 976 (1979).

Reversible error occurred under subsection (1)(a) where jury instruction included neither the element of "probable cause" nor a definition of "gravely disabled" even though prosecution relied upon that provision as the basis for taking defendant into custody. People v. Marquez-Lopez, 952 P.2d 788 (Colo. App. 1997).

Emergency medical personnel has no duty to make an independent determination as to whether the intervening professional had probable cause to institute the hold-and-treat procedure. Tracz v. Centennial Peaks, 9 P.3d 1168 (Colo. App. 2000).

Subsection (1)(b) does not require prior judicial testing before one who has been a voluntarily committed outpatient can be taken into custody. People in Interest of Henderson, 610 P.2d 1350 (Colo. App. 1980).

Contrary to patient's claim, no court hearing or 24-hour notice is required to take mentally ill person into custody under this section. Nor does this section specify that the patient must designate or approve of the treatment facility to which he is committed. Ketchum v. Cruz, 775 F. Supp. 1399 (D. Colo. 1991).

Voluntary treatment program not terminated when patient taken into custody and then returned to hospital. Where voluntarily committed outpatient was off the hospital premises and was taken into custody by the police and then returned to the hospital, this did not, as a matter of law, terminate his voluntary treatment program. People in Interest of Henderson, 610 P.2d 1350 (Colo. App. 1980).

When a county court judge initiates a 72-hour hold, the result is a defect of process depriving the court of subject matter jurisdiction. People In Interest of Lloyd-Pellman, 844 P.2d 1309 (Colo. App. 1992).

A subsequent certification during the 72-hour hold period does not cure the defect. People In Interest of Lloyd-Pellman, 844 P.2d 1309 (Colo. App. 1992).

Violation of this section, while relevant to claim for malpractice, cannot, by definition, create a claim based on negligence per se. Bauer v. Southwest Denver Mental Health Center, 701 P.2d 114 (Colo. App. 1985).

Applied in People v. Chavez, 629 P.2d 1040 (Colo. 1981); Brown v. Jensen, 572 F. Supp. 193 (D. Colo. 1983); People in Interest of Schmidt, 720 P.2d 629 (Colo. App. 1986); Asten v. City of Boulder, 652 F. Supp. 2d 1188 (D. Colo. 2009).

C.R.S. § 27-65-106. Court-ordered evaluation for persons with mental illness.

(1) Any person alleged to have a mental illness and, as a result of the mental illness, to be a danger to others or to himself or herself or to be gravely disabled may be given an evaluation of his or her condition under a court order pursuant to this section.

(2) Any individual may petition the court in the county in which the respondent resides or is physically present alleging that there is a person who appears to have a mental illness and, as a result of the mental illness, appears to be a danger to others or to himself or herself or appears to be gravely disabled and requesting that an evaluation of the person's condition be made.

(3) The petition for a court-ordered evaluation shall contain the following:

(a) The name and address of the petitioner and his or her interest in the case;

(b) The name of the person for whom evaluation is sought, who shall be designated as the respondent, and, if known to the petitioner, the address, age, sex, marital status, and occupation of the respondent;

(c) Allegations of fact indicating that the respondent may have a mental illness and, as a result of the mental illness, be a danger to others or to himself or herself or be gravely disabled and showing reasonable grounds to warrant an evaluation;

(d) The name and address of every person known or believed by the petitioner to be legally responsible for the care, support, and maintenance of the respondent, if available;

(e) The name, address, and telephone number of the attorney, if any, who has most recently represented the respondent. If there is no attorney, there shall be a statement as to whether, to the best knowledge of the petitioner, the respondent meets the criteria established by the legal aid agency operating in the county or city and county for it to represent a client.

(4) Upon receipt of a petition satisfying the requirements of subsection (3) of this section, the court shall designate a facility, approved by the executive director, or a professional person to provide screening of the respondent to determine whether there is probable cause to believe the allegations.

(5) Following screening, the facility or professional person designated by the court shall file his or her report with the court. The report shall include a recommendation as to whether there is probable cause to believe that the respondent has a mental illness and, as a result of the mental illness, is a danger to others or to himself or herself or is gravely disabled and whether the respondent will voluntarily receive evaluation or treatment. The screening report submitted to the court shall be confidential in accordance with section 27-65-121 and shall be furnished to the respondent or his or her attorney or personal representative.

(6) Whenever it appears, by petition and screening pursuant to this section, to the satisfaction of the court that probable cause exists to believe that the respondent has a mental illness and, as a result of the mental illness, is a danger to others or to himself or herself or is gravely disabled and that efforts have been made to secure the cooperation of the respondent, who has refused or failed to accept evaluation voluntarily, the court shall issue an order for evaluation authorizing a certified peace officer to take the respondent into custody and place him or her in a facility designated by the executive director for seventy-two-hour treatment and evaluation. At the time of taking the respondent into custody, a copy of the petition and the order for evaluation shall be given to the respondent, and promptly thereafter to any one person designated by such respondent and to the person in charge of the seventy-two-hour treatment and evaluation facility named in the order or his or her designee.

