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Last updated November 2003
CHAPTER 43
COMMITMENT PROCEDURES
ARTICLE 1
MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES
43-1-1. Mental
condition of criminal defendants; evaluation; treatment.
A.
Whenever a district court finds it necessary to obtain an evaluation of
the mental condition of a defendant in a criminal case, the court shall order
an evaluation from a qualified professional available to the local facilities
of the court or from a qualified professional at a local mental health center
designated by the secretary of health, and whenever the court finds it desirable
to use state personnel or facilities to assist in making the evaluation, the
court shall in its order for an evaluation require service upon the secretary
of health of the court's order for evaluation. The secretary of health shall
arrange for a qualified professional furnished by the state to visit the
defendant in local facilities available to the court or shall designate
suitable available facilities. If the secretary of health designates a local
mental health center or a state facility for the defendant's evaluation within
forty-eight hours of service of the evaluation order, the secretary of health
shall notify the court of such designation. The court shall then enter an
appropriate transport order which also provides for the return of the defendant
to the local facilities of the court. The defendant shall be transported by the
county to facilities designated by the secretary of health for the purpose of
making an evaluation. Misdemeanor defendants shall be evaluated locally.
B.
If the secretary of health elects to have the defendant retained at the
district court's local facilities, the qualified professional furnished by the
state shall visit the local facilities not later than two weeks from the time
of service of the court's evaluation order upon the secretary of health
and:
(1) after the evaluation of the
defendant is completed, the qualified professional furnished by the state shall
be available for deposition to declare his findings. The usual rules of
evidence governing the use and admission of the deposition shall prevail;
and
(2) if the secretary of health finds
that the qualified professional will be unable to initiate the evaluation
within two weeks from the time of service of the court's evaluation order upon
the secretary of health, the secretary of health shall call upon the county
sheriff of the county in which the defendant is incarcerated and have the
defendant transported to facilities designated by the secretary of health for
the purpose of conducting the evaluation.
C.
If the secretary of health elects to have the defendant transported to
the facilities designated by the secretary of health for the purpose of
evaluation, the evaluation shall be commenced as soon as possible after the
admission of the defendant to the facility, but, in no event, shall the
evaluation be commenced later than seventy-two hours after the admission. The
defendant, at the conclusion of the evaluation, shall be returned by the county
sheriff to the local facilities of the court upon not less than three days'
notice. After the evaluation is completed, the qualified professional furnished
by the state shall be available for deposition to declare his findings. The
usual rules of evidence governing the use and admissibility of the deposition
shall prevail.
D.
Documents reasonably required by the secretary of health to show the
medical and forensic history of the defendant shall be furnished by the court
when required.
E.
After an evaluation and upon reasonable notice, the district court may
commit a dangerous defendant charged with a felony pursuant to Section 31-9-1.2
NMSA 1978 or may dismiss the charges without prejudice and refer the defendant
to the district attorney for possible initiation of proceedings under the
Mental Health and Developmental Disabilities Code [this article]. A defendant
so committed under the Mental Health and Developmental Disabilities Code shall
be treated as any other patient committed involuntarily. Whenever the secretary
of health determines that he does not have the ability to meet the medical
needs of a defendant committed pursuant to Sections 31-9-1.2 through 31-9-1.5
NMSA 1978, the secretary or his designee shall serve upon the district court
and the parties a written certification of the lack of ability to meet the
medical needs of the defendant. The court shall set a hearing upon the
certification within ten days of its filing and shall, after the hearing, make
a determination regarding disposition of the criminal case. When deemed by the
secretary of health to be medically appropriate, a dangerous defendant
committed pursuant to Section 31-9-1.2 NMSA 1978 may be returned by the county
sheriff to the custody of the court upon not less than three days' notice. The
secretary shall provide written notification to the court and parties within
three days of the defendant's discharge.
F.
All acts to be performed by the secretary of health pursuant to
provisions of this section may be performed by the secretary's designee.
43-1-2. Short title.
Chapter 43, Article 1 NMSA 1978 may be cited as the
"Mental Health and Developmental Disabilities Code".
43-1-3. Definitions.
