SENATE BILL 950
47th legislature - STATE OF NEW MEXICO - first session, 2005
INTRODUCED BY
Leonard Tsosie
AN ACT
RELATING TO COMMITMENT PROCEDURES; ENACTING THE DETOXIFICATION REFORM ACT; PROVIDING FOR PROTECTIVE CUSTODY AND COMMITMENT OF PERSONS IMPAIRED BY ALCOHOL OR DRUGS; ESTABLISHING REQUIREMENTS FOR DISCHARGE OF VOLUNTARY CLIENTS; LIMITING CIVIL LIABILITY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. A new section of Chapter 43, Article 2 NMSA 1978 is enacted to read:
"[NEW MATERIAL] SHORT TITLE.--Chapter 43, Article 2 NMSA 1978 may be cited as the "Detoxification Reform Act"."
Section 2. Section 43-2-2 NMSA 1978 (being Laws 1977, Chapter 374, Section 1, as amended) is amended to read:
"43-2-2. DEFINITIONS.--As used in [Sections 43-2-2 through 43-2-15 NMSA 1978] the Detoxification Reform Act:
A. ["alcoholic"] "alcohol-impaired person" means a person who [habitually lacks self-control as to the use of alcoholic beverages or] uses alcoholic beverages to the extent that [his] the person's health [is] and well-being are substantially impaired or endangered; [or his social or economic function is substantially disrupted;
B. "approved private treatment facility" means a private facility meeting the standards prescribed in regulations of the division for the care and treatment of alcoholics or drug-impaired persons;
C. "approved public treatment facility" means any institution under the supervision of the division and approved by the substance abuse bureau for the care and treatment of alcoholics or drug-impaired persons, or any public institution approved by the bureau for the care and treatment of alcoholics or drug-impaired persons; but not specifically under the supervision of the division;]
B. "authorized person" means a physician or police officer;
C. "consistent with the least drastic means principle" means that the habilitation, protective custody or treatment and the conditions of habilitation, protective custody or treatment separately and in combination:
(1) are no more harsh, hazardous or intrusive than necessary to achieve acceptable treatment objectives or protection for the person committed; and
(2) involve no restrictions on physical movement except as reasonably necessary for the administration of treatment, for the security of the facility or for the protection of the person committed or another from physical injury;
D. "department" means the [health and environment] department of health;
[E. "division" means the behavioral health services division of the health and environment department;
F.] E. "drug-impaired person" means a person who [habitually lacks self-control as to the use of drugs or] uses drugs to the extent that [his] the person's health [is] and well-being are substantially impaired or endangered; [or his social or economic function is substantially disrupted;
G.] F. "incapacitated [by alcohol or drugs] person" means [that] a person who, as a result of the use of alcohol or drugs, is unconscious or has [his] the person's judgment otherwise so impaired that [he] the person is incapable of realizing and making rational decisions;
[H.] G. "intoxicated person" means a person whose mental or physical functioning is substantially impaired as a result of the use of alcohol or drugs;
H. "likely to inflict serious physical harm on another" 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 that person;
I. "likely to inflict serious physical harm on himself" 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 passive or other self-destructive means as evidenced by behavior causing, attempting or threatening the infliction of serious bodily harm to himself;
J. "protective custody" means voluntary or involuntary confinement of an intoxicated person, for a period not less than twelve hours or more than seventy-two hours in length and under conditions consistent with the least drastic means principle;
[I.] K. "treatment" means the broad range of emergency, outpatient, intermediate and inpatient services and care, including protective custody, diagnostic evaluation, medical, psychiatric, psychological and social service care, vocational rehabilitation and career counseling, which may be extended to [alcoholics] alcohol-impaired, drug-impaired and intoxicated persons; and
[J. "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 such client;
(2) involve no restrictions on physical movement and require no residential care except as reasonably necessary for the administration of treatment or for the protection of such client or another from physical injury; and
(3) are conducted at the suitable available facility closest to the client's place of residence;
K. "likely to inflict serious physical harm on himself" 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 passive or other self-destructive means as evidenced by behavior causing, attempting or threatening the infliction of serious bodily harm to himself; and
L. "likely to inflict serious physical harm on another" 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 that person]
L. "treatment facility" means:
(1) an institution under the supervision of the department and approved by the department for the care and treatment of alcohol-impaired persons or drug-impaired persons;
(2) a public institution approved by the department for the care and treatment of alcohol-impaired persons or drug-impaired persons, but not specifically under the supervision of the department;
(3) a detention center providing protective custody; or
(4) any other facility that provides any of the services specified in the Detoxification Reform Act and is licensed by the department for those services."