(7) The respondent shall be evaluated as promptly as possible and shall in no event be detained longer than seventy-two hours under the court order, excluding Saturdays, Sundays, and holidays if treatment and evaluation services are not available on those days. Within that time, the respondent shall be released, referred for further care and treatment on a voluntary basis, or certified for short-term treatment.

(8) At the time the respondent is taken into custody for evaluation or within a reasonable time thereafter, unless a responsible relative is in possession of the respondent's personal property, the certified peace officer taking him or her into custody shall take reasonable precautions to preserve and safeguard the personal property in the possession of or on the premises occupied by the respondent.

(9) When a person is involuntarily admitted to a seventy-two-hour treatment and evaluation facility under the provisions of this section or section 27-65-105, the person shall be advised by the facility director or his or her duly appointed representative that the person is going to be examined with regard to his or her mental condition.

(10) Whenever a person is involuntarily admitted to a seventy-two-hour treatment and evaluation facility, he or she shall be advised by the facility director or his or her duly appointed representative of his or her right to retain and consult with any attorney at any time and that, if he or she cannot afford to pay an attorney, upon proof of indigency, one will be appointed by the court without cost.

Source: L. 2010: Entire article added with relocations, (SB 10-175), ch. 188, p. 684, § 2, effective April 29.

Editor's note: This section is similar to former § 27-10-106 as it existed prior to 2010.

Cross references: For rights of person under arrest, see part 4 of article 3 of title 16.

ANNOTATION

C.J.S. See 44 C.J.S., Insane Persons, § 10.

Law reviews. For article, "Commitment Procedures in Colorado", see 29 Dicta 273 (1952). For article, "The Clinton Mental Health Case -- A Civil Procedure Lesson", see 19 Colo. Law. 1809 (1990).

Annotator's note. Since § 27-65-106 is similar to § 27-10-106 as it existed prior to the 2010 amendments to this article, relevant cases construing that provision have been included in the annotations to this section.

For constitutional considerations, see Barber v. People, 127 Colo. 90, 254 P.2d 431 (1953).

Proceeding has nonadversarial nature. An inquiry into the mental capacity of a person is a statutory proceeding of a nonadversary nature. Young v. Colo. Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).

Findings of screening facility or professional person are not binding upon the court. In re People in Interest of Hill, 118 Colo. 571, 198 P.2d 450 (1948).

For requirement of strict compliance with statutory procedure, see Hultquist v. People, 77 Colo. 310, 236 P. 995 (1925); Okerberg v. People, 119 Colo. 529, 205 P.2d 224 (1949); Kendall v. People, 126 Colo. 573, 252 P.2d 91 (1952); Barber v. People, 127 Colo. 90, 254 P.2d 431 (1953); Rickey v. People, 129 Colo. 174, 267 P.2d 1021 (1954).

For specificity of required report, see Kendall v. People, 126 Colo. 573, 252 P.2d 91 (1952).

Applied in People v. Lane, 196 Colo. 42, 581 P.2d 719 (1978); People in Interest of Paiz, 43 Colo. App. 352, 603 P.2d 976 (1979); People v. Chavez, 629 P.2d 1040 (Colo. 1981).

C.R.S. § 27-65-107. Certification for short-term treatment.

(1) If a person detained for seventy-two hours under the provisions of section 27-65-105 or a respondent under court order for evaluation pursuant to section 27-65-106 has received an evaluation, he or she may be certified for not more than three months of short-term treatment under the following conditions:

(a) The professional staff of the agency or facility providing seventy-two-hour treatment and evaluation has analyzed the person's condition and has found the person has a mental illness and, as a result of the mental illness, is a danger to others or to himself or herself or is gravely disabled.

(b) The person has been advised of the availability of, but has not accepted, voluntary treatment; but, if reasonable grounds exist to believe that the person will not remain in a voluntary treatment program, his or her acceptance of voluntary treatment shall not preclude certification.

(c) The facility which will provide short-term treatment has been designated or approved by the executive director to provide such treatment.

(2) The notice of certification must be signed by a professional person on the staff of the evaluation facility who participated in the evaluation and shall state facts sufficient to establish reasonable grounds to believe that the person has a mental illness and, as a result of the mental illness, is a danger to others or to himself or herself or is gravely disabled. The certification shall be filed with the court within forty-eight hours, excluding Saturdays, Sundays, and court holidays, of the date of certification. The certification shall be filed with the court in the county in which the respondent resided or was physically present immediately prior to his or her being taken into custody.

(3) Within twenty-four hours of certification, copies of the certification shall be personally delivered to the respondent, and a copy shall be kept by the evaluation facility as part of the person's record. The respondent shall also be asked to designate one other person whom he or she wishes informed regarding certification. If he or she is incapable of making such a designation at the time the certification is delivered, he or she shall be asked to designate such person as soon as he or she is capable. In addition to the copy of the certification, the respondent shall be given a written notice that a hearing upon his or her certification for short-term treatment may be had before the court or a jury upon written request directed to the court pursuant to subsection (6) of this section.