As used in the Mental Health and Developmental Disabilities
Code [Chapter 43, Article 1 NMSA 1978]:
A. "aversive stimuli" means
anything which, because it is believed to be unreasonably unpleasant,
uncomfortable or distasteful to the client, is administered or done to the
client for the purpose of reducing the frequency of a behavior, but does not
include verbal therapies, physical restrictions to prevent imminent harm to
self or others or psychotropic medications which are not used for purposes of
punishment;
B. "client" means any
patient who is requesting or receiving mental health services or any person
requesting or receiving developmental disabilities services or who is present
in a mental health or developmental disabilities facility for the purpose of
receiving such services or who has been placed in a mental health or
developmental disabilities facility by his parent or guardian or by any court
order;
C. "code" means the Mental
Health and Developmental Disabilities Code;
D. "consistent with the least
drastic means principle" means that the habilitation or treatment and the
conditions of habilitation or treatment for the client, separately and in
combination:
(1) are no more harsh, hazardous or
intrusive than necessary to achieve acceptable treatment objectives for the
client;
(2) involve no restrictions on
physical movement and no requirement for residential care except as reasonably
necessary for the administration of treatment or for the protection of the
client or others from physical injury; and
(3) are conducted at the suitable
available facility closest to the client's place of residence;
E. "convulsive treatment"
means any form of mental health treatment which depends upon creation of a
convulsion by any means, including but not limited to electroconvulsive
treatment and insulin coma treatment;
F. "court" means a
district court of
G. "department" means the
behavioral health services division of the department of health;
H. "developmental
disability" means a disability of a person which is attributable to mental
retardation, cerebral palsy, autism or neurological dysfunction which requires
treatment or habilitation similar to that provided to persons with mental
retardation;
I. "evaluation facility"
means a community mental health or developmental disability program, a medical
facility having psychiatric or developmental disability services available,
including the Las Vegas medical center, the Los Lunas
hospital and training school or, if none of the foregoing is reasonably
available or appropriate, the office of a licensed physician or a certified
psychologist, any of which shall be capable of performing a mental status
examination adequate to determine the need for involuntary treatment;
J. "experimental
treatment" means any mental health or developmental disabilities treatment
which presents significant risk of physical harm, but does not include accepted
treatment used in competent practice of medicine and psychology and supported
by scientifically acceptable studies;
K. "grave passive neglect"
means failure to provide for basic personal or medical needs or for one's own
safety to such an extent that it is more likely than not that serious bodily
harm will result in the near future;
L. "habilitation" means
the process by which professional persons and their staff assist the
developmentally disabled client in acquiring and maintaining those skills and
behaviors which enable him to cope more effectively with the demands of his own
person and of his environment and to raise the level of his physical, mental
and social efficiency. "Habilitation" includes but is not limited to
programs of formal, structured education and treatment;
M. "likelihood of serious harm
to oneself" means that it is more likely than not that in the near future
the person will attempt to commit suicide or will cause serious bodily harm to
himself by violent or other self-destructive means, including but not limited
to grave passive neglect;
N. "likelihood of serious harm
to others" means that it is more likely than not that in the near future
the person will inflict serious, unjustified bodily harm on another person or
commit a criminal sexual offense, as evidenced by behavior causing, attempting
or threatening such harm, which behavior gives rise to a reasonable fear of
such harm from the person;
O. "mental disorder" means
the substantial disorder of the person's emotional processes, thought or
cognition which grossly impairs judgment, behavior or capacity to recognize
reality, but does not mean developmental disability;
P. "mental health or
developmental disabilities professional" means a physician or other
professional who by training or experience is qualified to work with
individuals with mental disorders or developmental disabilities;
Q. "physician" or
"certified psychologist", when used for the purpose of hospital
admittance or discharge, means a physician or certified psychologist who has
been granted admitting privileges at a hospital licensed by the department of
health, if such privileges are required;
R. "psychosurgery" means
those operations currently referred to as lobotomy, psychiatric surgery and
behavioral surgery, and all other forms of brain
surgery if the surgery is performed for the purpose of the following:
(1) modification or control of
thoughts, feelings, actions or behavior rather than the treatment of a known
and diagnosed physical disease of the brain;
(2) treatment of abnormal brain
function or normal brain tissue in order to control thoughts, feelings, actions
or behavior; or
(3) treatment of abnormal brain
function or abnormal brain tissue in order to modify thoughts, feelings,
actions or behavior when the abnormality is not an established cause for those
thoughts, feelings, actions or behavior.
"Psychosurgery" does not include prefrontal sonic
treatment in which there is no destruction of brain tissue;
S. "residential treatment or
habilitation program" means diagnosis, evaluation, care, treatment or
habilitation rendered inside or on the premises of a mental health or
developmental disabilities facility, hospital, clinic, institution or
supervisory residence or nursing home when the individual resides on the
premises;
T. "treatment" means any
effort to accomplish a significant change in the mental or emotional condition
or behavior of the client; and
U. "division" means the behavioral health services
division of the department of health.
43-1-4. Legal
representation of clients.
A.
All clients shall be represented by counsel at all proceedings under the
code, and shall be entitled to obtain advice of counsel at any time regarding
their status under the code.
