CO Code § 27-65-105 (2021)
2021 Colorado Code|Title 27 - Behavioral Health|Article 65 - Care and Treatment of Persons With Mental Health Disorders|§ 27-65-105. Emergency Procedure

  Emergency procedure may be invoked under one of the following conditions:     When any person appears to have a mental health disorder and, as a result of such mental health disorder, appears to be an imminent danger to others or to himself or herself or appears to be gravely disabled, then an intervening professional, as specified in subsection (1)(a)(II) of this section, 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. If such a facility is not available, the person may be taken to an emergency medical services facility. (a) (I) When any person appears to have a mental health disorder and, as a result of such mental health disorder, appears to be an imminent danger to others or to himself or herself or appears to be gravely disabled, then an intervening professional, as specified in subsection (1)(a)(II) of this section, 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. If such a facility is not available, the person may be taken to an emergency medical services facility.  (I.5) When any person appears to have a mental health disorder and, as a result of such mental health disorder, is in need of immediate evaluation for treatment in order to prevent physical or psychiatric harm to others or to himself or herself, then an intervening professional, as specified in subsection (1)(a)(II) of this section, upon probable cause and with such assistance as may be required, may immediately transport the person to an outpatient mental health facility or other clinically appropriate facility designated or approved by the executive director. If such a facility is not available, the person may be taken to an emergency medical services facility.     The following persons may act as intervening professionals to effect a seventy-two-hour hold, as provided in subsections (1)(a)(I) and (1)(a)(I.5) of this section:   A certified peace officer;    A professional person;    A registered professional nurse as defined in section 12-255-104 (11) who by reason of postgraduate education and additional nursing preparation has gained knowledge, judgment, and skill in psychiatric or mental health nursing;    A licensed marriage and family therapist, licensed professional counselor, or addiction counselor licensed under part 5, 6, or 8 of article 245 of title 12 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 health disorders; or    A licensed clinical social worker licensed under the provisions of part 4 of article 245 of title 12.          Upon an 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 mental health disorder, 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 65 a facility is to be designated or approved by the executive director, hospitals, if available, must be approved or designated in each county before other facilities are approved or designated. Whenever in this article 65 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 is a prerequisite to the designation or approval.    Upon an 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 mental health disorder, is in need of immediate evaluation for treatment to prevent physical or psychiatric harm to others or to himself or herself, the court may order the person described in the affidavit to be transported to an outpatient mental health facility or other clinically appropriate facility designated or approved by the executive director.       When a person is taken into custody pursuant to subsection (1) of this section, he or she must not be detained in a jail, lockup, or other place used for the confinement of persons charged with or convicted of penal offenses.    When a person is taken into emergency custody by an intervening professional pursuant to subsection (1) of this section and is presented to an emergency medical services facility or a facility that is designated or approved by the executive director, the 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 intervening professional's personal observations or obtained from others whom he or she reasonably believes to be reliable, to establish that the person has a mental health disorder and, as a result of the mental health disorder, is an imminent danger to others or to himself or herself, is gravely disabled, or is in need of immediate evaluation for treatment. The application must 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 must be furnished to the person being evaluated, and the application must be retained in accordance with the provisions of section 27-65-121 (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.    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.    At any time during emergency custody of an individual pursuant to this section in either an emergency medical services facility or a designated facility, if, in the opinion of a professional person, or an advanced practice nurse licensed pursuant to part 1 of article 255 of title 12 and included in the advanced practice registry pursuant to section 12-255-111 with a population focus in psychiatry or mental health, acting within his or her scope of practice, the person no longer meets the standards for emergency custody or detention and his or her care can be provided in another setting, the person must be appropriately discharged or referred for further care and treatment on a voluntary basis, or certified for treatment pursuant to section 27-65-107.      