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Attorneys: Mentally ill accused of crimes waiting too long for competency evaluations

Mental competency evaluations are outpacing capacity, clogging the system and forcing people to languish longer in jail, a legal letter says

By Jennifer Brown
The Denver Post

DENVER — People with mental illness who are accused of crimes in Colorado are waiting up to four times as long as legally allowed for evaluations and treatment because the system is so overwhelmed, their attorneys say.

Colorado is bound by a 2012 lawsuit settlement to conduct mental competency evaluations or begin treatment for people found incompetent to stand trial within 28 days of a judge’s order. But for the second time in six months, the state has revealed it is failing to meet the requirements of the federal settlement.

Court orders for mental competency evaluations are outpacing capacity at an “unabating rate,” clogging the system and forcing people to languish longer in lock-up, according to a legal letter written by the Colorado Department of Human Services.

In June 2016, the system received 146 competency evaluation orders and 54 orders for “restoration,” which is mental health treatment to restore people found incompetent so that they can then face charges. A year later, in June, the system received 215 competency orders and 93 restoration orders — increases of 47 percent and 72 percent, respectively. The numbers have remained high in the months since.

While Colorado now has plans to spend upward of $20 million to address the backlog, partly by adding dozens more mental health beds in jail and at the state mental hospital in Pueblo, others say the state failed to act even though the increase was foreseeable.

“It has been a decade of false promises by the Department of Human Services,” said attorney Iris Eytan, who represents accused criminals with mental illness in the lawsuit brought by Disability Law Colorado. “These human beings are locked up, sometimes in solitary confinement, because the jails cannot treat them or forcibly medicate them, and they are far away from their communities, jobs, services and families.

“People are suffering greatly.”

Federal law requires states to provide mental health treatment to people in jail who are mentally ill and cannot understand the criminal proceedings they face. Their cases cannot proceed until they are mentally “restored,” if possible. Many are “deteriorating in jails that are not equipped to care for them” for up to four or five months, Eytan said.

“This never should have happened. It’s the worst it’s been in 10 years,” she said, vowing to return to court to enforce the agreement and “help these victims of a wayward system.”

State officials would not say how long people are waiting for evaluations or restoration, only that wait times fluctuate depending on bed availability and that some have waited longer than the settlement requires.

Disability Law Colorado on Friday accused the state of breaching the terms of the settlement. State officials sent notice that they were invoking “special circumstances” in the settlement because of “circumstances beyond the control of the department.”

The department “cannot single-handedly curb the inflow of court orders,” the notice said. It described a plan — based on creating more beds and a change in state law — that “will ultimately allow it to keep pace” with court orders.

Among the solutions is a plan to allow the state Office of Behavioral Health to partner with private hospitals for mental restoration for people found incompetent to face charges.

When beds are full, the state can ask a hospital to provide a bed and mental health treatment. Since hospitals don’t have restoration programs, the state will send a facilitator to the hospital to educate the accused person about court, trials, witnesses and evidence, and help determine whether the person understands the proceedings, said Patrick Fox, state human services’ chief medical officer.

State officials believe the arrangement is unique nationally, Fox said. It will begin in July, pending legislative approval.

Gov. John Hickenlooper’s budget for 2018-19 includes $3.4 million for the state’s partnership with private hospitals, enough for three new state employees and 10 hospital beds.

It also includes $7.4 million to create an additional 62 competency evaluation and restoration beds in jails and $11.8 million to expand beds at the state mental hospital at Fort Logan. The expansion will bring the total jail-based beds — so far all in Arapahoe County — to 114.

In Pueblo, at the state mental hospital, there are 72 beds designated for competency evaluation. Yet the hospital recently held 177 people for evaluation or restoration, housing them in other areas of the hospital. “It almost becomes a meaningless point,” Fox said.

In March, the Pueblo hospital will have 20 additional beds for competency and restoration when a new space for adolescents is expected to open.

Keeping up with the “new normal” in competency evaluations and restoration orders will require “collective input” from numerous policymakers and advocates, Fox said. He noted that while plans and budget requests are in the works, it will take at least until spring before Colorado can begin catching up with the slog of court orders.

“Systems or services can’t be brought up instantaneously,” he said.

The rise in competency orders has been attributed by experts to a greater awareness among judges about the impact of mental health on defendants, as well as laws that critics say criminalize mental illness. Defendants awaiting competency or needing restoration have been charged with anything from misdemeanor trespassing to capital murder.

When a person is found incompetent to stand trial and not subject to release from custody, the severity of the person’s mental health symptoms has not been considered by Colorado courts — meaning people are sent to the state hospital system whether their symptoms are mild or acute. That means beds are taken by those who might need only day-treatment at a community clinic, Fox said.

The human services department is working with lawmakers and the court system to draft legislation that would require courts to order restoration in the most appropriate setting, based on the accused person’s symptoms and criminal charge.

The state was required in 2016 to hire an independent consultant to track how quickly it completes mental competency evaluations. Documents filed in the case last year revealed a 2015 memo directing department staff to admit only one person per day at the Colorado Mental Health Institute in Pueblo. That order led to a backlog of an estimated 100 inmates, Disability Law said.

The department’s request for relief from the settlement requirements is not related to staffing issues at the Pueblo mental hospital, state officials said. The 449-bed hospital was placed on a “termination track” last summer by federal authorities critical of nursing staff levels but is now in compliance.

©2017 The Denver Post

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