B.
When a client has not retained his own attorney and is unable to do so,
the court shall appoint counsel to represent him. When appointing counsel, the
court shall give preference to nonprofit organizations offering representation
to mentally ill and developmentally disabled persons. When a client is not
indigent, he shall be liable for the cost of his legal representation.
43-1-5. Competence.
Neither the fact that a person has been accepted at or
admitted to a hospital or institutional facility, nor the receiving of mental
health or developmental disability treatment services, shall constitute a
sufficient basis for a finding of incompetence or the denial of any right or
benefit of whatever nature which he would have otherwise.
43-1-6. Personal
rights of residential clients.
All clients who receive residential treatment or
habilitation services shall have the rights provided in this section.
A. Subject to restrictions by a
physician for good cause, each resident client has the right to receive
visitors of his own choosing daily. Hours during which visitors may be received
shall be limited only in the interest of effective treatment and the reasonable
efficiency of the supervised residential facility and shall be sufficiently
flexible to accommodate the individual needs of the resident client and his
visitors. Notwithstanding the above, each resident client has the right to
receive visits from his attorney, physician, psychologist, clergyman or social
worker in private at any reasonable time, irrespective of visiting hours,
provided the visitor shows reasonable cause for visiting at times other than
normal visiting hours.
B. Writing material and postage
stamps shall be reasonably available for the resident clients' use in writing
letters and other communications. Reasonable assistance shall be provided for
writing, addressing and posting letters and other documents upon request. The
resident client has the right to send and receive sealed and uncensored mail.
The resident client has the right to reasonable private access to telephones
and, in cases of personal emergencies when other means of communication are not
satisfactory, he shall be afforded reasonable use of long distance calls.
Provided that for other than mail or telephone calls to a court or an attorney,
a physician or certified psychologist may, for good cause, restrict mailing or
telephone privileges. A resident client who is indigent shall be furnished such
writing, postage and telephone facilities without charge.
C. Each resident client has the
right to follow or abstain from the practice of religion. The supervised
residential facility shall provide appropriate assistance in this connection
including reasonable accommodations for religious worship and transportation to
nearby religious services. Clients who do not wish to participate in religious
practice shall be free from pressure to do so or to accept religious
beliefs.
D. Each resident client has the
right to a humane psychological and physical environment. He shall be provided
a comfortable bed and adequate changes of linen and reasonable storage space
for his personal possessions. Except when curtailed for reason of safety or
therapy as documented in his record by his physician, he shall be afforded
reasonable privacy in his sleeping and personal hygiene practices.
E. Each resident client shall have
reasonable daily opportunities for physical exercise and outdoor exercise and
shall have reasonable access to recreational areas and equipment.
F. Each resident client has the
right to a nourishing, well-balanced, varied and appetizing diet.
G. Each resident client has the
right to prompt and adequate medical attention for any physical ailments and
shall receive a complete physical examination upon admission and at least once
every twelve months thereafter; provided, however, that clients who have
received a complete physical examination within two days prior to the current
admission shall not receive a complete physical examination unless the
physician deems it necessary.
H. All resident clients have the
right to a clean, safe, comfortable environment in a structure which complies
with generally applicable fire safety requirements.
I. All resident clients have a right
to be free from unnecessary or excessive medication. No medication shall be
administered unless at the written order of a licensed physician or by a verbal
order, noted promptly in the patient's medical record and signed by the
physician within twenty-four hours. Medication shall be administered only by a
licensed physician, registered nurse or licensed practical nurse or by a
medical or nursing student under the direct supervision of a licensed physician
or registered nurse. The attending physician shall be responsible for all
medication given or administered to a resident client. Notation of each
individual's medication shall be kept in his medical records and shall include a
notation by the physician of the behavioral or symptomatic baseline data upon
which the medication order was made. The attending physician shall review on a
regular basis the drug regimen of each resident client under his care. All
prescriptions for psychotropic medications shall be written with a termination
date which shall not exceed thirty days. Medication shall not be used as a
punishment, for the convenience of staff, as a substitute for programs or in
quantities that interfere with the client's treatment or habilitation
program.
43-1-7. Right to
treatment.
Each resident client receiving mental health services shall
have the right to prompt treatment pursuant to an individualized treatment plan
and consistent with the least drastic means principle.
43-1-8. Right to
habilitation.
Each resident client receiving developmental disabilities
services shall have the right to prompt habilitation services pursuant to an
individualized habilitation plan and consistent with the least drastic means
principle.
43-1-9. Individualized
treatment or habilitation plans.
A.
An individualized treatment or habilitation plan shall be prepared
within fourteen days of a client's admission to residential treatment or
services.