(4) Upon certification of the respondent, the facility designated for short-term treatment shall have custody of the respondent.

(5) Whenever a certification is filed with the court, the court, if it has not already done so under section 27-65-106 (10), shall forthwith appoint an attorney to represent the respondent. The court shall determine whether the respondent is able to afford an attorney. If the respondent cannot afford counsel, the court shall appoint either counsel from the legal services program operating in that jurisdiction or private counsel to represent the respondent. The attorney representing the respondent shall be provided with a copy of the certification immediately upon his or her appointment. Waiver of counsel must be knowingly and intelligently made in writing and filed with the court by the respondent. In the event that a respondent who is able to afford an attorney fails to pay the appointed counsel, such counsel, upon application to the court and after appropriate notice and hearing, may obtain a judgment for reasonable attorney fees against the respondent or person making request for such counsel or both the respondent and such person.

(6) The respondent for short-term treatment or his or her attorney may at any time file a written request that the certification for short-term treatment or the treatment be reviewed by the court or that the treatment be on an outpatient basis. If review is requested, the court shall hear the matter within ten days after the request, and the court shall give notice to the respondent and his or her attorney and the certifying and treating professional person of the time and place thereof. The hearing shall be held in accordance with section 27-65-111. At the conclusion of the hearing, the court may enter or confirm the certification for short-term treatment, discharge the respondent, or enter any other appropriate order, subject to available appropriations.

(7) Records and papers in proceedings under this section and section 27-65-108 shall be maintained separately by the clerks of the several courts. Upon the release of any respondent in accordance with the provisions of section 27-65-110, the facility shall notify the clerk of the court within five days of the release, and the clerk shall forthwith seal the record in the case and omit the name of the respondent from the index of cases in such court until and unless the respondent becomes subject to an order of long-term care and treatment pursuant to section 27-65-109 or until and unless the court orders them opened for good cause shown. In the event a petition is filed pursuant to section 27-65-109, such certification record may be opened and become a part of the record in the long-term care and treatment case and the name of the respondent indexed.

(8) Whenever it appears to the court, by reason of a report by the treating professional person or any other report satisfactory to the court, that a respondent detained for evaluation and treatment or certified for treatment should be transferred to another facility for treatment and the safety of the respondent or the public requires that the respondent be transported by a sheriff, the court may issue an order directing the sheriff or his or her designee to deliver the respondent to the designated facility.

Source: L. 2010: Entire article added with relocations, (SB 10-175), ch. 188, p. 686, § 2, effective April 29.

Editor's note: This section is similar to former § 27-10-107 as it existed prior to 2010.

ANNOTATION

I. GENERAL CONSIDERATION.

C.J.S. See 56 C.J.S., Mental Health, §§ 54, 55, 61-66.

Law reviews. For article, "Procedures for Involuntary Commitment on the Basis of Alleged Mental Illness", see 42 U. Colo. L. Rev. 231 (1970). For article, "Patients' Rights vs. Patients' Needs: The Right of the Mentally Ill to Refuse Treatment in Colorado", see 58 Den. L.J. 567 (1981). For article, "New Legislation Concerning the Mentally Disabled", see 11 Colo. Law. 2131 (1982). For article, "Pre-trial Technical Defenses to Mental Health Certification", see 17 Colo. Law. 1327 (1988). For article, "Perreira v. Colorado -- A Psychiatrist's Duty to Protect Others", see 18 Colo. Law. 2323 (1989). For article, "The Clinton Mental Health Case -- A Civil Procedure Lesson", see 19 Colo. Law. 1809 (1990). For article, "Clinton Redux: A Mental Health and Technical Defense Follow-up", see 22 Colo. Law. 2389 (1993).

Annotator's note. Since § 27-65-107 is similar to § 27-10-107 as it existed prior to the 2010 amendments to this article, relevant cases construing that provision have been included in the annotations to this section.

Constitutionality. Failure of this section to require a mandatory state-initiated hearing before the involuntary commitment of an individual for up to 90 days does not render the statute unconstitutional. Brown v. Jensen, 572 F. Supp. 193 (D. Colo. 1983); Curnow v. Yarbrough, 676 P.2d 1177 (Colo. 1984).

The term "danger" in subsection (1) (a) does not offend due process as long as the state proves by clear and convincing evidence that there is a reasonable basis to believe that the individual's mental illness results in a present danger to herself or others or renders her gravely disabled. People v. Stevens, 761 P.2d 768 (Colo. 1988).

Less restrictive alternatives need not be considered as a condition precedent to certification. Civil commitment constitutes a severe infringement of liberty requiring due process protection. However, the statutory scheme set forth in this article contains a number of procedural safeguards that greatly reduce the inherent risk of erroneous deprivation. Therefore, due process does not require a mandatory hearing at the time of certification since the statute provides for a hearing on request. People v. Stevens, 761 P.2d 768 (Colo. 1988).

