For the second time in three weeks, Montezuma County Judge JenniLynn Lawrence on Wednesday issued the Colorado Mental Health Institute at Pueblo a show cause order, forcing the institute to appear in court to explain its delays in admitting defendants for therapy.
The local orders are part of a statewide 12-year trend.
CMHIP has received contempt violations since 2007, according to a U.S. District Court order, and on March 1, the Colorado Department of Human Services and Disability Law Colorado are scheduled for mediation after several years of lawsuits.
In June 2017, CDHS admitted that the department could not comply with the 28-day requirement to admit patients, as established in a 2016 settlement with DLC.
U.S. Magistrate Judge Nina Wang in December 2018 appointed two experts as “special masters” to review a CDHS comprehensive plan to come into compliance with the 2016 settlement. The masters proposed seven recommendations.
Wednesday’s show cause order relates to Montezuma County Detention Center inmate and Cortez resident Lori Hayes, 57. After receiving several evaluation letters, the court on Jan. 16 ordered restoration therapy for Hayes, starting the 28-day clock for CMHIP to admit the inmate.
But Lawrence on Wednesday said the court received a letter from CMHIP on Feb. 6, asking for an extension until April 29. She said that is an “inordinately long time” and ordered CMHIP to explain why it could not admit Hayes earlier.
The April 29 date would mean a 102-day wait for Hayes, or a 264 percent increase from the designated 28 days to admit a defendant.
Hayes faces five felonies. She allegedly stole two cars within five days in October, and in November threw a wet toilet paper roll at a detention sergeant while in custody at Montezuma County Detention Center.
Before issuing Wednesday’s order, Lawrence on Jan. 23 sent CMHIP a show cause order regarding the delay in admitting McKale Dick. Since Dick was booked into jail in April, he has allegedly assaulted detention officers on two occasions and jumped off a railing in the jail, breaking both ankles.
Dick’s show cause hearing was scheduled for Feb. 6 but was vacated. According to the Feb. 15 jail report, Dick is still in custody in Montezuma County, 114 days after he was found incompetent to stand trial on Oct. 23.
“We think that’s a major problem,” Alison Butler, director of legal services for Disability Law Colorado, said.
She added that Colorado judges have issued show cause orders for more than a decade.
According to a Dec. 28 U.S. District Court order, a series of CMHIP show cause orders in 2007 resulted in the appointment of a special counsel and a settlement agreement requiring CMHIP to admit detainees within 28 days of a court order.
Butler said that 28-day clock fell apart, and in 2011, DLC sued CDHS. The U.S. District Court order states that lawsuit resulted in an agreement that required CDHS to admit pretrial defendants to CMHIP no later than 28 days after the defendant was ready for admission.
Then, in 2015, DLC reopened the lawsuit, arguing that CDHS was not complying and had falsified documents to show it was in compliance with the 28-day rule. The plaintiffs reached a settlement in 2016, again reaffirming the 28-day clock to admit pretrial defendants to CMHIP, which is the only forensic mental hospital in Colorado that conducts court-ordered evaluations and restorative therapy.
In June 2017, CDHS released a press release admitting that the department was unable to comply with the 28-day clock it agreed to in 2016, citing the “increasing number of referrals for competency evaluations and restoration services” at CMHIP.
The CDHS press release blames the delays on an “unanticipated spike” in court-ordered referrals, not staffing.
When a pretrial defendant in Colorado is suspected of having mental health issues, the court can order a competency evaluation to determine whether the defendant is able to stand trial.
A defendant who is found incompetent typically is sent back to the county jail. The defendant then is supposed to go back to the mental institute within 28 days to receive therapy to restore competency necessary to participate in their defense.
According to CDHS data, the number of restoration orders referred to CMHIP has increased steadily since 2014. Judges issued about 300 restoration orders annually from fiscal years 2012 to 2014, but that figure increased to about 550 by fiscal year 2017, an 83 percent increase in three years.
From fiscal years 2000 to 2018, CDHS saw 592 percent increase in the number of court-ordered evaluations and a 1,251 percent increase in orders for competency restoration, according to Elizabeth Owens, director of communications for the Colorado Office of Behavioral Health.
She wrote in an email to The Journal that CDHS has not meet demand for beds.
According to the Jan. 28 report from special masters Niel Gowensmith and Daniel Murrie, CDHS planned to comply with the 2016 agreement as quickly as possible.
They state long-term compliance “can only occur by improving the broader system of mental health care” and not through “hasty efforts” for short-term compliance. They point out gaps in cohesive planning and in attention to community-based resources.
The special masters acknowledge Colorado has too few psychiatric hospital beds but emphasize that additional beds “is not the primary solution to the competency crisis.” Bed building is among the slowest and most expensive strategies, they wrote.
The special masters criticize the CDHS plan to place a freeze on civil beds to free up beds for criminal patients. They affirm, however, the CDHS plan to pilot outpatient restoration services outside the jail setting.
Because defendants’ mental health issues vary, the special masters urge CHDS to prioritize a triage approach instead of a traditional wait list. They state the modern approach to mental health is more like an emergency room, where severe patients are seen first, instead of a sequentially numbered system, like the Department of Motor Vehicles waiting line.
As the mediation date between DLC and CDHS closes in, Butler said DLC is drafting three bills for the legislative session. Sen. Pete Lee, D-Colorado Springs, will sponsor the bills.
The first of the three bills would create a stakeholder group to form a strategic plan to eliminate delays and focus on community resources, Butler said. A second bill would focus on prevention, and a third would reintroduce several provisions in a bill that failed last year.
Butler said SB18-252 had good ideas, but contained a provision that DLC and experts opposed. A letter from DLC trial attorneys dated Jan. 8 to Colorado Attorney General Phil Weiser states strong opposition to a provision that would have legalized five-month jail terms for defendants waiting for restoration treatment.
Butler said jailing incompetent defendants with the general population of a jail does not yield positive results. They end up spitting on cops, hurting other inmates or becoming victims themselves, she said.
“We’re just hurting everybody,” Butler said. “We’re hurting homeless people, we’re putting our sheriffs at risk because they are not trained to deal with people with mental health issues, yet we are warehousing them with them.”
sdolan@the-journal.com
U.S. District Court order (PDF)