B.
Each client shall, to the maximum extent possible, be involved in the
preparation of his own individualized treatment or habilitation plan.
C.
Each individualized treatment or habilitation plan shall include:
(1) a statement of the nature of the
specific problem and the specific needs of the client;
(2) a statement of the least
restrictive conditions necessary to achieve the purposes of treatment or
habilitation;
(3) a description of intermediate
and long-range goals, with the projected timetable for their attainment;
(4) a statement and rationale for
the plan of treatment or habilitation for achieving these intermediate and
long-range goals;
(5) specification of staff
responsibility and a description of the proposed staff involvement with the
client in order to attain these goals; and
(6) criteria for release to less
restrictive settings for treatment or habilitation, criteria for discharge and
a projected date for discharge.
D.
A treatment or habilitation plan for resident clients shall
include:
(1) mental status examination;
(2) intellectual function
assessment;
(3) psychological assessment, which
may include the use of psychological testing;
(4) educational assessment;
(5) vocational assessment;
(6) social assessment;
(7) medication assessment; and
(8) physical assessment.
E.
The individualized treatment or habilitation plan shall be available
upon request to the following persons:
the client; the client's attorney; any mental health or developmental
disabilities professional designated by the client; and the client's guardian
or treatment guardian if one has been appointed. The client's progress in attaining the goals
and objectives set forth in his individualized treatment or habilitation plan
shall be monitored and noted in his records, and revisions in the plan may be
made as circumstances require; provided that the persons authorized by this
subsection to have access to the individualized plan shall be informed of major
changes and shall have the opportunity to participate in such decision. Nothing
in this subsection shall require disclosure of information to a client or to
his parent when the attending physician or certified psychologist believes that
disclosure of that particular information would be damaging to the client and
so records in the client's medical record.
43-1-10. Emergency
mental health evaluation and care.
A.
A peace officer may detain and transport a person for emergency mental
health evaluation and care in the absence of a legally valid order from the
court only if:
(1) the person is otherwise subject
to lawful arrest;
(2) the peace officer has reasonable
grounds to believe the person has just attempted suicide;
(3) the peace officer, based upon
his own observation and investigation, has reasonable grounds to believe that
the person, as a result of a mental disorder, presents a likelihood of serious
harm to himself or others and that immediate detention is necessary to prevent
such harm. Immediately upon arrival at the evaluation facility, the peace
officer shall be interviewed by the admitting physician or his designee;
or
(4) a licensed physician or a
certified psychologist has certified that the person, as a result of a mental
disorder, presents a likelihood of serious harm to himself or others and that
immediate detention is necessary to prevent such harm. Such certification shall
constitute authority to transport the person.
B.
An emergency evaluation under this section shall be accomplished upon
the request of a peace officer, or jail or detention facility administrator or
his designee, or upon the certification of a licensed physician or certified
psychologist as described in Subsection C of this section. A court order is not
required under this section. If an application is made to a court, the court's
power to act in furtherance of an emergency admission shall be limited to
ordering that:
(1) the client be seen by a
certified psychologist or psychiatrist prior to transport to an evaluation
facility; and
(2) a peace officer transport the person to an evaluation facility.
C.
An evaluation facility may accept for an emergency based admission any
person when a licensed physician or certified psychologist certifies that such
person, as a result of a mental disorder, presents a likelihood of serious harm
to himself or others and that immediate detention is necessary to prevent such
harm. Such certification shall constitute authority to transport the
person.
D.
Any person detained under this section shall, whenever possible, be
taken immediately to an evaluation facility. Detention facilities shall be used
as temporary shelter for such persons only in cases of extreme emergency for
protective custody, and no person taken into custody under the provisions of
the code shall remain in a detention facility longer than necessary and in no
case longer than twenty-four hours. If use of a detention facility is
necessary, the proposed client:
(1) shall not be held in a cell with
prisoners;
(2) shall not be identified on
records used to record custody of prisoners;
(3) shall be provided adequate
protection from possible suicide attempts; and
(4) shall be treated with the
respect and dignity due every citizen who is neither accused nor convicted of a
crime.
E.
The admitting physician or certified psychologist shall evaluate whether
reasonable grounds exist to detain the proposed client for evaluation and
treatment, and, if such reasonable grounds are found, the proposed client shall
be detained. If the admitting physician or certified psychologist determines
that reasonable grounds do not exist to detain the client for evaluation and
treatment, the client shall not be detained.
F.
Upon arrival at an evaluation facility, the proposed client shall be
informed orally and in writing by the evaluation facility of the purpose and
possible consequences of the proceedings, the allegations in the petition, his
right to a hearing within seven days, his right to counsel and his right to
communicate with an attorney and an independent mental health professional of
his own choosing, and shall have the right to receive necessary and appropriate
treatment.