On or before July 1, 2019, and each July 1 thereafter, each emergency medical services facility that has treated a person pursuant to this section shall provide an annual report to the department that includes only aggregate and nonidentifying information concerning persons who were treated at an emergency medical services facility pursuant to this section. The report must comply with the provisions of section 24-1-136 (9) and is exempt from the provisions of section 24-1-136 (11)(a)(I). The report must contain the following:   The names and counties of the facilities;    The total number of persons treated pursuant to this section, including a summary of demographic information;    A summary regarding the different reasons for which persons were treated pursuant to this section; and    A summary of the disposition of persons transferred to a designated facility.         Any information aggregated and provided to the department pursuant to this subsection (7) is privileged and confidential. Such information must not be made available to the public except in an aggregate format that cannot be used to identify an individual facility. The information is not subject to civil subpoena and is not discoverable or admissible in any civil, criminal, or administrative proceeding against an emergency medical services facility or health-care professional. The information must be used only to assess statewide behavioral health services needs and to plan for sufficient levels of statewide behavioral health services. In the collection of data to accomplish the requirements of this subsection (7), the department shall protect the confidentiality of patient records, in accordance with state and federal laws, and shall not disclose any public identifying or proprietary information of any hospital, hospital administrator, health-care professional, or employee of a health-care facility. (b) (I) Any information aggregated and provided to the department pursuant to this subsection (7) is privileged and confidential. Such information must not be made available to the public except in an aggregate format that cannot be used to identify an individual facility. The information is not subject to civil subpoena and is not discoverable or admissible in any civil, criminal, or administrative proceeding against an emergency medical services facility or health-care professional. The information must be used only to assess statewide behavioral health services needs and to plan for sufficient levels of statewide behavioral health services. In the collection of data to accomplish the requirements of this subsection (7), the department shall protect the confidentiality of patient records, in accordance with state and federal laws, and shall not disclose any public identifying or proprietary information of any hospital, hospital administrator, health-care professional, or employee of a health-care facility.    Subsection (7)(b)(I) of this section does not apply to information that is otherwise available from a source outside of the data collection activities required pursuant to subsection (7)(a) of this section.           History. Source: L. 2010: Entire article added with relocations,(SB 10-175), ch. 188, p. 682, § 2, effective April 29. L. 2011: (1)(a)(II)(D) amended,(SB 11-187), ch. 285, p. 1329, § 75, effective July 1. L. 2017: (1)(a)(I), IP(1)(a)(II), (1)(b), and (3) amended,(SB 17-242), ch. 263, p. 1341, § 235, effective May 25; (1), (2), and (3) amended and (6) and (7) added,(SB 17-207), ch. 205, p. 766, § 7, effective May 1, 2018. L. 2019: (1)(a)(II)(C), (1)(a)(II)(D), (1)(a)(II)(E), and (6) amended,(HB 19-1172), ch. 136, p. 1713, § 199, effective October 1. L. 2020: (6) amended,(HB 20-1183), ch. 157, p. 705, § 66, effective July 1.    Editor's note:    This section is similar to former § 27-10-105 as it existed prior to 2010.    Amendments to subsections (1) and (3) by SB 17-242 and SB 17-207 were harmonized.     Cross references:   For the legislative declaration in SB 17-242, see section 1 of chapter 263, Session Laws of Colorado 2017. For the legislative declaration in SB 17-207, see section 1 of chapter 205, Session Laws of Colorado 2017.   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). For article, “How to Reconcile Advance Care Directives With Attempted Suicide”, see 42 Colo. Law. 97 (July 2013).   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).   Private hospital and privately employed doctor and nurse were not “state actors” who could be held liable for a constitutional violation under 42 U.S.C. § 1983. Wittner v. Banner Health, 720 F.3d 770 (10th Cir. 2013).   This section's grant of authority for a short-term involuntary hold in a private hospital does not pass the nexus/compulsion test for turning the private action of the hospital or the certifying doctor into state action. Wittner v. Banner Health, 720 F.3d 770 (10th Cir. 2013).   Involuntary commitment of the mentally ill is not a public function, that is, a traditional and exclusive function of the state, and thus state action. Wittner v. Banner Health, 720 F.3d 770 (10th Cir. 2013).   Private actor not transformed into a state actor under a joint action test. Allowing a hospital to hold a patient does not make the state responsible for a doctor's decision to medicate the patient, depriving the patient of constitutional rights. Wittner v. Banner Health, 720 F.3d 770 (10th Cir. 2013).   State's relationship with a private actor is no more than the mere private purchase of contract services. Public-private relationship did not transcend that of mere client and contractor because the private and public actors did not commingle their responsibilities. The state lacked the authority to unilaterally place patients at the hospital; it merely authorized the hospital to accept patients if it so chose. Wittner v. Banner Health, 720 F.3d 770 (10th Cir. 2013).   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 ).