72 hour holds and due process

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Latest post 06-12-2012 12:19 PM by ridenours. 21 replies.
  • 05-09-2012 10:03 PM

    72 hour holds and due process

    We want to file a federal lawsuit pursuant to Title 42 USC Sec. 1983,
    against Memorial Health System and certain individuals who work there for their treatment of my wife,
    (a 100 pound woman with a broken pelvis) on April 29th, 2012, when they placed her on a 72 hour hold
    under color of law with no authority to do so. This action caused her to be brutally assaulted in an
    untrained and uncaring manner. They did this with total disregard for respect, dignity and the Law.


    I had called an ambulance when we had what seemed to be a physical medical emergency, when I went to the hospital and saw that they
    were not treating my wife for her problems, and had instead decided to interrogate her on her mental capacity.

    I called another hospital named Penrose and made an appointment for my wife to go there and be treated.
    When we started to leave the hospital to go to Penrose, the hospital had security guards restrain us!
    I called 911 and asked for help and if they could at least send an escort to help me take my wife to a medical doctor.
    I was turned down by the 911 operator. I can only assume, this is because the city owns the hospital.

    The social worker at the hospital said she was going to write up the order to hold my wife, when my wife heard she was not actually
    under a "legal" hold, she decided to leave on her own against medical advice, and a security guard assaulted my wife.
    I grabbed the guard to get him off my 100 pound wife, and he shot me with a taser. My wife had run downstairs crying and
    four more security guards tackled my 100 pound wife who has a broken pelvis and they slammed her on the asphalt of the parking lot
    and brutally handled her back into the hospital where she was drugged against her objections and and told her she was going to the
    mental ward "the hard way"!
    I was charged with 2 misdemeanors and released from jail. My wife was transferred to Cedar Springs mental unit.
    The following morning I typed up a habeas corpus and took it to the mental ward and handed it to the CEO and explained how there was no
    legal hold on my wife and unless something was done right away to help us, they would all be sued personally.
    within 30 minutes they had an ambulance to take my wife to the hospital and they photographed all of her bruises for me.
    They then called me when she returned from the hospital so I could take her home!


    CRS 27-65-105, SEC(b), says that the social worker, must swear or affirm before a judge that my wife
    had a mental illness and that my wife was an imminent danger to herself or others.

    The social worker, did not swear or affirm her mental Illness emergency paperwork in front of a judge or any witness for that matter,
    and therefore her affidavit can hold no legal weight. Memorial Health Systems had no legal right to restrain my wife or myself, and
    therefore the attack upon my wife and myself had no basis in law and they had no authority to act in the manner in which they did.

    CRS 27-65-102, SEC (b): Says that "A person who, because of care provided by a family member or by an individual with a
    similar relationship to the person, is not in danger of serious physical harm or is not significantly endangered"

    I was present with my wife and have not been deemed incompetent to care for her and no one has questioned my capacity to care for her,
    therefore she was not an imminent threat to herself or anyone else.

    The Social worker, who was working the 5th floor on April 29th, was legally required to swear or affirm before a judge pursuant to CRS 27-65-105, SEC (b).
    The M1 Emergency Mental Illness application upon which, they relied, was executed illegally, and used as a color of law basis to hold my wife against
    her will, and to force the services of Memorial Health System upon my wife rather than allow us to seek a second opinion from another Doctor that would
    address our immediate physical concerns.
    They have caused my wife and I, undue stress, injury, trauma, and damages.

    Can  anyone help us?

    This appears to be happening all across th ecountry, Doctors put people on 72 hour holds but they skip the part where a judge is supposed to be involved!

    In colorado, a doctor is supposed to swear an affidavit in front of a judge, but they seem to always skip that part and everyone down the line after that treats the order as if it was a valid court order, when no court was involved!

     

  • 05-09-2012 10:12 PM In reply to

    • DPH
      Consumer
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    • Joined on 10-08-2001
    • TX
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    Re: 72 hour holds and due process

    FREDKEEFER:

    Can  anyone help us?

    Sure.  Contact a local attorney and tell them your story.

     

    "Never argue with stupid people, they will drag you down to their level and then beat you with experience."  -  Mark Twain

     

  • 05-09-2012 10:30 PM In reply to

    Re: 72 hour holds and due process

    Really? that's your answer?

    I have called over 30 attorneys and they all have said the same ***!

    "I don't know about 72 hour holds!

    Well I am not an attorney and I looked up the statutes online and can see that Due process is being violated!

    Does anyone here know an attorney in Colorado who would take the case?