G.
A peace officer who transports any client to an evaluation facility
under the provisions of this section shall not require a court order to be
reimbursed by the referring county.
43-1-11. Commitment of
adults for thirty-day period.
A.
Every adult client involuntarily admitted to an evaluation facility
pursuant to Section 43-1-10 NMSA 1978 has the right to a hearing within seven
days of admission unless waived after consultation with counsel. If the
division, physician or evaluation facility decides to seek commitment of the
client for evaluation and treatment, a petition shall be filed with the court
within five days of admission requesting the commitment. The petition shall include a description of
the specific behavior or symptoms of the client which evidence a likelihood of
serious harm to the client or others and shall include an initial screening
report by the evaluating physician individually or with the assistance of a
mental health professional or, if a physician is not available, by a mental
health professional acceptable to the court. The petition shall list the
prospective witnesses for commitment and a summary of the matters to which they
will testify. Copies of the petition shall be served on the client and the
client's attorney.
B.
At the hearing, the client shall be represented by counsel and shall
have the right to present evidence on his behalf, including testimony by an
independent mental health professional of his own choosing, to cross-examine
witnesses and to be present at the hearing. The presence of the client may be
waived upon a showing to the court that the client knowingly and voluntarily
waives his right to be present. A complete record of all proceedings shall be
made.
C.
Upon completion of the hearing, the court may order a commitment for
evaluation and treatment not to exceed thirty days if the court finds by clear
and convincing evidence that:
(1) as a result of a mental
disorder, the client presents a likelihood of serious harm to himself or
others;
(2) the client needs and is likely
to benefit from the proposed treatment; and
(3) the proposed commitment is
consistent with the treatment needs of the client and with the least drastic
means principle.
D.
Once the court has made the findings set forth in Subsection C of this
section, the court shall hear further evidence as to whether the client is
capable of informed consent. If the court determines that the client is
incapable of informed consent, the court shall appoint for the client a
treatment guardian who shall have only those powers enumerated in Section
43-1-15 NMSA 1978.
E.
Any interested person who reasonably believes that an adult is suffering
from a mental disorder and presents a likelihood of serious harm to himself or
others, but does not require emergency care, may request the district attorney
to investigate and determine whether reasonable grounds exist to commit the
adult for a thirty-day period of evaluation and treatment. The applicant may present to the district
attorney any medical reports or other evidence immediately available to him,
but shall not be required to obtain a medical report or other particular
evidence in order to make such petition. The district attorney shall act on the
petition within seventy-two hours. If
the district attorney determines that reasonable grounds exist to commit the
adult, he may petition the court for a hearing.
The court may issue a summons to the proposed client to appear at the
time designated for a hearing which shall be not less than five days from the
date the petition is served. If the proposed client is summoned and fails to
appear at the proposed time and upon a finding of the court that the proposed
client has failed to appear, or appears without having been evaluated, the
court may order the proposed client to be detained for evaluation as provided
for in Subsection C of Section 43-1-10 NMSA 1978.
F.
Any hearing provided for pursuant to Subsection E of this section shall
be conducted in conformance with the requirements of Subsection B of this
section.
43-1-12. Extended
commitment of adults.
A.
The department, physician or evaluation facility may file a petition for
extended commitment within twenty-one days after the beginning of the
thirty-day commitment. The petition must explain the necessity for extended
commitment, specify the treatment which has been provided during the
evaluation, and must include an individual treatment plan for the proposed
commitment period. The petition shall also list the prospective witnesses for
commitment and a summary of the matters to which they will testify. Copies of
the petition shall be served on the client and the client's attorney.
B.
A hearing shall be held upon the petition prior to the expiration of the
thirty-day commitment period, at which the client shall have all rights granted
to him under Section 43-1-11 NMSA 1978 and in addition shall have a right to a
trial by a six-person jury if requested, and to an expeditious appeal, unless
waived.
C.
If, at the conclusion of the hearing, the fact finder determines by
clear and convincing evidence that the client presents a likelihood of harm to
himself or others, that extended treatment is likely to improve the client's
condition and that the proposed extended commitment is consistent with the
least drastic means principle, the court shall order commitment of the client
for a period not to exceed six months, except that when the client has been
committed for two consecutive periods of commitment, any commitment commencing
thereafter shall not exceed one year. At the expiration of the commitment order
the client may be detained only after a new commitment hearing, unless waived
after consultation with the client's attorney, and entry of a new order for
commitment not to exceed six months.
D.
