Expanding Mental Health Autonomy in Colorado

R. Tanner Sledge

 

Approximately 3.7% or around 143,000 adults in Colorado experience a serious mental illness in a given year.[1] The majority of these individuals suffer from either schizophrenia or severe bipolar disorder.[2] Yet, those with serious mental illnesses only experience episodes of serious symptoms occasionally.[3] At times, they are capable of making safe and rational decisions.[4] However, when a crisis does occur, the mentally ill patient is often subject to involuntary and coercive treatment.[5] In Colorado, coercive treatment can come in the form of an involuntary transportation for immediate screening or through a court-ordered seventy-two-hour involuntary mental health hold.[6] In 2017, nearly 35,000 people were put on an involuntary hold and over 5,000 of those were placed on multiple holds.[7] While on the involuntary hold, the adult is often subject to involuntary medication or treatment.[8]

While some mental health experts believe that involuntary holds are necessary to prevent crimes, violence to self, or violence to others, there is a growing group within the mental health community that finds involuntary holds to be problematic.[9] Organizations such as Mental Health America and The National Alliance on Mental Illness argue that involuntary holds add unnecessary stress and trauma, while lowering the effectiveness of treatment and the likelihood of recovery.[10] These organizations argue that providing mental health patients with more autonomy over what their care should look like would improve their access to quality care.[11]

Adults suffering from a serious mental illness often have a distorted perception of reality that renders them incapable of making decisions in their best interests.[12] While under an involuntary hold, the adult’s choices and wishes are overridden by a psychiatrist.[13] However, because those with serious mental illnesses experience severe symptoms only occasionally, they have the capacity to make autonomous decisions when they are in a healthier mental state.[14] Mental health experts recommend granting adults that suffer from a serious mental illness autonomy by allowing them to establish a directive for the administration of behavioral health treatment. Health care providers could use the directive in the event of a psychiatric crisis where the adult lacks the capacity to make decisions or give informed consent.[15] Mental health organizations in Colorado have lobbied and supported legislation to “ensure people can create advance psychiatric directives that instruct treatment providers” to take into consideration the adult’s desired treatment and medications.[16]

Recently, the Colorado legislature passed a bill that would allow for mental health advance directives.[17] The bill, HB-19-0144, allows adults to create a behavioral health order form that states the adult’s preferred medication and treatment.[18] The bill was signed by Governor Polis on March 28, 2019 and will go into effect on August 2, 2019.[19]

Current Involuntary Holds

Under the current Colorado mental health laws, to be placed in a seventy-two-hour involuntary hold, the adult must be gravely disabled or pose an imminent danger to themselves or someone else.[20] While “imminent danger” is a high standard to meet, police officers, therapists, counselors, nurses, and other mental health experts can place an involuntary transportation hold on the adult if it appears that the adult could cause “physical or psychiatric harm to others or to himself or herself.”[21] Psychiatric harm is not defined in the statute. The difference between a transportation hold and a seventy-two hour hold is that to be placed in a seventy-two-hour hold, the evaluator must have a much higher degree of certainty that the adult will cause danger to himself or others through a “recent overt act, attempt, or threat.”[22] If the police officer or mental health expert determines that the individual could cause physical or psychiatric harm, then the individual is transported against their will, usually in a police car, to be further evaluated by a mental health professional. The mental health professional will then determine if the individual needs to be placed on a seventy-two-hour hold.[23]

Once the adult is placed in an involuntary hold, the adult loses the autonomy to consent or reject treatment and medication.[24] The emergency medical personnel can place the adult in isolation, put them in uncomfortable restraints, and give them medication in excessive doses that can cause severe side effects.[25] The experience can be extremely traumatic, and experts argue that while the hold is necessary to prevent harm, the seventy-two-hour hold is ineffective in treating the individual, and can make them less likely to seek future help and treatment.[26] The legislature, recognizing defects in current mental health law, recently passed HN-19-1044 that will provide more autonomy for adults suffering from mental illness.[27]

Purpose of HB-19-1044

            The advance behavioral health orders bill allows for adults over the age of eighteen to create a mental health order that provides his or her mental health history, treatment preferences, and decisions regarding their mental health.[28] The legislature recognizes that the current mental health laws do not adequately address the complexities of mental health treatment.[29] Under the bill, an advance directive order is defined as a written statement “concerning behavioral health treatment, medication, and alternative decisions, preferences, and history to be made on behalf of the adult who provided the instruction.”[30]

Behavioral Health Form

Under the recently signed bill, a behavioral health order form must include the adult’s identifying information, instructions regarding mental health treatment and preferred alternatives, agent information, and preferred health care provider information. While the bill requires the signature of the adult, their agent, and two witnesses, it does not require that a mental health professional sign the order from.[31] While this omission gives the adult more autonomy to create what he or she believes is the best course of action without perceived pressure from their health care provider, emergency care providers might not act with the same level of deference as they would if the health order form was inspected and signed by a respected expert. Each behavioral health order form will be valid for two years after the adult has signed the form.[32]

A behavioral health order form will not be considered a valid medical history form. The adult is free to withhold or disclose past examinations, services, procedures, or medications.[33] The behavioral health form simply details the preferences of the adult in the instance that he or she is unable to express his or her desired form of treatment and medication.[34]

The behavioral health order form does not constitute consent for prolonged treatment after the initial seventy-two-hour holding period.[35] This limitation prevents emergency health care providers from keeping the adult past the initial seventy-two-hour holding period even if the behavioral health form indicates that the adult’s preferred treatment would be for a period longer than seventy-two hours.

