A contentious policy debate rages in Colorado over when is the right time to hold someone against his will when no crime has been committed.
Colorado is one of just a handful of states where people must pose an “imminent danger” of harm to themselves or others before they can be committed involuntarily for evaluation.
Supporters say the language is an important barrier to civil liberties abuses. Critics call “imminent danger” too restrictive and difficult for health professionals to use effectively.
Efforts to legislate a new balance between personal liberty and public safety in civil commitment procedures failed in the Colorado General Assembly session that just ended. Proposed language would have allowed a person to be held against his will if there were “recent threats” or evidence of “substantial risk of physical harm to himself, or to others.”
Since the Aurora movie theater shooting in July 2012 took 12 lives, caused a miscarriage and injured 70 others, the governor and lawmakers have pushed to prevent the worst consequences of untreated severe mental illnesses.
Mental health policy analysts regard “imminent danger” as more restrictive — harder to use — than the standards of 43 states.
“States have learned through tragedy of the consequences of keeping an ‘imminent’ reference in their statutes. It requires health care providers to predict the future,” said Dr. Patrick Fox, forensic psychiatrist and deputy director of clinical services for the state Office of Behavioral Health.
Yet, even under Colorado’s current standards, 31,317 mental health emergency holds or certifications of commitments took place in the state in fiscal year 2013. That’s more than enough, some argue.
“You know it’s not a bad thing to be among the minority of states that have higher standards when civil liberties are at stake,” said Mark Ivandick, an attorney and advocate for mental health consumers.
Commitment process
Emergency commitment procedures can be initiated by police officers, doctors, psychiatric nurses, licensed social workers and therapists. They often are decided in hospital emergency rooms.
The law allows a person to be held for up to 72 hours, although many are released more quickly, often after 12 hours, with little or no treatment.
The law requires that a psychiatrist or psychologist evaluate and treat the person to determine whether extended treatment is needed. Court certification is required for short-term holds of three months and long-term holds of six months or longer. There are no limits on how many times a person can be recertified.
History professor and gun-rights supporter Clayton Cramer argues that Colorado’s mental health laws failed its citizens in the Aurora shooting. He has been researching the topic for the conservative Independence Institute.
The theater gunman, James Holmes, had given clear signs of potentially violent mental illness to his psychiatrist — enough for her to alert police, Cramer said. Yet under state standards of “imminent danger” for involuntary commitment, he said, police would have to catch him loading his magazines at the theater before intervening.
“We have an American tragedy under this false banner of scrupulous concerns for individual rights,” Cramer said.
Most individuals with serious mental illnesses are not dangerous, Fox and other mental health experts say. Most violence is committed by individuals who are not mentally ill. Yet a small number of individuals with serious and persistent mental illnesses commit 5 percent to 10 percent of all homicides.
These crimes often are committed by people who are having their first psychotic break or are not being treated for other reasons. Many also are abusing alcohol and drugs, Fox said.
State Sen. Ken Lundberg, R-Berthoud, said civil commitment was one of the most important issues before lawmakers this year, and removing “imminent” danger from the statute would lower the threshold and diminish civil rights.
“This is a system that is abused,” Lundberg said in a hearing of the Senate Judiciary Committee in the last days of the session. “It’s a wide net of people who can initiate (involuntary holds), and I see no controls. … Removing the word ‘imminent’ is not improving the current law; it’s making it worse.”
The hearing ended with the bill’s co-sponsor, Sen. Mike Johnston, D-Denver, withdrawing the legislation because, he said, he didn’t think he’d have the votes on the Senate floor. But he defended the bill.
Real hesitation
Johnston spent several years running a mental health center for adolescents and young adults with the most serious mental health needs, from active psychosis to extreme depression, he said, and there was real hesitation on the part of medical providers to put someone on involuntary hold unless there was dramatic evidence of serious risk.
“I haven’t seen any sort of overreach,” Johnston said. “I’ve seen real judicious deference to every other option before we had a 72-hour hold.”