Any client involuntarily referred for treatment pursuant to this section
shall be entitled to a reexamination of the order for his involuntary referral
for treatment on his own petition, or that of his legal guardian, parent,
spouse, relative or friend, to the district court of the county in which he
resides or is detained. Upon receipt of the petition, the court shall conduct a
proceeding in accordance with this section except that such proceeding shall
not be required to be conducted if the petition is filed sooner than sixty days
after the issuance of the order for involuntary referral for treatment or
sooner than sixty days after the filing of a previous petition under this
subsection.
E.
Nothing in this section shall limit the right of a client to petition
the court for a writ of habeas corpus.
F.
Nothing in this code shall prohibit a client from seeking voluntary
admission under Section 43-1-14 NMSA 1978.
G.
No mental health treatment facility is required to detain, treat or
provide services to a client when the client does not require such detention,
treatment or services.
43-1-13. Involuntary
commitment of developmentally disabled adults to residential care.
A.
A guardian, appointed pursuant to the Probate Code [Chapter 45 NMSA
1978], may file an application with the department or an evaluation facility
seeking residential habilitation services for his ward. The application shall
set forth the basis for the guardian's belief that residential habilitation is
necessary and shall include a copy of pertinent medical and psychological
evaluations which have been completed.
B.
Upon receipt of an application filed according to Subsection A of this
section, the department or evaluation facility may accept the client for a
period of evaluation and treatment not to exceed fourteen days. An evaluation
facility shall prepare an individual habilitation plan which shall be
consistent with the least drastic means principle.
C.
If the habilitation plan recommends residential services, the department
or evaluation facility shall file with the court a petition for extended
residential placement. Upon receipt of the petition, the court shall appoint an
attorney to represent the client. Notice of the hearing scheduled on the
petition and a copy of the habilitation plan shall be given to the client, his
attorney and his guardian. The petition shall contain a list of the names and
addresses of proposed witnesses.
D.
At the hearing on the petition, the proposed client shall be represented
by counsel, and shall have the right to present evidence on his behalf,
including testimony of a developmental disability professional of his choosing,
to cross-examine witnesses, to be present at the hearing, and to trial by a
six-person jury, if requested. A complete record of the hearing shall be made.
There shall be a right to an expeditious appeal.
E.
The court shall order residential placement of the proposed client if it
is established by clear and convincing evidence that the proposed client has a
developmental disability which creates an imminent likelihood of serious harm
to himself or others or the person is so greatly disabled that residential
services would be in his best interest and that such residential placement is,
in his case, the least drastic means. The court's order of residential
placement shall be for a period not to exceed six months. At the expiration of
the commitment order, the client may be detained only after a new commitment
hearing, unless waived after consultation with the client's attorney, and entry
of a new order for commitment not to exceed six months.
F.
The court shall order that placement which is least restrictive to the
client, and may order attendance and participation as a nonresident in
habilitation programs conducted at residential or nonresidential
facilities.
G.
Any client involuntarily referred for habilitation treatment shall be
entitled to a reexamination of the order for his involuntary referral for
habilitation and treatment on his own petition, or that of his legal guardian,
parent, spouse, relative or friend, to the district court of the county in
which he resides or is detained. Upon receipt of the petition, the court shall
conduct or cause to be conducted by a special commissioner a proceeding in
accordance with this section except that such proceeding shall not be required
to be conducted if the petition is filed sooner than sixty days after the
issuance of the order for involuntary referral for habilitation and treatment
or sooner than sixty days after the filing of a previous petition under this
subsection.
H.
Nothing in this section shall limit the right of a client to petition
the court for a writ of habeas corpus.
I.
No developmental disabilities treatment or habilitation facility is
required to detain, treat or provide services to a
client when the client does not appear to require such detention, treatment or
habilitation.
43-1-14. Voluntary
admission to residential treatment or habilitation.
A.
Consistent with the provisions of Section 43-1-16 NMSA 1978, any person
may voluntarily present himself for admission to residential treatment or
habilitation.
B.
Nothing in this section shall be construed as depriving voluntary
clients of any right given to involuntary clients.
C.
Any client voluntarily admitted to residential treatment or habilitation
shall have the right to immediate discharge from the residential facility upon
request, unless the director of the facility or a physician determines that the
client requires continued confinement and meets the criteria for involuntary
residential treatment or habilitation under the code. If the director or
physician so determines they [he] shall, on the first business day following
the client's request for release, request the district attorney to initiate
commitment proceedings under the code. The client has a right to a hearing on
his confinement within five days of his request for release.
43-1-15. Consent to
treatment; adult clients.
A.
