(1) When a family member requests the location and fact of admission of a person with a mental health disorder pursuant to section 27-65-121 (1)(g), the treating professional person or his or her designee, who must be a professional person, shall decide whether to release or withhold such information. The location must be released unless the treating professional person or his or her designee determines, after an interview with the person with a mental health disorder, that release of the information to a particular family member would not be in the best interests of the person with a mental health disorder. Any decision to withhold information requested pursuant to section 27-65-121 (1)(g) is subject to administrative review pursuant to this section upon request of a family member or the person with a mental health disorder. The treating facility shall make a record of the information given to a family member pursuant to this subsection (1). For the purposes of this subsection (1), an adult person having a similar relationship to a person with a mental health disorder as a spouse, parent, child, or sibling of a person with a mental health disorder may also request the location and fact of admission concerning a person with a mental health disorder.
(2) (a) When a family member requests information pursuant to section 27-65-121 (1)(h) concerning a person with a mental health disorder, the treating professional person or his or her designee shall determine whether the person with a mental health disorder is capable of making a rational decision in weighing his or her confidentiality interests and the care and treatment interests implicated by the release of information. The treating professional person or his or her designee shall then determine whether the person with a mental health disorder consents or objects to the release of information. Information must be released or withheld in the following circumstances:
If the treating professional person or his or her designee makes a finding that theperson with a mental health disorder is capable of making a rational decision concerning his or her interests and the person with a mental health disorder consents to the release of information, the treating professional person or his or her designee shall order the release of the information unless he or she determines that the release would not be in the best interests of the person with a mental health disorder.
If the treating professional person or his or her designee makes a finding that theperson with a mental health disorder is capable of making a rational decision concerning his or her interests and the person with a mental health disorder objects to the release of information, the treating professional person or his or her designee shall not order the release of the information.
If the treating professional person or his or her designee makes a finding that theperson with a mental health disorder is not capable of making a rational decision concerning his or her interests, the treating professional person or his or her designee may order the release of the information if he or she determines that the release would be in the best interests of the person with a mental health disorder.
Any determination as to capacity pursuant to this subsection (2)(a) must be usedonly for the limited purpose of this subsection (2)(a).
A decision by a treating professional person or his or her designee concerning thecapability of a person with a mental health disorder pursuant to subsection (2)(a)(III) of this section is subject to administrative review upon the request of the person with a mental health disorder. A decision by a treating professional person or his or her designee to order the release or withholding of information pursuant to subsection (2)(a)(III) of this section is subject to administrative review upon the request of either a family member or the person with a mental health disorder.
The director of the treating facility shall make a record of any information given to afamily member pursuant to subsection (2)(a) of this section and section 27-65-121 (1)(h).
When administrative review is requested either pursuant to subsection (1) or subsection (2)(b) of this section, the director of the facility providing care and treatment to the person with a mental health disorder shall cause an objective and impartial review of the decision to withhold or release information. The director of the facility shall conduct the review, if he or she is a professional person. If the director is not available or if the director cannot provide an objective and impartial review, the review shall be conducted by a professional person designated by the director of the facility. The review must include, but need not be limited to, an interview with the person with a mental health disorder. The facility providing care and treatment shall document the review of the decision.
If a person with a mental health disorder objects to the release or withholding ofinformation, the person with a mental health disorder and his or her attorney, if any, must be provided with information concerning the procedures for administrative review of a decision to release or withhold information. The person with a mental health disorder must be informed of any information proposed to be withheld or released and to whom and be given a reasonable opportunity to initiate the administrative review process before information concerning his or her care and treatment is released.
A family member whose request for information is denied shall be provided withinformation concerning the procedures for administrative review of a decision to release or withhold information.
A person with a mental health disorder may file a written request for review by thecourt of a decision made upon administrative review to release information to a family member requested pursuant to section 27-65-121 (1)(h) and proposed to be released pursuant to subsection (2) of this section. If judicial review is requested, the court shall hear the matter within ten days after the request, and the court shall give notice to the person with a mental health disorder and his or her attorney, the treating professional person, and the person who made the decision upon administrative review of the time and place of the hearing. The hearing must be conducted in the same manner as other civil proceedings before the court.
In order to allow a person with a mental health disorder an opportunity to seek judicial review, the treating facility or the treating professional person or his or her designee shall not release information requested pursuant to section 27-65-121 (1)(h) until five days after the determination upon administrative review of the director or his or her designee is received by the person with a mental health disorder, and, once judicial review is requested, the treating facility or the treating professional person or his or her designee shall not release information except by court order. However, if the person with a mental health disorder indicates an intention not to appeal a determination upon administrative review that is adverse to him or her concerning the release of information, the information may be released less than five days after the determination upon review is received by the person with a mental health disorder.
This section provides for the release of information only and shall not be deemed toauthorize the release of the written medical record without authorization by the patient or as otherwise provided by law.
For purposes of this section, the treating professional person's designee shall be aprofessional person.
Source: L. 2010: Entire article added with relocations, (SB 10-175), ch. 188, p. 695, § 2, effective April 29. L. 2017: (1), (2), (3), (4), (6), and (7) amended, (SB 17-242), ch. 263, p. 1345, § 241, effective May 25.
Editor's note: This section is similar to former § 27-10-120.5 as it existed prior to 2010.
Cross references: For the legislative declaration in SB 17-242, see section 1 of chapter 263, Session Laws of Colorado 2017.