Effect of Behavioral Health Orders

The newly signed bill requires that the health care provider make a good faith attempt to incorporate the adult’s desired treatment and medication preferences.[36] Mental health experts and providers are required to comply with an adult’s behavioral health order form if it is both immediately available and reasonably satisfies the requirements of Section 15-18.7-202.[37] Medical health care providers and emergency medical service personnel are required to give great deference to the behavioral health order form as they must comply with the order as long as the medication and treatment listed on the order form would not cause substantial harm to the adult.[38] During the adult’s involuntary hold, a health care provider cannot revoke or amend the behavioral health order form, including decisions regarding artificial nutrition or hydration.[39] If the health care provider finds that the behavioral health order form would cause substantial harm, then the provider must make a good faith effort to contact the adult’s agent and determine an alternative course of treatment.[40] Emergency medical service personnel and health care providers are encouraged to comply with a behavioral health order form because complying with the form will shield them from civil or criminal liability, so long as they follow already established medical standards, ethics, and laws.[41] If the health care facility transfers the adult to another facility, the transferring facility is required to provide a copy of the behavioral health order form.[42] The Colorado legislature has done an excellent job ensuring that the adult’s behavioral health order from will be respected by health care providers.

Limits of Behavioral Health Order Forms

Behavioral health order forms are limited in scope. The health order form cannot compel a health care provider or health care facility to administer medication or treatment that is prohibited by either state or federal law.[43] A behavioral health order form cannot exempt an adult from being placed in an emergency involuntary seventy-two-hour hold.[44] As previously stated, the health order form is limited to only the preferred treatment and medication during the seventy-two-hour hold and is not binding to what happens before or after the holding period.[45]

Conclusion    

The passage of HB-19-1044 is a victory for 148,000 Coloradans that experience a serious mental illness. Behavioral health order forms will enhance the autonomy of individuals, improve the therapeutic alliance between doctor and patient, and help prevent crises or dangerous interventions such as seclusion or restraint.[46]

[1] Office of Research and Public Affairs at the Treatment Advocacy Center, Prevalence of Serious Mental Illness Among Adults, By State (2017), https://www.treatmentadvocacycenter.org/storage/documents/smi-prevalence-chart.pdf.

[2] Id.

[3] DJ Jaffe, What is “Serious Mental Illness” and What is Not?, Mental Illness Policy Org., https://mentalillnesspolicy.org/serious-mental-illness-not/.

[4] Id.

[5] Caitlin Del Collo, Emergency Mental Health Holds, in Colo. Legislative Council Staff, Issue Brief No. 17–38 (2017).

[6] Id.

[7] Katie Wilcox & Chris Vanderveen, Colorado Mental Health Holds, by the Numbers, 9News (Apr. 30, 2018, 12:31 PM), https://www.9news.com/article/news/local/investigations/colorado-mental-health-holds-by-the-numbers/73-546234812.

[8] Del Collo, supra note 5.

[9] Phil Hickey, Involuntary Mental Health Commitments, Behaviorism and Mental Health, (Mar. 20, 2014), http://behaviorismandmentalhealth.com/2014/03/20/involuntary-mental-health-commitments/.

[10] Mental Health America Board of Directors, Position Statement 22: Involuntary Mental Health Treatment, Mental Health America, (Mar. 7, 2015), http://www.mentalhealthamerica.net/positions/involuntary-treatment.

[11] Id.

[12] Del Collo, supra note 5.

[13] Board of Directors, supra note 10.

[14] Heather Zelle, Kathleen Kemp, Richard J. Bonnie, Advance Directives in Mental Health Care: Evidence, Challenges and Promise, 14 World Psychiatry 278–80 (2015).

[15] Id.

[16] Mental Health Colorado, Policy Goals, https://www.mentalhealthcolorado.org/wp-content/uploads/2019/01/Policy-agenda.pdf.

[17] Advance Behavior Health Orders Treatment, H.B 1044, 72nd Gen. Assemb., Reg. Sess. (Colo. 2019).

[18] Id.

[19] Id.

[20] Del Collo, supra note 5.

[21] Colo. Rev. Stat. § 27-65-105 (2018).

[22] Id.

[23] Id.

[24] People v. Medina, 705 P.2d 961, 974 (Colo. 1985).

[25] See Colo. Code Regs. §§102.22, 102.17, 102.10.

[26] Board of Directors, supra note 10; Hickey, supra note 9.

[27] Advance Behavior Health Orders Treatment, H.B 1044, 72nd Gen. Assemb., Reg. Sess. (Colo. 2019).

[28] Id.

[29] Id.

[30] Id. at 15-18.7-201.

[31] Id.

[32] Id. at 15-18.7-203.

[33] Id. at 15-18.7-201.

[34] Id.

[35] Id. at 15-18.7-202.

[36] Id. at 15-18.7-205.

[37] Id.

[38] Id.

[39] Id. at 15-18.7-204 (Artificial nutrition and hydration is considered both a mental and physical remedy and therefore can be under a previously executed advance medical directive. These are similar to behavioral health orders but are in regard to physical health).

[40] Id. at 15-18.7-205 (the bill does not note what the process would be if the adult does not have an agent).

[41] Id.

[42] Id.

[43] Id.

[44] Id.

[45] Id. at 15-18.7-202.

[46] Zelle et al., supra note 14.