Subsequent certification proceedings are not rendered invalid as a result of the certification for short-term treatment being set aside. People in Interest of Dveirin, 755 P.2d 1207 (Colo. 1988).

State's interest in certifying individual for short-term treatment is to provide care to one whose mental condition poses a threat to society or to the person himself. People v. Taylor, 618 P.2d 1127 (Colo. 1980).

Civil commitment statute must be liberally construed to promote the legislative purpose of encouraging the "use of voluntary rather than coercive measures to secure treatment and care for mental illness". Sisneros v. District Court, 199 Colo. 179, 606 P.2d 55 (1980).

This article is to be strictly construed to see that no limit is placed on a person's right to seek voluntary treatment. People v. Taylor, 618 P.2d 1127 (Colo. 1980).

Statutory definition of mental illness, on its own terms, cannot be read to intend that every idiosyncratic or eccentric person requires involuntary medical intervention. People v. Taylor, 618 P.2d 1127 (Colo. 1980).

Voluntary treatment program not terminated. Where voluntarily committed outpatient was off the hospital premises and was taken into custody by the police and then returned to the hospital, this did not, as a matter of law, terminate his voluntary treatment program. People in Interest of Henderson, 44 Colo. App. 102, 610 P.2d 1350 (1980).

Standard for liability of medical professionals. In determining whether to release an involuntarily committed mental patient, the psychiatrist has a legal duty to exercise due care, consistent with the knowledge and skill ordinarily possessed by psychiatric practitioners under similar circumstances, to determine whether the patient has a propensity for violence and would present an unreasonable risk of serious bodily harm to others. Perreira v. State, 768 P.2d 1198 (Colo. 1989).

In discharging his duty, a psychiatrist may be required to take reasonable precautions to protect the public from the danger created by the release giving due consideration to extending the term of the patient's commitment or placing appropriate conditions and restrictions on such release. Perreira v. State, 768 P.2d 1198 (Colo. 1989).

Standard for liability of medical professionals. No duty exists to prevent a third person from harming another unless a special relation exists between the actor and the wrongdoer or between the actor and the victim. Perreira v. State, 738 P.2d 4 (Colo. App. 1986).

Medical professionals involved in the care and treatment of a mentally ill patient have a legal duty under the "special relation" rule to prevent the patient from harming himself or others only if the patient in their care constitutes a danger to himself or to the safety of others. Perreira v. State, 738 P.2d 4 (Colo. App. 1986).

This danger may be shown by evidence of injurious acts, attempts, or threats by the patient. Perreira v. State, 738 P.2d 4 (Colo. App. 1986).

A psychotherapist treating a mental patient as an outpatient may fall under the special relation rule. Perreira v. State, 738 P.2d 4 (Colo. App. 1986).

Applied in Goedecke v. State Dept. of Insts., 198 Colo. 407, 603 P.2d 123 (1979); People in Interest of Paiz, 43 Colo. App. 352, 603 P.2d 976 (1979); People v. Chavez, 629 P.2d 1040 (Colo. 1981); In re P.F. v. Walsh, 648 P.2d 1067 (Colo. 1982); People v. Medina, 705 P.2d 961 (Colo. 1985).

II. PROCEDURAL REQUIREMENTS.

Involuntary commitment to mental hospital is deprivation of liberty which the state cannot accomplish without procedural safeguards. People v. Taylor, 618 P.2d 1127 (Colo. 1980).

This section sets out certain procedures which the general assembly and our courts have determined are adequate to protect a respondent's due process rights. These procedures include: (1) a professional decision to initiate the 72-hour evaluation; (2) professional medical evaluation at the time of involuntary short-term commitment; (3) notice concerning certification within 24 hours to the person committed; (4) notice concerning certification 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 petitioner; and (8) optional court appointment of an independent professional person to examine the respondent. Curnow v. Yarbrough, 676 P.2d 1177 (Colo. 1984); People in Interest of Reynes, 870 P.2d 518 (Colo. App. 1993).

Strict adherence to procedural requirements of this section is required because of the curtailment of personal liberty which results from certification for treatment of mental illness. Sisneros v. District Court, 199 Colo. 179, 606 P.2d 55 (1980).

In situations involving involuntary confinement, strict compliance with this article is a necessity. People in Interest of Henderson, 44 Colo. App. 102, 610 P.2d 1350 (1980).

Procedural prerequisites to obtaining certification must be met for court to have subject matter jurisdiction, so review of such issues is by court not jury. People in Interest of Bailey, 745 P.2d 280 (Colo. App. 1987).

Right to a mental health certification review hearing within 10 days of the filing of a petition for certification is for protection of certified person and may be waived by such person without vitiating jurisdiction of court. People in Interest of Lynch, 783 P.2d 848 (Colo. 1989).

When the procedural provisions of former § 27-10-105 are not followed, even a credible certification cannot cure the jurisdictional defect. People in Interest of Lloyd-Pellman, 844 P.2d 1309 (Colo. App. 1992).