     

  • 05-09-2012 10:34 PM In reply to

    Re: 72 hour holds and due process

    FREDKEEFER:
    I was present with my wife and have not been deemed incompetent to care for her and no one has questioned my capacity to care for her, therefore she was not an imminent threat to herself or anyone else.

    Your ability to provide care for your wife is a completely separate issue from whether or not she is a danger to herself or others.

    FREDKEEFER:
    Doctors put people on 72 hour holds but they skip the part where a judge is supposed to be involved!

    Actually you have it partially right.  Many states have a law that allows law enforcement and/or medical personnel to place a 72 hour hold on a person if they reasonably believe they are a threat to themself or others.  At the 72 hour point if the hospital believes the patient needs ongoing mental health treatment and the person will not agree to a voluntary admission THEN the staff must go before a judge and swear that the person needs to be committed involuntarily.  There is no requirement that this happen prior to the 72 hours.  In cases where a person is immediately a clear threat medical personnel often go immediately to court to get the hold.  However, they have a full 72 hours before they are required to under the law you quoted.  In Florida it is called a Baker Act.  Colorado's is similar to Floridas and the entire statute actually says this:

    27-65-105. [Formerly 27-10-105] Emergency procedure. (1) Emergency procedure may be invoked under either one of the following two conditions:

    (a) (I) When any person appears to have a mental illness and, as a result of such mental illness, appears to be an imminent danger to others or to himself or herself or appears to be gravely disabled, then a person specified in subparagraph (II) of this paragraph (a), each of whom is referred to in this section as the "intervening professional", upon probable cause and with such assistance as may be required, may take the person into custody, or cause the person to be taken into custody, and placed in a facility designated or approved by the executive director for a seventy-two-hour treatment and evaluation.

    (II) The following persons may effect a seventy-two-hour hold as provided in subparagraph (I) of this paragraph (a):

    (A) A certified peace officer;

    (B) A professional person;

    (C) A registered professional nurse as defined in section 12-38-103 (11), C.R.S., who by reason of postgraduate education and additional nursing preparation has gained knowledge, judgment, and skill in psychiatric or mental health nursing;

    (D) A licensed marriage and family therapist or licensed professional counselor, licensed under the provisions of part 5 or 6 of article 43 of title 12, C.R.S., or an addiction counselor licensed pursuant to section 12-43-804 (3), C.R.S., who by reason of postgraduate education and additional preparation has gained knowledge, judgment, and skill in psychiatric or clinical mental health therapy, forensic psychotherapy, or the evaluation of mental disorders; or

    (E) A licensed clinical social worker licensed under the provisions of part 4 of article 43 of title 12, C.R.S.

    I read then entire statute and NO WHERE does it say that anyone who is authorized to place an M1 hold must go before a judge first.  In fact in CO, the 72 hours specifically does not include Saturday, Sunday, or holidays by the statute you listed.  So in theory someone detained on Friday could be held five days due to a weekend and a holiday weekend at that.  At the end of the hold the medical professional can petition for short term treatment for up to 3 months.  At that point the court must sign off on the petition.  

    FREDKEEFER:
    Can  anyone help us?

    Feel free to consult a few med/mal attorneys.  However, medical and law enforcement professionals performing their duties under the statute are generally immune from suit for doing so.  If no firm will take the case then you have your answer.

     

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • 05-09-2012 10:35 PM In reply to

    Re: 72 hour holds and due process

    FREDKEEFER:
    I have called over 30 attorneys and they all have said the same ***!

    Then you don't have a case.  

    FREDKEEFER:
    Well I am not an attorney and I looked up the statutes online and can see that Due process is being violated!

    No it isn't.  Read the ENTIRE statute.  I addressed this in my first post to you.  I get it that you don't agree with their treatment but that is not enough to make it a violation of due process.  

    FREDKEEFER:
    Does anyone here know an attorney in Colorado who would take the case?

    You have to call firms and no one can predict whether any firm will take any case.  If 30 attorneys turned you down then there was no violation of the statute.

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • 05-09-2012 10:41 PM In reply to

    Re: 72 hour holds and due process

    Well you either are a liar or an idiot,

    If you read the entire statute you would have seen 27-65-105 (b) which says and I will quote.

    (b) Upon an affidavit sworn to or affirmed before a judge that relates sufficient facts to establish that a person appears to have a mental illness and, as a result of the mental illness, appears to be an imminent danger to others or to himself or herself or appears to be gravely disabled, the court may order the person described in the affidavit to be taken into custody and placed in a facility designated or approved by the executive director for a seventy-two-hour treatment and evaluation.