No psychotropic medication, psychosurgery, convulsive therapy,
experimental treatment or behavior modification program involving aversive
stimuli or substantial deprivations shall be administered to any client without
proper consent. If the client is capable of understanding the proposed nature
of treatment and its consequences and is capable of informed consent, his
consent shall be obtained before the treatment is performed. A client shall not
be presumed to be incapable of giving consent for administration of
psychotropic medications solely because he has been involuntarily committed to
a treatment facility or is awaiting a hearing on whether he should be
involuntarily committed to a treatment facility.
B.
If the mental health or developmental disabilities professional or
physician who is proposing this or any other course of treatment or any other
interested person believes that the client is incapable of informed consent, he
may petition the court for the appointment of a treatment guardian to make a
substitute decision for the client. This petition shall be served on the client
and his attorney. A hearing on the petition shall be held within three court
days. At the hearing, the client shall be represented by counsel and shall have
the right to be present, to present witnesses and to cross-examine opposing
witnesses. If after the hearing the court finds that the client is not capable
of making his own treatment decisions, the court may order the appointment of a
treatment guardian. The treatment guardian shall make a decision on behalf of
the client whether to accept treatment, depending on whether the treatment
appears to be in the client's best interest and is the least drastic means for
accomplishing the treatment objective. In making his decision, the treatment
guardian shall consult with the client and consider his expressed opinions, if
any, even if those opinions do not constitute valid consent or rejection of
treatment. He shall give consideration to any previous decisions made by the
client in similar circumstances when the client was able to make treatment
decisions. If a client, who is not a resident of a medical facility and for
whom a treatment guardian has been appointed, refuses to comply with the
decision of the treatment guardian, the treatment guardian may apply to the
court for an enforcement order. Such an order may authorize any peace officer
to take the client into custody and to transport him to an evaluation facility
and may authorize the facility forcibly to administer treatment. The treatment
guardian shall consult with the physician or other professional who is
proposing treatment, the client's attorney and interested friends or relatives
of the client as he deems appropriate in making his decision. If the client,
physician or other professional wishes to appeal the decision of the treatment
guardian, he may do so, filing an appeal with the court within three calendar
days of receiving notice of the treatment guardian's decision. In such a
decision, the client shall be represented by counsel. The court may overrule
the treatment guardian's decision if it finds that decision to be against the
best interest of the client.
C.
When the court appoints a treatment guardian, it shall specify the
length of time during which he may exercise his powers, up to a maximum period
of one year. If at the end of his guardianship period the treatment guardian
believes that the client is still incapable of making his own treatment
decisions, he shall petition the court for reappointment or for appointment of
a new treatment guardian. The guardianship shall be extended or a new guardian
shall be appointed only if the court finds the client is, at the time of the
hearing, incapable of understanding and expressing an opinion regarding
treatment decisions. The client shall be represented by counsel and shall have
the right to be present and present evidence at all such hearings.
D.
If during a period of a treatment guardian's power the treatment
guardian, the client, the treatment provider, a member of the client's family
or the client's attorney believes that the client has regained competence to
make his own treatment decisions, he shall petition the court for a termination
of the treatment guardianship. If the court finds the client is capable of
making his own treatment decisions, it shall terminate the power of the
treatment guardian and restore to the client the power to make his own
treatment decisions.
E.
A treatment guardian shall only have those powers enumerated in the
code, unless the treatment guardian has also been appointed a guardian under
the Uniform Probate Code [Chapter 45 NMSA 1978] pursuant to provisions of
Section 45-5-303 NMSA 1978. Any person carrying out the duties of a treatment
guardian as provided in this section shall not be liable in any civil or
criminal action so long as the treatment guardian is not acting in bad faith or
with malicious purpose.
F.
If a licensed physician believes that the administration of psychotropic
medication is necessary to protect the client from serious harm which would
occur while the provisions of Subsection B of this section are being satisfied,
he may administer the medication on an emergency basis. When medication is
administered to a client on an emergency basis, the treating physician shall
prepare and place in the client's medical records a report explaining the
nature of the emergency and the reason that no treatment less drastic than
administration of psychotropic medication without proper consent would have
protected the client from serious harm. Upon the sworn application of the
treating physician, the court may issue an order permitting the treating
physician to continue to administer psychotropic medication until a treatment
guardian is appointed, if the requirements of Subsection B of this section for
appointment of a treatment guardian are in the process of being satisfied in a
timely manner.
43-1-16 to 43-1-18.
Repealed.
43-1-19. Disclosure of
information.
A.
Except as otherwise provided in the code, no person shall, without the
authorization of the client, disclose or transmit any confidential information
from which a person well acquainted with the client might recognize the client
as the described person, or any code, number or other means that can be used to
match the client with confidential information regarding him.
B.