Failure to convene hearing within 10 days after request is made as mandated by this section deprives court of subject matter jurisdiction to certify person for short-term treatment regardless of person's purported waiver. People in Interest of Lynch, 757 P.2d 145 (Colo. App. 1988), rev'd, 783 P.2d 848 (Colo. 1989).

The statutorily defined procedures for civil commitment proceedings have been applied to hearings involving the issue of nonconsensual treatment with antipsychotic medication. People ex rel. Ofengand, 183 P.3d 688 (Colo. App. 2008).

Because a committed patient's right to counsel during civil commitment proceedings is derived from the civil commitment statutes, any defect in respondent's waiver of counsel is analyzed under the standard applicable to statutory defects in civil commitment proceedings. People ex rel. Ofengand, 183 P.3d 688 (Colo. App. 2008).

Where respondent seeks reversal of civil commitment order based on the failure to comply strictly with statutory requirements, and where the defect, if any, does not implicate the jurisdiction of the trial court to grant the order, the appeals court's inquiry is whether the defect concerns a failure to comply with essential statutory provisions grave enough to undermine confidence in the fairness and outcome of the certification proceedings. People ex rel. Ofengand, 183 P.3d 688 (Colo. App. 2008).

This inquiry includes: (1) the evaluation of the gravity of the deviation from statutory provisions, including a consideration of due process concerns; and (2) a determination of any prejudice to respondent caused by the deviation. People ex rel. Ofengand, 183 P.3d 688 (Colo. App. 2008).

Patient to be advised of available, voluntary treatments. A trial court exceeds its jurisdiction in affirming a petitioner's short-term certification, in light of the uncontroverted jury finding that the petitioner had not been properly advised of the availability of voluntary treatment for mental illness, as required by this section. Sisneros v. District Court, 199 Colo. 179, 606 P.2d 55 (1980).

Privilege against self-incrimination is inapplicable to civil commitment proceedings. Due process does not require that the fifth amendment privilege against self-incrimination be extended to this state's civil commitment proceedings. People v. Taylor, 618 P.2d 1127 (Colo. 1980).

Former sections 27-10-111 (1) and 27-10-107 (3), read together, clearly and unambiguously grant a right to a jury hearing to a person being certified for short-term treatment. People in Interest of Hoylman, 865 P.2d 918 (Colo. App. 1993).

Failure to abide by statutory requirement of forthwith appointment of counsel in mental health certification proceeding did not constitute personal jurisdiction defect, as requirement for appointment of counsel did not affect the nature of notice to be given to mentally ill person or statutory requirements for acquisition of jurisdiction over person. People in Interest of Clinton, 762 P.2d 1381 (Colo. 1988).

Reversible error where trial court failed to comply with essential statutory provision requiring respondent's waiver of counsel to be made knowingly, intelligently, and in writing in a hearing involving a petition for involuntary administration of medication. People ex rel. Ofengand, 183 P.3d 688 (Colo. App. 2008).

III. FINDINGS NECESSARY.

If it is shown that person is mentally ill, short-term involuntary commitment cannot be justified unless it is shown that, as a result of such illness, the person is: (1) a danger to others; (2) a danger to himself; (3)"gravely disabled" because of an inability to take care of basic personal needs; or (4) "gravely disabled" because the person is "making irrational or grossly irresponsible decisions concerning his person and lacks the capacity to understand this is so". People v. Taylor, 618 P.2d 1127 (Colo. 1980).

Section requires that causal nexus be established between a person's mental illness and the condition of being a danger to others or to himself or gravely disabled. People v. Taylor, 618 P.2d 1127 (Colo. 1980).

Disability sufficient to justify involuntary commitment must arise as result of mental illness; and in keeping with the statutory purpose, it must be so grave that the person's safety is threatened by his inability to take care of his basic personal needs. People v. Taylor, 618 P.2d 1127 (Colo. 1980).

Mere disability alone is insufficient to warrant involuntary commitment. Mere disability alone, even if found in conjunction with mental illness, is not enough to warrant involuntary commitment. People v. Taylor, 618 P.2d 1127 (Colo. 1980).

Dangerousness to others may be shown by evidence of injurious acts, attempts, or threats. People v. Taylor, 618 P.2d 1127 (Colo. 1980).

Dangerousness to oneself may be shown by similar evidence, where the individual's injurious behavior is directed toward himself. People v. Taylor, 618 P.2d 1127 (Colo. 1980).

Passive injury to oneself, because of an inability to take care of one's most basic personal needs, may be as dangerous or damaging to the individual as the active threat posed by suicide. People v. Taylor, 618 P.2d 1127 (Colo. 1980).

Standard of proof necessary to commit for short-term involuntary psychiatric treatment, "clear and convincing evidence", adopted by the general assembly for treatment, strikes a fair balance between the interest of the individual and the interest of the state. People v. Taylor, 618 P.2d 1127 (Colo. 1980).