  • 05-09-2012 10:53 PM In reply to

    Re: 72 hour holds and due process

    And this never happened!  And apparently it rarely happens that these "psychologist"  swear their afidavit in front of a judge!

     

  • 05-09-2012 11:20 PM In reply to

    • DPH
      Consumer
    • Top 10 Contributor
    • Joined on 10-08-2001
    • TX
    • Posts 7,177

    Re: 72 hour holds and due process

    FREDKEEFER:
    Well you either are a liar or an idiot

    Geez dude, lighten up.  Had you mentioned in your original post that you had already contacted 30 law firms it would have been obvious to almost anybody that you likely don't have a case.  Keep contacting lawyers and maybe you'll find one that will take the case.  Bring your checkbook to write a hefty retainer check.

     

    "Never argue with stupid people, they will drag you down to their level and then beat you with experience."  -  Mark Twain

     

  • 05-10-2012 12:12 AM In reply to

    Re: 72 hour holds and due process

    FREDKEEFER:
    Well you either are a liar or an idiot,

    She is neither. She is correct in what she told you.

    FREDKEEFER:
    If you read the entire statute you would have seen 27-65-105 (b) which says and I will quote...

    It is evident to me that you are the one who failed to read the entire statute carefully. Look at it again. Subsection (1) starts with this: "Emergency procedure may be invoked under EITHER one of the following two conditions:..." (emphasis added). It then goes on with two paragraphs, (a) and (b). Thus, the commitment procedure may be invoked if EITHER paragraph (a) OR (b) are met.

    Paragraph (a) allows certain designated persons to take an individual who appears to have a mental illness into custody and commit them to a facility for 72 hours if they have probable cause to believe the individual is an imminent danger to herself or others. Paragraph (a) does NOT require prior court approval. The reason for this paragraph is that the legislature recognized that the delay in going to court might result in harm that could have been avoided by prompt action.

    Paragraph (b) allows anyone to go to court to seek a court order to take the person into custody for a 72 hour commitment. That person must file the affidavit described in that paragraph. This provision is here because it's not always possible to get one of the designated persons to make the commitment under paragraph (a) but there may still be need to commit the person to avoid harm to himself or others.

    Because (a) and (b) are alternative provisions, the commitment was proper if either of those were met. So, bottom line, if one of the persons designated in paragraph (a) made the commitment upon having probable cause to believe that she was a danger to herself or others, then the commitment was proper under the statute.

  • 05-10-2012 12:27 AM In reply to

    Re: 72 hour holds and due process

    FREDKEEFER:
    And apparently it rarely happens that these "psychologist"  swear their afidavit in front of a judge!

    Right, because they aren't required to go before a judge before ordering the commitment. Under CRS § 27-65-102(17), a professional person is defined as "a person licensed to practice medicine in this state or a psychologist certified to practice in this state." Thus, a psychologist certified to practice in Colorado is a professional person for purposes of Article 65 of the Colorado statutes, which includes of course the emergency commitment provisions in CRS § 27-65-105. CRS § 27-65-105(1)(a) allows a profession person (the psychologist) to order the commitment without going to court if the psychologist has probable cause to believe the person is an imminent danger to herself or others, as I explained in my previous reply.

  • 05-10-2012 10:22 PM In reply to

    Re: 72 hour holds and due process

    You people here are obviously not lawyers!

    The constitution guarantees due process.

    Due Process means a judges order!

    you cannot write a statute that contradicts the due process clause!

    27-65-105 describes who can make the application, and the other section says the person making the application, must swear it in front of a judge!

    It is people like you idiots who are working at the hospitals and kidnapping people illegally!

    You cannot violate someones rights without DUE PROCESS PERIOD..

    holding someone for 72 hours is a violation of their rights unless you follow due process, and I guarantee that.

  • 05-10-2012 10:42 PM In reply to

    Re: 72 hour holds and due process

    FREDKEEFER:
    You people here are obviously not lawyers!

    Tax Agent is a lawyer.

    FREDKEEFER:

    The constitution guarantees due process.

    Due Process means a judges order!

    No.  Due process means the steps are followed.  No where in the definition of due process does it state that it requires a judge's order.  

    FREDKEEFER:
    27-65-105 describes who can make the application, and the other section says the person making the application, must swear it in front of a judge!

    AFTER the 72 hour hold they must swear it in front of the judge IF they wish to keep the patient involuntarily.  The act specifically allows for the identified professionals to place the 72 hour hold WITHOUT going to court.

