C.R.S. § 27-65-108.5: Court-ordered certification for short-term treatment for incompetent defendants in a criminal matter - contents of petition - procedure to contest petition - commitment to behavioral health administration - definition.

(1) Upon petition of a county attorney, an appointed legal guardian, the district attorney, an intervening professional acting within the scope of their authority, a professional person, a representative of the BHA, or a representative of CDHS, a court shall certify a person for short-term treatment for not more than three months under the following conditions:

(a) The person is a respondent in a criminal matter in which the person has been found incompetent to proceed;

(b) The court hearing the criminal matter referred the matter for filing of a petition pursuant to section 16-8.5-117;

(c) The person has been advised of the availability of, but has not accepted, voluntary treatment, or, if reasonable grounds exist to believe that the person will not remain in a voluntary treatment program, the person's acceptance of voluntary treatment does not preclude certification;

(d) The person meets the criteria for certification for short-term treatment pursuant to section 27-65-108.3 (1); and

(e) The person, the person's legal guardian, and the person's lay person, if applicable, have been advised of the person's right to an attorney and to contest the certification for short-term treatment.

(2) The petition filed pursuant to subsection (1) of this section must:

(a) State sufficient facts to establish reasonable grounds that the respondent meets the criteria for certification for short-term treatment pursuant to section 27-65-108.3 (1);

(b) Be accompanied by a report of the competency evaluator or professional person who has evaluated the respondent within ninety-one days before submitting the petition, unless the respondent whose certification is sought has refused to submit to an evaluation or the respondent cannot be evaluated due to the respondent's condition;

(c) Be filed within fourteen days after the initiating party received the court order from the criminal court initiating the process; and

(d) Provide recommendations if any certification should occur on an inpatient or outpatient basis.

(2.1) The petition filed pursuant to subsection (1) of this section may contain the respondent's history of emergency mental health holds invoked pursuant to section 27-65-106, certifications for short-term treatment or long-term care and treatment, findings of incompetency to proceed pursuant to article 8 or 8.5 of title 16, and inpatient psychiatric hospitalizations, and a statement as to whether the petitioner believes the respondent has a persistent mental health disorder.

(2.5) (a) An emergency mental health hold ordered pursuant to section 27-65-106 is not a prerequisite to initiate a certification for short-term treatment pursuant to this section.

(b) A respondent is not required to be under the care of an appropriate provider who is willing to hold a certification for short-term treatment in order to initiate a certification pursuant to this section.

(3) Within twenty-four hours after certification, copies of the certification must be personally delivered to the respondent, the BHA or CDHS, and any known provider or facility that has custody of the respondent. The department shall retain a copy as part of the respondent's record. If the criminal case is pending, or not yet dismissed, the petitioning party shall give notice of the filing of the petition to the criminal court, and the court shall provide the notice to the prosecuting and defense attorneys in the criminal case and any attorney appointed pursuant to section 27-65-113.5. The court shall ask the respondent to designate one other person whom the respondent wants to be informed regarding the petition. If the respondent is incapable of making such a designation at the time the petition is delivered, the court may ask the respondent to designate such person as soon as the respondent is capable.

(4) Whenever a petition is filed pursuant to this section, the court shall immediately appoint an attorney to represent the respondent. The court shall provide the respondent with a written notice that the respondent has a right to a hearing on the petition and may make a written request for a jury trial. The respondent has the right to an attorney for all proceedings conducted pursuant to this section, including any appeals. The attorney representing the respondent must be provided with a copy of the petition and any supporting materials immediately upon the attorney's appointment. The respondent may only waive counsel when the respondent makes a knowing and voluntary waiver in front of the court.

(5) Upon the filing of the petition pursuant to this section and affording the respondent a chance to contest the petition, the court may grant or deny certification based on the facts established in the petition, subject to the court's further review or a jury trial.

(6) Within fourteen days after receipt of the petition filed pursuant to this section, the respondent, or the respondent's attorney, may request a jury trial by filing a written motion with the court.

(7) The respondent may knowingly and voluntarily consent in writing to the petition.

(7.1) (a) If the respondent is certified for short-term treatment, unless an appropriate provider has already been identified and is willing to hold the certification, the court shall order CDHS to provide care coordination and make diligent efforts to find a provider for the respondent.

(b) The department may receive and possess all information relevant to the proceedings pursuant to this section, including competency evaluations, any medical and mental health records for which a waiver or privilege has been found in proceedings pursuant to this section or pursuant to article 8.5 of title 16, and relevant criminal justice records, including any criminal history of the respondent.

(c) The court may order:

(I) The petitioner and any district attorney responsible for prosecuting a criminal case that led to proceedings pursuant to this section or section 16-8.5-117 to send relevant records to CDHS within seven days after the court's order; and

(II) Any current or former attorney who represented the respondent in any proceeding to send materials to CDHS, with the respondent's consent, to assist in care coordination.

(d) CDHS may, as necessary, share information with potentially appropriate care providers and the parties, and shall keep the court apprised in writing of efforts to find an appropriate provider for the respondent.

(7.5) If the court certifies the respondent for short-term treatment and the court finds that inpatient treatment is necessary pursuant to section 27-65-118 (1)(a) but an inpatient care provider has not been located that will accept the respondent after all reasonable efforts have been exhausted, the court shall notify CDHS and certify the respondent for outpatient treatment pursuant to section 27-65-109.5.

(8) The respondent or the respondent's attorney may, at any time, file a written request for the court to review short-term certification or request that inpatient certification be changed to outpatient treatment. If the review is requested, the court shall hear the matter within fourteen days after the request, and the court shall give notice to the respondent, the respondent's attorney, the department, and the community or facility provider who is or will provide treatment. The hearing must be held in accordance with section 27-65-113.1. 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.

(9) In determining whether to certify the respondent or ruling upon any objection to the certification, the court shall consider the respondent's history of emergency mental health holds invoked pursuant to section 27-65-106, certifications for short-term treatment or long-term care and treatment, findings of incompetency to proceed pursuant to article 8 or 8.5 of title 16, and inpatient psychiatric hospitalizations, and whether the respondent qualifies as having a persistent mental health disorder.

(10) and (11) Repealed.

(12) For the purposes of this section only, "respondent" means the defendant in the referring criminal matter.