Standard of proof met. Where three medical experts testified at appellant's certification hearing that she was dangerous or potentially dangerous to herself or to others there was clear and convincing evidence that there was a reasonable basis to believe that appellant's mental illness resulted in a present danger to herself or others, thereby satisfying the prerequisite conditions for short-term certification. People v. Stevens, 761 P.2d 768 (Colo. 1988).

C.R.S. § 27-65-108. Extension of short-term treatment.

If the professional person in charge of the evaluation and treatment believes that a period longer than three months is necessary for treatment of the respondent, he or she shall file with the court an extended certification. No extended certification for treatment shall be for a period of more than three months. The respondent shall be entitled to a hearing on the extended certification under the same conditions as in an original certification. The attorney initially representing the respondent shall continue to represent that person, unless the court appoints another attorney.

Source: L. 2010: Entire article added with relocations, (SB 10-175), ch. 188, p. 688, § 2, effective April 29.

Editor's note: This section is similar to former § 27-10-108 as it existed prior to 2010.

ANNOTATION

Law reviews. For article, "Patients' Rights vs. Patients' Needs: The Right of the Mentally Ill to Refuse Treatment in Colorado", see 58 Den. L.J. 567 (1981).

Annotator's note. Since § 27-65-108 is similar to § 27-10-108 as it existed prior to the 2010 amendments to this article, relevant cases construing that provision have been included in the annotations to this section.

Applied in People v. Lane, 196 Colo. 42, 581 P.2d 719 (l978); People in Interest of Paiz, 43 Colo. App. 352, 603 P.2d 976 (1979); In re P.F. v. Walsh, 648 P.2d 1067 (Colo. 1982); Brown v. Jensen, 572 F. Supp. 193 (D. Colo. 1983).

C.R.S. § 27-65-109. Long-term care and treatment of persons with mental illness.

(1) Whenever a respondent has received short-term treatment for five consecutive months under the provisions of sections 27-65-107 and 27-65-108, the professional person in charge of the evaluation and treatment may file a petition with the court for long-term care and treatment of the respondent under the following conditions:

(a) The professional staff of the agency or facility providing short-term treatment has analyzed the respondent's condition and has found that the respondent has a mental illness and, as a result of the mental illness, is a danger to others or to himself or herself or is gravely disabled.

(b) The respondent has been advised of the availability of, but has not accepted, voluntary treatment; but, if reasonable grounds exist to believe that the respondent will not remain in a voluntary treatment program, his or her acceptance of voluntary treatment shall not preclude an order pursuant to this section.

(c) The facility that will provide long-term care and treatment has been designated or approved by the executive director to provide the care and treatment.

(2) Every petition for long-term care and treatment shall include a request for a hearing before the court prior to the expiration of six months from the date of original certification. A copy of the petition shall be delivered personally to the respondent for whom long-term care and treatment is sought and mailed to his or her attorney of record simultaneously with the filing thereof.

(3) Within ten days after receipt of the petition, the respondent or his or her attorney may request a jury trial by filing a written request therefor with the court.

(4) The court or jury shall determine whether the conditions of subsection (1) of this section are met and whether the respondent has a mental illness and, as a result of the mental illness, is a danger to others or to himself or herself or is gravely disabled. The court shall thereupon issue an order of long-term care and treatment for a term not to exceed six months, or it shall discharge the respondent for whom long-term care and treatment was sought, or it shall enter any other appropriate order, subject to available appropriations. An order for long-term care and treatment shall grant custody of the respondent to the department for placement with an agency or facility designated by the executive director to provide long-term care and treatment. When a petition contains a request that a specific legal disability be imposed or that a specific legal right be deprived, the court may order the disability imposed or the right deprived if it or a jury has determined that the respondent has a mental illness or is gravely disabled and that, by reason thereof, the person is unable to competently exercise said right or perform the function as to which the disability is sought to be imposed. Any interested person may ask leave of the court to intervene as a copetitioner for the purpose of seeking the imposition of a legal disability or the deprivation of a legal right.

(5) An original order of long-term care and treatment or any extension of such order shall expire upon the date specified therein, unless further extended as provided in this subsection (5). If an extension is being sought, the professional person in charge of the evaluation and treatment shall certify to the court at least thirty days prior to the expiration date of the order in force that an extension of the order is necessary for the care and treatment of the respondent subject to the order in force, and a copy of the certification shall be delivered to the respondent and simultaneously mailed to his or her attorney of record. At least twenty days before the expiration of the order, the court shall give written notice to the respondent and his or her attorney of record that a hearing upon the extension may be had before the court or a jury upon written request to the court within ten days after receipt of the notice. If no hearing is requested by the respondent within such time, the court may proceed ex parte. If a hearing is timely requested, it shall be held before the expiration date of the order in force. If the court or jury finds that the conditions of subsection (1) of this section continue to be met and that the respondent has a mental illness and, as a result of the mental illness, is a danger to others or to himself or herself or is gravely disabled, the court shall issue an extension of the order. Any extension shall be for a period of not more than six months, but there may be as many extensions as the court orders pursuant to this section.