    FREDKEEFER:
    You cannot violate someones rights without DUE PROCESS PERIOD.

    You clearly don't understand the due process clause of the Constitution.  It states:

    "The constitutional guarantee of due process of law, found in the Fifth and Fourteenth Amendments to the U.S. Constitution, prohibits all levels of government from arbitrarily or unfairly depriving individuals of their basic constitutional rights to life, liberty, and property."

    FREDKEEFER:
    holding someone for 72 hours is a violation of their rights unless you follow due process, and I guarantee that.

    The key words are GOVERNMENT.  Due process does not apply to private business which medical providers fall under.  Due process does NOT come into play until the court hearing when the government is involved.

    FREDKEEFER:
    holding someone for 72 hours is a violation of their rights unless you follow due process, and I guarantee that.

    Due process starts AFTER the 72 hour hold is placed then the patient has the right to a hearing after 72 hours IF the hospital wishes to keep them longer.

    FREDKEEFER:
    It is people like you idiots who are working at the hospitals and kidnapping people illegally!

    I am starting to wonder why they held your wife and not you.  NO amount of rational discussion will convince you that you are mistaken about this law including giving you the exact wording of the statute.  Apparently 30 attorneys turning you down because you don't have a case didn't either.  Best of luck to you and your wife.  You both need it.

     

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • 05-11-2012 12:18 AM In reply to

    • LG81
      Consumer
    • Top 25 Contributor
    • Joined on 01-03-2010
    • Posts 4,338

    Re: 72 hour holds and due process

    FREDKEEFER:

    You people here are obviously not lawyers!

    TaxAgent is a lawyer, and he has taken the time to give you a very understandable and objective explanation.  Since you haven't listened to the ~30 attorneys you have contacted, I guess it makes sense you don't listen to him either.

     ClydeMom is not a lawyer, but she has worked in healthcare for over 27 years.

    FREDKEEFER:

    The constitution guarantees due process.

    Due Process means a judges order!

    The Constitution indeed guarantees due process, but that does not mean a judge's order is required.  You also need to read the responses to understand what applies to your situation.

    If a medical professional believes a patient is a harm to herself or others, it is mandatory she be held for 72 hours for psychiatric observation.  I will respond to your original post shortly to explain things that seem bizarre about your situation.  Keep in mind that I also can only read what you posted, so there may be even more to the story.

  • 05-11-2012 12:30 AM In reply to

    • LG81
      Consumer
    • Top 25 Contributor
    • Joined on 01-03-2010
    • Posts 4,338

    Re: 72 hour holds and due process

    FREDKEEFER:
    My wife had run downstairs crying and
    four more security guards tackled my 100 pound wife who has a broken pelvis and they slammed her on the asphalt of the parking lot

    This in itself is very bizarre.  I have never known anyone with a broken pelvis having the ability to run down any stairs.  If she was able to do that on a broken pelvis, she would have had to be full of some sort of adrenaline that would indicate she could be mentally unstable.

    FREDKEEFER:
    four more security guards tackled my 100 pound wife
    FREDKEEFER:
    grabbed the guard to get him off my 100 pound wife
    FREDKEEFER:
    (a 100 pound woman with a broken pelvis)

    I believe everyone gets the first time you indicate your wife is 100 pounds.  If someone was acting with such anxiety or other behavior that she was able to run down stairs with a broken pelvis, I can see why it may have required four security guards to hold her down.

     

  • 05-11-2012 12:57 AM In reply to

    Re: 72 hour holds and due process

    We were leaving to go to another hospital!  The security guard grabbed my wife and threw her down in the stairwell! This was an unprovoked assault! This place had no legal right to hold my wife! and they certainly had no right to assault my wife! Everyone has a right to refuse services and seek a second opinion!

    No one can convince me that a single person, no matter what their profession has the absolute right to hold someone against their will and inject un-disclosed drugs into their body!

    The Colorado law sets out the procedure and names the people who can initiate the procedure!

    The procedure starts with an affidavit called an M1 application!

    Just the fact that it is an AFFIDAVIT means IT MUST BE SWORN TO!

    NOW IF TAXMAN LAWYER CANNOT UNDERSTAND THAT, I hope he has a better grasp on tax law!

    I need a lawyer who specializes in title 42 sec. 1983 lawsuits.

    This was all a COLOR OF LAW ACTION!

    The hospital pretended to have a court order and the people down the line did not even question the legality of the hold!

     

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