(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.
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.
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.
Cross references: For privilege of communication of physicians generally, see �� 13-90-107 (1)(d) and 13-90-108.
27-65-124. Request for release of information - procedures - review of a decision concerning release of information. (1) When a family member requests the location and fact of admission of a person with a mental health disorder pursuant to section 27-65-123 (1)(g), the treating professional person or the professional person's 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 the professional person's 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 27-65-123 (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, lay person, 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 27-65-123 (1)(h) concerning a person with a mental health disorder, the treating professional person or the professional person's designee shall determine whether the person with a mental health disorder is capable of making a rational decision in weighing the person's confidentiality interests and the care and treatment interests implicated by the release of information. The treating professional person or the professional person's 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:
(I) If the treating professional person or the professional person's designee makes a finding that the person with a mental health disorder is capable of making a rational decision concerning the person's interests and the person with a mental health disorder consents to the release of information, the treating professional person or the professional person's designee shall order the release of the information unless the professional person or the professional person's designee determines that the release would not be in the best interests of the person with a mental health disorder.
(II) If the treating professional person or the professional person's designee makes a finding that the person with a mental health disorder is capable of making a rational decision concerning the person's interests and the person with a mental health disorder objects to the release of information, the treating professional person or the professional person's designee shall not order the release of the information.
(III) If the treating professional person or the professional person's designee makes a finding that the person with a mental health disorder is not capable of making a rational decision concerning the person's interests, the treating professional person or the professional person's designee may order the release of the information if the professional person or the professional person's designee determines that the release would be in the best interests of the person with a mental health disorder.
(IV) Any determination as to capacity pursuant to this subsection (2)(a) must be used only for the limited purpose of this subsection (2)(a).
(b) A decision by a treating professional person or the professional person's designee concerning the capability 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 the professional person's 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.
(c) The director of the treating facility shall make a record of any information given to a family member pursuant to subsection (2)(a) of this section and section 27-65-123 (1)(h).
(3) When administrative review is requested pursuant to subsection (1) or (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 the director is a professional person. If the director is not available or if the director cannot provide an objective and impartial review, the review must 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.
(4) If a person with a mental health disorder objects to the release or withholding of information, the person with a mental health disorder and the person's 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 the person's care and treatment is released.
(5) A family member whose request for information is denied must be provided with information concerning the procedures for administrative review of a decision to release or withhold information.
(6) A person with a mental health disorder may file a written request for review by the court of a decision made upon administrative review to release information to a family member requested pursuant to section 27-65-123 (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 the person's 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.
(7) 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 the professional person's designee shall not release information requested pursuant to section 27-65-123 (1)(h) until five days after the determination upon administrative review of the director or the director's 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 the professional person's 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 the person 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.
(8) This section provides for the release of information only and is not deemed to authorize the release of the written medical record without authorization by the patient or as otherwise provided by law.
(9) For purposes of this section, the treating professional person's designee shall be a professional person.
Source: L. 2022: Entire article amended with relocations, (HB 22-1256), ch. 451, p. 3199, � 1, effective August 10.
Editor's note: This section is similar to former � 27-65-122 as it existed prior to 2022.