Source: L. 2010: Entire article added with relocations, (SB 10-175), ch. 188, p. 688, § 2, effective April 29.

Editor's note: This section is similar to former § 27-10-109 as it existed prior to 2010.

ANNOTATION

C.J.S. See 56 C.J.S., Mental Health, §§ 49, 50.

Law reviews. For article, "Patients' Rights vs. Patients' Needs: The Right of the Mentally Ill to Refuse Treatment in Colorado", see 58 Den. L.J. 567 (1981). For article, "Legal But Not Fair: Legal Implications of a Mental Illness Medical Model", see 11 Colo. Law. 1234 (1982). For article, "Pre-trial Technical Defenses to Mental Health Certification", see 17 Colo. Law. 1327 (1988).

Annotator's note. Since § 27-65-109 is similar to § 27-10-109 as it existed prior to the 2010 amendments to this article, relevant cases construing that provision have been included in the annotations to this section.

The term "danger" in subsection (1)(a) does not offend due process as long as the state proves by clear and convincing evidence that there is a reasonable basis to believe that the individual's mental illness results in a present danger to herself or others or renders her gravely disabled. People v. Stevens, 761 P.2d 768 (Colo. 1988).

Less restrictive alternatives need not be considered as a condition precedent to certification. Civil commitment constitutes a severe infringement of liberty requiring due process protection. However, the statutory scheme set forth in this article contains a number of procedural safeguards that greatly reduce the inherent risk of erroneous deprivation. Therefore, due process does not require a mandatory hearing at the time of certification since the statute provides for a hearing on request. People v. Stevens, 761 P.2d 768 (Colo. 1988).

These statutory requirements are mandatory and must be strictly carried out. Watkins v. People, 140 Colo. 228, 344 P.2d 682 (1959).

Thus, the failure to deliver personally to a respondent in a mental health proceeding a copy of the petition for long-term care and treatment, as required by subsection (2), deprives the court of personal jurisdiction over the respondent to proceed on the petition and does not toll the relevant time limits for a hearing on the petition. Gilford v. People, 2 P.3d 120 (Colo. 2000).

But only statutory deviations that are considered serious enough to undermine the confidence in the fairness and outcome of judicial proceedings will justify a dismissal of an order that was not made in strict compliance with procedural aspects of the civil commitment statutes. Hearing for extension of long-term care and treatment and for administration of involuntary medications that took place six days after expiration of respondent's certification was held not to undermine the confidence in the fairness and outcome of the certification proceedings when respondent received a full hearing and had previously declined to have the hearing before the expiration date of the certification. People in Interest of Gilford, 983 P.2d 156 (Colo. App. 1999), cert. denied, No. 99SC404 (Colo. Aug. 23, 1999).

Key inquiry in determining whether a failure to follow the civil commitment statute was a violation of an individual's due process rights is whether the failure violates an "essential condition" of the statute. Such determination is made by evaluating the gravity of the deviation from the statutory procedures and requires consideration of any due process concerns and any prejudice to the respondent. People in Interest of Gilford, 983 P.2d 156 (Colo. App. 1999), cert. denied, No. 99SC404 (Colo. Aug. 23, 1999).

Special statutory proceeding. An action in the district court to inquire into the mental health of a party can best be described as a special statutory proceeding; it is neither a criminal case nor a civil action. Sabon v. People, 142 Colo. 323, 350 P.2d 576 (1960).

Request for jury trial must be honored. Where the respondent or his attorney requests a jury trial, the court is required to honor the request. Young v. Brofman, 139 Colo. 296, 338 P.2d 286 (1959).

Defendant held to have been wrongfully deprived of opportunity to demand a jury trial. Hultquist v. People, 77 Colo. 310, 236 P. 995 (1925).

Court may enter judgment notwithstanding the verdict on jury's factual finding under this section as a matter of law when the evidence is undisputed. People in Interest of Lees, 745 P.2d 281 (Colo. App. 1987).

The determination at a certification hearing as to whether a person is "gravely disabled" must focus on the individual's existing condition and not on the possibility of future relapse. People in Interest of Bucholz, 778 P.2d 300 (Colo. App. 1989).

Underlying propensity for dangerousness, even though related to future conduct, is sufficient to meet the test of presenting a danger to one's self and others. People in Interest of King, 795 P.2d 273 (Colo. App. 1990).

Review of commitment order based on erroneous diagnosis. Where an order of commitment is based on an erroneous diagnosis, that order can be reviewed on appeal. Zimmerman v. Angele, 137 Colo. 129, 321 P.2d 1105 (1958).

Subsection (5) extension runs from expiration of previous order. The period of extension allowed by subsection (5) is to run from the date the previous order expires, and not from the date the extension order is entered. People in Interest of Archuleta, 653 P.2d 93 (Colo. App. 1982).

