Guest Columns

MARES: COLORADO STILL HAS A LONG WAY TO GO

Updating Colorado’s civil commitment laws is an important, and long overdue, step

The Colorado Statesman

One of the many valuable things about an organization as long-lived and venerable as Mental Health America of Colorado is the historical and often personal context we bring to discussions on a wide range of issues. Our perspective is not just a sterile record of laws and budgets, but the living history of people who have worked together for 60 years to transform our state for the better.

The issue of involuntary civil commitment for mental illness — holding and treating people against their will because they pose a danger to themselves or others, or cannot remain safe on their own — was once synonymous with America’s “insane asylums.” For generations so-called state hospitals in Colorado and across the country were grim warehouses for Americans with mental illnesses, emotional problems, and physical and intellectual disabilities. The movement to reduce the institutionalization of people with mental health and other conditions, and to build local systems of care that allow people to live in their home communities, was the primary focus of our organization’s founders back in 1953.

We understand the need for involuntary treatment that provides potentially lifesaving emergency care to individuals experiencing a behavioral health crisis. We support the health care and law enforcement professionals for whom it is an indispensable tool in protecting public health and safety. We also believe involuntary treatment should be rare, used as a last resort whenever possible, and integrated seamlessly into a continuum of care. Science and the experience of individuals with behavioral health conditions have taught us that voluntary, self-directed care that is sensitive to personal histories of trauma is the most effective form of treatment.

During the 2013 legislative session we worked with the Colorado Department of Human Services and our community partners in support of Colorado House Bill 13-1296. Signed by the Governor at the Jefferson Center for Mental Health on May 16, the bill created a task force charged with drafting a report to the legislature and approving definitions of key terms in the civil commitment process. The bill directed the task force’s report, among other things, to make recommendations concerning the consolidation of Colorado’s three separate civil commitment statutes for the treatment of mental health, alcohol, and substance use disorders. We were glad to accept the state’s invitation to serve on this task force as representatives of Colorado’s mental health advocacy community.

Our predecessors at MHAC wrote and passed Colorado’s original mental health commitment act in 1957. Prior to this law there were virtually no legal protections for Coloradans who had mental illnesses, Alzheimer’s disease, cerebral palsy, or any condition that could affect an individual’s ability to remain safely in his or her community. People with mental illnesses and other disabilities routinely were sent to the old Colorado State Hospital in Pueblo. There they experienced inhumane conditions and treatment and often had little hope of regaining their freedom. The 1957 law established a court-based commitment procedure that extended the protections of due process to individuals facing civil commitments. It also allowed for short-term emergency commitments of individuals experiencing a mental health crisis that did not require a court order.

In the 1970s, following a landmark U.S. Supreme Court ruling that essentially decriminalized alcoholism and drug addiction, Colorado created two additional civil commitment procedures for the involuntary treatment of those disorders. As with mental health civil commitments, the drug and alcohol statutes included short-term emergency hold procedures as well as more restrictive provisions for long-term involuntary commitment. These laws reflected the prejudices of their time, guaranteeing certain protections in the alcohol commitment process that were denied when it came to other substances.

Charged with making recommendations about the consolidation of these three statutory processes, the 30 concerned, well-informed, highly experienced members of the civil commitment task force met weekly, usually broken up into smaller workgroups, from July through October. These workgroups discussed everything from the role of the state in civil commitments, to the needs and concerns of family members, to the scarcity of behavioral health treatment and other resources in rural Colorado. We often ended up commiserating over the obvious yet deeply frustrating reality that there simply are not enough services in our state to meet the needs of all Coloradans with behavioral health conditions.

The final report of the task force represents a great effort on the part of the Colorado Office of Behavioral Health and the many individuals and organizations that contributed to the various workgroups. Here are some of the major recommendations included in the report:

• The task force approved a definition of the word “danger” as it applies to the threshold standard of posing a “danger to self or others” in mental health and substance use disorder emergency holds. By clarifying the meaning of this previously undefined term, we aim to ensure that all health care and law enforcement professionals across Colorado who initiate emergency holds will be using the same standard.

• While the task force report found that the merging of all three civil commitment statutes will require further study, it did recommend consolidating the two sets of procedures for alcohol and substance use disorder treatment. The report contains a model combination of these laws that better protects individuals’ civil liberties and reduces bureaucratic obstacles currently facing treatment facilities. It also recommends aligning legal requirements such as mandatory hearings, appointment of counsel, and the termination of treatment between the mental health and combined substance use disorder statutes.

• Just as other health care advance directives help doctors honor a patient’s wishes and can improve health outcomes, directives for behavioral health treatment can help ensure people who are subject to civil commitments receive appropriate care. The task force proposed statutory language defining a behavioral health advance directive that can be used when an individual loses the capacity to make informed decisions about, or participate in his or her own care. We recommended that facilities that treat people on civil commitments be required to ask them if they have advance directives, to follow such directives to the extent that is medically appropriate, and to offer people without directives assistance with creating one.

These recommendations are starting points, not conclusions. While there were many things on which the task force generally agreed, if there was one overarching consensus it was that Colorado has a long way to go before it adequately can meet the needs of the tens of thousands of men and women who are placed on emergency holds each year.

MHAC sees it as part of our continuing mission, stretching back 60 years, to pursue an all-of-the-above approach to address the issues raised by the task force. We look forward to working with our partners to make further refinements to Colorado’s civil commitment processes, to expand access to voluntary treatment, and to improve the lives of all Coloradans with behavioral health conditions.

Don Mares, President & CEO of Mental Health America of Colorado, is a family member of an individual with a mental health condition. Before joining MHAC Don was a lawyer, Colorado state senator, Denver City Auditor, and the Director of the Colorado Department of Employment & Labor.