27-65-123. Records.

Statute text

(1) Except as provided in subsection (2) of this section, all information obtained and records prepared in the course of providing any services to any person pursuant to any provision of this article 65 are confidential and privileged matter. The information and records may be disclosed only:

(a) In communications between qualified professionals, facility personnel, or state agencies in the provision of services or appropriate referrals;

(b) When the recipient of services designates persons to whom information or records may be released; but, if a recipient of services is a ward or conservatee and the ward's or conservatee's guardian or conservator designates, in writing, persons to whom records or information may be disclosed, the designation is valid in lieu of the designation by the recipient; except that nothing in this section compels a physician, psychologist, social worker, nurse, attorney, or other professional personnel to reveal information that has been given to the person in confidence by members of a patient's family or other informants;

(c) To the extent necessary to make claims on behalf of a recipient of aid, insurance, or medical assistance to which the recipient may be entitled;

(d) If the BHA has promulgated rules for the conduct of research. Such rules must include, but are not limited to, the requirement that all researchers must sign an oath of confidentiality. All identifying information concerning individual patients, including names, addresses, telephone numbers, and social security numbers, must not be disclosed for research purposes.

(e) To the courts, as necessary for the administration of this article 65;

(f) To persons authorized by an order of court after notice and opportunity for hearing to the person to whom the record or information pertains and the custodian of the record or information pursuant to the Colorado rules of civil procedure;

(g) To family members upon admission of a person with a mental health disorder for inpatient or residential care and treatment. The only information that may be released pursuant to this subsection (1)(g) is the location and fact of admission of the person with a mental health disorder who is receiving care and treatment. The disclosure of location is governed by the procedures in section 27-65-124 and is subject to review pursuant to section 27-65-124.

(h) To family members or a lay person actively participating in the care and treatment of a person with a mental health disorder, regardless of the length of the participation. The information released pursuant to this subsection (1)(h) is limited to one or more of the following: The diagnosis, the prognosis, the need for hospitalization and anticipated length of stay, the discharge plan, the medication administered and side effects of the medication, and the short-term and long-term treatment goals. The disclosure is governed by the procedures in section 27-65-124 (2) and is subject to review pursuant to section 27-65-124.

(i) In accordance with state and federal law to the agency designated pursuant to the federal "Protection and Advocacy for Individuals with Mental Illness Act", 42 U.S.C. sec. 10801 et seq., as the governor's protection and advocacy system for Colorado.

(2) Nothing in subsection (1)(g) or (1)(h) of this section precludes the release of information to a parent concerning the parent's minor child.

(3) (a) Nothing in this article 65 renders privileged or confidential any information, except written medical records and information that is privileged pursuant to section 13-90-107, concerning observed behavior that constitutes a criminal offense committed upon the premises of any facility providing services pursuant to this article 65 or any criminal offense committed against any person while performing or receiving services pursuant to this article 65.

(b) Subsection (1) of this section does not apply to physicians or psychologists eligible to testify concerning a criminal defendant's mental condition pursuant to section 16-8-103.6.

(4) (a) All facilities shall maintain and retain permanent records, including all applications as required pursuant to section 27-65-106 (3).

(b) Outpatient or ambulatory care facilities shall retain all records for a minimum of seven years after discharge from the facility for persons who were eighteen years of age or older when admitted to the facility, or until twenty-five years of age for persons who were under eighteen years of age when admitted to the facility.

(c) Inpatient or hospital care facilities shall retain all records for a minimum of ten years after discharge from the facility for persons who were eighteen years of age or older when admitted to the facility, or until twenty-eight years of age for persons who were under eighteen years of age when admitted to the facility.

(5) Nothing in this section prohibits or limits the sharing of information by a state institution of higher education police department to authorized university administrators pursuant to section 23-5-141.

(6) Nothing in this section prohibits the limited disclosure of necessary information to the prosecuting attorney and criminal defense counsel if a criminal case is still pending against the person.

History

Source: L. 2022: (1)(d) amended, (HB 22-1278), ch. 222, p. 1541, 122, effective July 1; entire article amended with relocations, (HB 22-1256), ch. 451, p. 3198, 1, effective August 10. L. 2023: (1)(a) amended, (HB 23-1236), ch. 206, p. 1067, 39, effective May 16; (6) added, (HB 23-1138), ch. 423, p. 2492, 20, effective July 1, 2024.

Annotations

Editor's note: (1) This section is similar to former 27-65-121 as it existed prior to 2022.

(2) Subsection (1)(d) was numbered as 27-65-121 (1)(d) in HB 22-1278 (see L. 2022, p. 1541). That provision was harmonized with this section as it appears in HB 22-1256.

Annotations

Cross references: For privilege of communication of physicians generally, see 13-90-107 (1)(d) and 13-90-108.

Annotations

 

ANNOTATION

Annotations

Law reviews. For article, "Patients' Rights vs. Patients' Needs: The Right of the Mentally Ill to Refuse Treatment in Colorado", see 58 Den. L.J. 567 (1981). For article, "Status Report: The 'Confidentiality Law'", see 19 Colo. Law. 441 (1990).

Annotator's note. Since 27-65-123 is similar to 27-65-121 as it existed prior to the 2022 amendments to this article, relevant cases construing that provision have been included in the annotations to this section.

Use of information in criminal proceeding limited. No information produced at a hearing on involuntary short-term certification for psychiatric treatment can be used to incriminate the person sought to be committed in future criminal proceedings, unless it is available to the prosecution from other sources. People v. Taylor, 618 P.2d 1127 (Colo. 1980).

In a federal criminal prosecution and investigation, federal privilege law preempts this more protective Colorado privilege statute. In Re Grand Jury No. 91-1, 795 F. Supp. 1057 (D. Colo. 1992).

Because of the curtailment of personal liberty that results from certification of mental illness, strict adherence to the procedural requirements in civil commitment statutes is required. People in Interest of Dveirin, 755 P.2d 1207 (Colo. 1988); People in Interest of Reynes, 870 P.2d 518 (Colo. App. 1993).

Psychologist-client privilege. In keeping with the statutory goal of securing care and treatment on an individual basis, this section is intended as an authorization for a psychologist to testify to observations concerning an involuntarily detained person when the issue before the court is whether the statutory conditions for certification for short-term treatment have been satisfied. People v. District Court, 797 P.2d 1259 (Colo. 1990); People v. Hynes, 917 P.2d 328 (Colo. App. 1996).

Applied in Brady v. Hopper, 570 F. Supp. 1333 (D. Colo. 1983).