Person confined only to extent necessary to protect society. A person who is found to be mentally ill is treated and confined only to the extent necessary for the protection of society. Parks v. Denver District Court, 180 Colo. 202, 503 P.2d 1029 (1972).

Medication not to be given over incompetent's objection absent court order. Absent an emergency situation calling for immediate action (in which event the least intrusive means should be used by the physician to meet the emergency), antipsychotic medication shall not be administered to a mentally incompetent institutionalized patient who has not given his consent to this medication unless ordered by a court following a proper hearing. People in Interest of Medina, 662 P.2d 184 (Colo. App. 1982), aff'd, 705 P.2d 961 (Colo. 1985).

Order for involuntary medication must not extend beyond expiration date of the order of long-term care and treatment. Hopkins v. People, 772 P.2d 624 (Colo. App. 1988).

Applied in People v. Lane, 196 Colo. 42, 581 P.2d 719 (1978); People in Interest of Paiz, 43 Colo. App. 352, 603 P.2d 976 (1979); People v. Chavez, 629 P.2d 1040 (Colo. 1981); Brown v. Jensen, 572 F. Supp. 193 (D. Colo. 1983); People in Interest of Kleinfieldt, 680 P.2d 864 (Colo. App. 1984).

C.R.S. § 27-65-110. Termination of short-term and long-term treatment - escape.

(1) An original certification for short-term treatment under section 27-65-107, or an extended certification under section 27-65-108, or an order for long-term care and treatment or any extension thereof shall terminate as soon as, in the opinion of the professional person in charge of treatment of the respondent, the respondent has received sufficient benefit from such treatment for him or her to leave. Whenever a certification or extended certification is terminated under this section, the professional person in charge of providing treatment shall so notify the court in writing within five days of such termination. Such professional person may also prescribe day care, night care, or any other similar mode of treatment prior to termination.

(2) Before termination, an escaped respondent may be returned to the facility by order of the court without a hearing or by the superintendent or director of such facility without order of court. After termination, a respondent may be returned to the institution only in accordance with the provisions of this article.

Source: L. 2010: Entire article added with relocations, (SB 10-175), ch. 188, p. 689, § 2, effective April 29.

Editor's note: This section is similar to former § 27-10-110 as it existed prior to 2010.

ANNOTATION

Law reviews. For article, "Patients' Rights vs. Patients' Needs: The Right of the Mentally Ill to Refuse Treatment in Colorado", see 58 Den. L.J. 567 (1981). For article, "Perreira v. Colorado -- A Psychiatrist's Duty to Protect Others", see 18 Colo. Law. 2323 (1989).

Annotator's note. Since § 27-65-110 is similar to § 27-10-110 as it existed prior to the 2010 amendments to this article, relevant cases construing that provision have been included in the annotations to this section.

Superintendent may release inmate only upon restoration to reason. The only ground upon which the superintendent of the Colorado state hospital can legally release an inmate therefrom is restoration to reason. People ex rel. Best v. County Court, 110 Colo. 249, 132 P.2d 799 (1942).

When person is no longer insane he is restored to reason, and, consequently, when the court found respondent not mentally ill as charged in the complaint, the court had a duty to order her discharged, and in failing to do so, it committed error. In re People in Interest of Hill, 118 Colo. 571, 198 P.2d 450 (1948).

Standard of care for determining release. In determining whether to release an involuntarily committed mental patient, the psychiatrist has a legal duty to exercise due care, consistent with the knowledge and skill ordinarily possessed by psychiatric practitioners under similar circumstances to determine whether the patient has a propensity for violence and would present an unreasonable risk of serious bodily harm to others. Perreira v. State, 768 P.2d 1198 (Colo. 1989).

In discharging his duty, a psychiatrist may be required to take reasonable precautions to protect the public from the danger created by the release giving due consideration to extending the term of the patient's commitment or placing appropriate conditions and restrictions on such release. Perreira v. State, 768 P.2d 1198 (Colo. 1989).

Order remanding inmate to asylum without new trial by jury held proper. Where it appeared to the district court that an inmate of the state insane asylum, having received a probationary discharge, was not restored to reason, an order remanding him to the asylum without a new trial by jury was held proper. Metaxos v. People, 76 Colo. 264, 230 P. 608 (1924).

Distinction permitted from escape by person committed by criminal insanity adjudication. Given the state's obvious interest in protecting the public from those who previously have engaged in overt criminal conduct but have been relieved of criminal responsibility by reason of legal insanity, there is no difficulty in finding a rational basis for legislation that proscribes as criminal a knowing escape by a person committed to an institution as a result of an insanity adjudication in a criminal case, but does not impose a similar sanction upon a person who escapes from a facility to which he has been civilly committed. People v. Giles, 662 P.2d 1073 (Colo. 1983).

For continuing jurisdiction of district court, see Zimmerman v. Angele, 137 Colo. 129, 321 P.2d 1105 (1958).

Applied in People v. Chavez, 629 P.2d 1040 (Colo. 1981).