16-8.5-112. Venue for collateral hearings.

Statute text

(1) If a defendant committed to the custody of the department for evaluation or for restoration treatment meets the constitutional requirements for the administration of involuntary medication, the defendant's treating physician may petition the court for an order requiring that the defendant accept the treatment or, alternatively, that the medication be forcibly administered to the defendant. The department shall, prior to the hearing on the petition, deliver a copy of the petition to the court that committed the defendant to the custody of the department, the prosecuting attorney, and the defendant's legal representation in the criminal case, if such representation exists, and to the defendant directly if the defendant does not have legal representation. A physician shall assess and document the defendant's mental status prior to the administration of medication.

(2) A petition for involuntary treatment must be heard in the court of the jurisdiction where the defendant is located. The department shall promptly deliver a copy of the order granting or denying the petition to the court that committed the defendant to the custody of the department, the prosecuting attorney, and the defendant's legal representation in the criminal case, if such representation exists, and to the defendant directly if the defendant does not have legal representation.

(3) If the committing court elects to transfer venue for medication hearings to the court of the jurisdiction where the defendant is located, the committing county shall reimburse the county where the proceeding is heard for the reasonable costs incurred in conducting the proceeding. Alternatively, the district attorney for the committing county, or in any county or any city and county having a population exceeding fifty thousand people, the county attorney for the committing county, may prosecute the proceeding as the proponent of the physician's petition.

(4) If a defendant committed to the custody of the department for evaluation or for restoration treatment is ordered by a court to accept treatment as set forth in subsection (1) of this section and is subsequently returned to jail for pending court proceedings, the county jail may require the defendant to continue to receive the same court-ordered treatment that was administered by the department before the defendant was discharged from inpatient care, or, alternatively, appropriate medical personnel provided by the jail may forcibly administer such court-ordered medication to the defendant.

History

Source: L. 2008: Entire article added, p. 1846, 2, effective July 1. L. 2009: (1) and (2) amended and (4) added, (HB 09-1253), ch. 128, p. 550, 2, effective August 5. L. 2024: (1), (2), and (3) amended, (HB 24-1034), ch. 372, p. 2514, 10, effective June 4.

Annotations

 

ANNOTATION

Annotations

There is a statutory right to effective assistance of counsel in expedited proceedings governed by this section. People in Interest of Uwayezuk, 2023 COA 69, 537 P.3d 377.

The ineffective assistance of counsel analysis in People in Interest of A.R., 2020 CO 10, 456 P.3d 1266, applies to expedited proceedings conducted under this section. When a defendant sufficiently pleads a prima facie claim of ineffective assistance of counsel, an appellate court does not need to remand for factual findings in two circumstances: (1) when the record is sufficiently developed to decide the question of counsel's ineffective assistance, such as when the facts are not disputed so the matter may be decided as a matter of law; and (2) the court can presume prejudice if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing. People in Interest of Uwayezuk, 2023 COA 69, 537 P.3d 377.

Based on application of standards related to the involuntary administration of medication for restoration of competency established by the supreme court in Sell v. United States, 539 U.S. 166 (2003), medication may be administered to defendant to restore competency for trial. People in Interest of Hardesty, 2014 COA 138, 410 P.3d 553 (adopting a variation of the Sell test consisting of eight factors); People in Interest of R.F., 2019 COA 110, 451 P.3d 1238 (adopting a four-part Sell test and disagreeing with the Hardesty court's framing of the Sell test as having eight parts).

In accordance with People v. Medina, 705 P.2d 961 (Colo. 1985), involuntary administration of antipsychotic medication on an emergency basis due to the welfare or safety of the defendant or those around the defendant should not be ordered unless: (1) the patient is incompetent to effectively participate in the treatment decision; (2) such treatment is necessary to prevent long-term deterioration in the patient's mental condition; (3) a less intrusive treatment is not available; and (4) the patient's need for such treatment overrides any legitimate interest of the patient in refusing treatment. People in Interest of Uwayezuk, 2023 COA 69, 537 P.3d 377.

Clear and convincing evidence that the defendant's personal preference to refuse medication because of potential side effects had to yield to the state's legitimate interest in protecting his health, as well as protecting the staff and others in custody at the jail where the defendant's mental health disorder was "severe", and his prognosis without treatment was "poor" and unlikely to improve without the involuntary administration of medication. The defendant's doctor testified that studies have shown that the quicker medication could be administered, the more effective it was, especially during a patient's "first break", and the defendant was on a two-person handcuff alert given his erratic behavior. People in Interest of Uwayezuk, 2023 COA 69, 537 P.3d 377.

The use of "may" in subsection (4) simply authorizes the sheriff to permit jail personnel or other qualified medical professionals to involuntarily medicate a defendant subject to an involuntary medication order once the defendant is returned to the county jail. In other words, "may" in this context is a grant of authority to the county jail to continue to enforce an involuntary medication order, but not a grant of discretion to unilaterally decline to enforce such an order. People in Interest of Joergensen, 2022 COA 126, 524 P.3d 293.

The use of "may" in subsection (4) does not require or even permit a mental health court to consider whether a particular county jail is able or willing to effectuate a Sell order when deciding whether the Sell factors are satisfied, including whether a defendant is likely to maintain their competency until being brought to trial. People in Interest of Joergensen, 2022 COA 126, 524 P.3d 293.

A Sell order may subject a defendant to involuntary medication to maintain their competency until such time as the trial is completed. It does not require proof that a prescribed medication would render a defendant competent to stand trial and that the defendant's competency would be maintained until the trial actually occurs. People in Interest of Joergensen, 2022 COA 126, 524 P.3d 293.