Section 3. Section 43-2-3 NMSA 1978 (being Laws 1989, Chapter 378, Section 4) is amended to read:
"43-2-3. POLICY OF STATE REGARDING [ALCOHOLISM] SUBSTANCE ABUSE.--It is the policy of this state that [alcoholics and] intoxicated and incapacitated persons may not be subjected to criminal prosecution [because of their consumption of alcoholic beverages], but rather should be afforded protection. It is further the policy of this state that alcohol-impaired persons and drug-impaired persons should be afforded a continuum of treatment in order that they may lead normal lives as productive members of society."
Section 4. Section 43-2-5 NMSA 1978 (being Laws 1949, Chapter 114, Section 3, as amended) is amended to read:
"43-2-5. DUTIES OF [SUBSTANCE ABUSE BUREAU] THE DEPARTMENT.--The [substance abuse bureau of the division] department shall study the problem of alcoholism and drug abuse, including methods and facilities available for the care, custody, detention, treatment, employment and rehabilitation of persons addicted to the intemperate use of spirituous or intoxicating liquors or drugs. The [bureau] department shall promote meetings for the discussion of problems confronting treatment facilities, clinics and agencies engaged in [the] protective custody, treatment and rehabilitation of [alcoholics] alcohol-impaired persons and drug-impaired persons and shall disseminate information on the subject of alcoholism and drug abuse for the assistance and guidance of residents and courts of the state. [The bureau shall suggest to the division reasonable regulations respecting the care and treatment of patients and persons committed to state institutions by reason of alcoholism or impairment due to drugs being a primary or contributory factor to the cause for such commitment, and the division with the approval of the secretary of health, and environment] The department shall make such reasonable [regulations] rules respecting the care and treatment of [patients and] persons committed to [the bureau's care and the management of the bureau's affairs] a treatment facility as it deems necessary, [The health and environment department shall adopt and may amend and repeal rules and regulations for acceptance of persons into treatment programs, considering available treatment resources and facilities, for the purpose of early and effective treatment of alcoholics, intoxicated persons and persons impaired by drugs] including such rules it deems appropriate for minors. In establishing the rules [and regulations] with respect to persons committed pursuant to Section 43-2-9 NMSA 1978, the [division] department shall be guided by the following standards:
A. if possible, a [patient] person shall be treated on a voluntary rather than an involuntary basis;
B. a [patient] person shall be initially assigned or transferred to outpatient or intermediate treatment, unless [he] the person is found to require inpatient treatment;
C. a person shall not be denied treatment solely because [he] the person has withdrawn from treatment against medical advice on a prior occasion or because [he] the person has relapsed after earlier treatment;
D. an individual treatment plan shall be prepared and maintained on a current basis for each [patient] person; and
E. provisions shall be made for a continuum of coordinated treatment services, so that a person who leaves a facility or a form of treatment will have available and utilize other appropriate treatment."
Section 5. Section 43-2-8 NMSA 1978 (being Laws 1977, Chapter 374, Section 5, as amended) is amended to read:
"43-2-8. [EMERGENCY COMMITMENT] PROTECTIVE CUSTODY.--
A. An intoxicated or [drug-impaired] incapacitated person may be committed to [an approved public or private] a treatment facility at the request of an authorized person for [emergency treatment] protective custody, if [he] the authorized person has probable cause to believe that the person to be committed:
(1) is disorderly in a public place;
(2) is unable to care for the person's own safety;
[(1)] (3) has threatened, attempted or inflicted physical harm on himself or another;
(4) has threatened, attempted or inflicted damage to the property of another;
[(2)] (5) is likely to inflict serious physical harm on himself;
[(3)] (6) is likely to inflict serious physical harm on another [unless committed]; or
[(4)] (7) is incapacitated by alcohol or drugs. [or
(5) has been taken into protective custody three or more times within thirty consecutive days by a peace officer or public service officer because of his intoxicated or drug-impaired condition as provided for in Subsection C of Section 43-2-18 NMSA 1978, provided there is space available in a treatment facility for that person.]
A refusal to undergo treatment does not constitute conclusive evidence of lack of judgment as to the need for treatment.