No agreement could be reached about whether the bill sponsors’ stated intention of “clarifying” the process for mental health professionals would result in more or fewer involuntary holds of people who have not committed crimes.
“In my opinion, it will be easier to effect an emergency hold by lowering the threshold from ‘imminent’ danger where the danger must manifest itself in the immediate future to a substantial risk of harm manifested by recent dangerous behavior,” said Ivandick, managing attorney for the Denver office of The Legal Center for People with Disabilities and Older People. He had planned his comments for a Senate hearing before it was hurriedly rescheduled and ended with withdrawal of the legislation.
Moe Keller, vice president of public policy and strategic health initiatives for Mental Health American of Colorado, said it isn’t clear how dropping “imminent” would affect numbers of commitments — the intent was to make them more appropriate, not more numerous.
“And what does it matter what the definition is when a person is held a short time and released without support systems and no place to go for longer-term treatment,” Keller said.
Mental health consumers pushed back hard against legislators and mental health providers who favored changing the standard in civil commitment.
“The ‘imminent’ standard is so critical,” said Aubrey Ellen Shomo, a 29-year-old computer programmer who describes herself as a psychiatric survivor. “The ‘imminent’ standard is as close to reasonable as we can get. This (attempted legislation) is the tyranny of good intentions. … People with mental illness find themselves on the lowest social rungs, and people on the lowest social rungs are more likely to be arrested. … We’re the untouchables. There’s no political benefit to helping us.”
Shomo said she was medicated against her will as a child, through adolescence. “They hoped it would lead to peace in the home. But I question the efficacy of the drugs. They dull your mind. … It took the joy out of my childhood.”
Keller said mental health patients are not of one mind on the subject.
“Some people will tell you (commitment) is the best thing that’s ever happened to them. They didn’t know how much they needed help,” she said. “Others will tell you it’s the most traumatic thing that ever happened to them. It exacerbated their illness, and they did not seek treatment for years because of it.”
Most states had shifted away from the “imminent danger” standard by 2005, according to a Marquette Law Review analysis, as legislators came to understand that some individuals with severe mental illnesses are chronically ill and their behavior will periodically deteriorate, resulting in a revolving door of commitments, incarcerations and homelessness.
Task force on issue
The law is turning away from a requirement of imminent dangerousness to “a more socially responsible statute” that provides for commitment and more assertive treatment models before a person completely deteriorates to a point where he or she is an imminent danger to self or others, the Marquette analysis said.
A Civil Commitment Statute Review Task Force, which includes Fox, has been studying the issue for legislators, and it is set to continue through November.
Researchers at the School of Social Welfare at the University of California at Berkeley reported in 2011 that there is a strong association with lower homicide rates in states with broader commitment criteria and increased access to inpatient psychiatric care. After controlling for gun-control laws, poverty levels and other demographic factors, researcher Steven P. Segal concluded that better-performing mental health systems contributed to lower homicide rates.
“Earlier and more consistent treatment with antipsychotic medications gives schizophrenics a better chance of leading stable lives,” said Cramer, who wrote a book about his older brother Ron, who has schizophrenia.
Electa Draper: 303-954-1276, edraper@denverpost.com or twitter.com/electadraper
Facts about involuntary holds
• In fiscal 2013, 31,317 mental-health emergency holds or certifications of commitments took place in the state, up from 25,862 in 2012, according to the Colorado Department of Human Services.
• In 2011, only 3.5 percent of holds were initiated because a person was considered a danger to others, mental health providers reported to Human Services. In 58 percent of cases, detained individuals were considered a danger to themselves. Just more than 16 percent were of those “gravely disabled” and unable to care for themselves.
• Of those placed on holds in 2011, 3,942 voluntarily committed themselves during a crisis, sometimes with encouragement from family or under threat of involuntary commitment.
• Ages of those involuntarily held ranged from 5 years up. Two-thirds were identified as Caucasian. And 50.5 percent were women; 49.5 percent male.