Authorization from the client shall not be required for the disclosure
or transmission of confidential information in the following circumstances:
(1) when the request is from a
mental health or developmental disability professional or from an employee or
trainee working with mentally disordered or developmentally disabled persons,
to the extent their practice, employment or training on behalf of the client
requires that they have access to such information;
(2) when such disclosure is
necessary to protect against a clear and substantial risk of imminent serious
physical injury or death inflicted by the client on himself or another;
(3) when the disclosure of such
information is to the primary caregiver of the client and the disclosure is
only of information necessary for the continuity of the client's treatment in
the judgment of the treating physician or certified psychologist who discloses
the information; or
(4) when such disclosure is to an
insurer contractually obligated to pay part or all of the expenses relating to
the treatment of the client at the residential facility. The information
disclosed shall be limited to data identifying the client, facility and
treating or supervising physician and the dates and duration of the residential
treatment. It shall not be a defense to an insurer's obligation to pay that the
information relating to the residential treatment of the client, apart from
information disclosed pursuant to this section, has not been disclosed to the
insurer.
C.
No authorization given for the transmission or disclosure of
confidential information shall be effective unless it:
(1) is in writing and signed;
and
(2) contains a statement of the
client's right to examine and copy the information to be disclosed, the name or
title of the proposed recipient of the information and a description of the use
that may be made of the information.
D.
The client has a right of access to confidential information about himself and has the right to make copies of any information
and to submit clarifying or correcting statements and other documentation of
reasonable length for inclusion with the confidential information. The
statements and other documentation shall be kept with the relevant confidential
information, shall accompany it in the event of disclosure and shall be
governed by the provisions of this section to the extent they contain confidential
information. Nothing in this subsection shall prohibit the denial of access to
such records when a physician or other mental health or developmental
disabilities professional believes and notes in the client's medical records
that such disclosure would not be in the best interests of the client. In any
such case, the client has the right to petition the court for an order granting
such access.
E.
Where there exists evidence that the client whose consent to disclosure
of confidential information is sought is incapable of giving or withholding
valid consent and the client does not have a guardian or treatment guardian
appointed by a court, the person seeking such authorization shall petition the
court for the appointment of a treatment guardian to make a substitute decision
for the client, except that if the client is less than fourteen years of age,
the client's parent or guardian is authorized to consent to disclosure on
behalf of the client.
F.
Information concerning a client disclosed under this section shall not
be released to any other person, agency or governmental entity or placed in
files or computerized data banks accessible to any persons not otherwise
authorized to obtain information under this section.
G.
Nothing in the code shall limit the confidentiality rights afforded by
federal statute or regulation.
43-1-20. Special
commissioner.
The court may conduct the proceedings required by this code,
or may, by general or special order, appoint a special
commissioner to do so. The special commissioner must be a licensed attorney.
Upon conclusion of the hearing the special commissioner shall file his findings
and recommendations with the court promptly.
43-1-21. Convalescent
status; rehospitalization.
A.
The head of a residential facility may release an improved involuntary
client on convalescent status when he believes that such release is in the best
interests of the client. Release on convalescent status shall include
provisions for continuing responsibility to and of the hospital. Prior to the
expiration of the client's commitment period, the director of the residential
facility shall re-examine the facts relating to the commitment of the client on
convalescent status and, if he determines that in view of the condition of the
client, commitment is no longer appropriate he shall discharge the client.
B.
Prior to such discharge, the director of the residential facility from
which the client is given convalescent status may at any time readmit the
client. If there is reason to believe that the client requires rehospitalization, the director of the residential facility
may issue an order for the immediate return of the client. Such an order, if
not voluntarily complied with, shall, upon order by a judge of the district
court of the county in which the client is resident or present, authorize any
health or police officer to take the client into custody and transport him to
the residential facility.
43-1-22.
Transportation.
Whenever a proposed patient is to be committed to a
residential mental health or developmental disability facility, or to be
returned to such a facility during commitment, the court ordering the
commitment or authorizing the return of the patient may direct the sheriff, the
state police or other appropriate persons to furnish suitable transportation in
order to effect such commitment or return, contacting the department for
directions as to the destination of the patient.
43-1-23. Violation of
clients' rights.
Any client who believes that his rights, as established by
this code or by the constitution of the
43-1-24. Appeals;
court of appeals.
Appeals taken pursuant to this code shall be taken to the
court of appeals according to the rules of appellate procedure of the supreme
court.
43-1-25. Cost of care.
Clients who are indigent may receive care and treatment at
state-operated facilities without charge. The governing authorities of such
facilities may require payment for the cost of care and treatment from all
others pursuant to established fee schedules based on ability to pay.
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