B. [The certifying physician, spouse, guardian or relative of the person to be committed or any other responsible person, including a public employee or elected official, may] An authorized person shall make a written application for commitment under this section, directed to the [administrator] administration of the [approved public] treatment facility [or the district attorney where the proposed patient is in residence or is present who shall direct the application to the administrator of an approved public or private treatment facility]. The application shall state facts [to] in support of the need for [emergency treatment consistent with the least drastic means principle, and, unless a medical examination has been refused, shall be accompanied by a physician's certificate, except as provided in this section, stating that he has examined the person sought to be committed within two days before the certificate's date and facts supporting the need for emergency treatment. A physician employed by the admitting facility or the division is not eligible to be the certifying physician. A peace officer or public service officer submitting an application for emergency commitment pursuant to Paragraph (5) of Subsection A of this section shall not be required to present with the application a physician's certificate or evidence of refusal of medical examination, but shall certify three or more dates from the record of protective custody maintained as required by Subsection D of Section 43-2-22 NMSA 1978 on which the intoxicated or drug-impaired person was placed in protective custody, which dates are within the thirty days preceding the date upon which the application is submitted] protective custody.
C. Upon approval of the form of the application by the [administrator] administration in charge of the [approved public or private] treatment facility, the person shall be [brought to the facility by the applicant for commitment the person's spouse, the person's guardian, any other interested person or by a peace officer if the applicant for commitment, the person's spouse, the person's guardian or any other interested person is unable to bring the person to the facility or by a peace officer or public service officer if the application for commitment was submitted pursuant to Paragraph (5) of Subsection A of this section. The person shall be] retained at the facility to which [he] the person was admitted or transferred to another appropriate [public or private] treatment facility until discharged under Subsection E of this section.
D. The [administrator] administration in charge of [an approved public or private] a treatment facility [shall] may refuse an application if [in his opinion the application and certificate fail to sustain the grounds for commitment] the treatment facility is at its relevant capacity or if the person to be committed is deemed too ill, injured, disruptive or dangerous to himself or another to be managed at the treatment facility.
E. [When on the advice of the medical staff the administrator determines that the grounds for commitment no longer exist, he shall discharge a person committed under this section. No person committed under this section may be detained in any treatment facility for more than five days.] An intoxicated person transported to a treatment facility pursuant to this subsection shall not be detained at the facility:
(1) once the person's blood or breath alcohol concentration level is zero, if alcohol-impaired, and there is no probable cause to believe the person remains at risk of physical harm to himself or another; or
(2) for more than seventy-two hours after admission, absent pendency of a petition filed pursuant to Section 43-2-9 NMSA 1978.
F. An intoxicated person held in protective custody pursuant to the Detoxification Reform Act shall not be considered to have been arrested or charged with any crime.
G. A record of protective custody shall not be considered as an arrest or criminal record.
H. If a petition for involuntary commitment under Section 43-2-9 NMSA 1978 has been filed within [the five days and] seventy-two hours of the admission of the person, the [administrator] administration in charge of [an approved public or private] a treatment facility [finds that grounds for emergency commitment still exist, he may] shall detain the person until the petition has been heard and determined, but no longer than ten days after filing the petition.
[F.] I. A copy of the written application for commitment and [the physician's certificate and] a written explanation of the person's right to contact counsel shall be given by the administration to the person [and to the district attorney within twelve hours] as soon as practicable after commitment [by the administrator, who]. The administration shall also provide a reasonable opportunity for the person to [consult] contact counsel.
J. A person committed to protective custody under this section may at any time seek to be discharged from commitment by writ of habeas corpus. The venue for proceedings under this section is the district court for the county in which the person to be committed resides or is present."
Section 6. Section 43-2-9 NMSA 1978 (being Laws 1977, Chapter 374, Section 6, as amended) is amended to read:
"43-2-9. COMMITMENT--HEARING.--
A. A person may be committed to the custody of [the substance abuse bureau of the division or to an approved licensed private] a treatment facility by the district court upon the petition of the district attorney on behalf of the person's spouse, guardian or relative or the certifying physician [or the administrator in charge of any approved public or private treatment facility]. The petition shall allege that the person is [an alcoholic] alcohol-impaired or [drug impaired] drug-impaired and habitually lacks self-control as to the use of alcoholic beverages or drugs and that [he] the person has threatened, attempted or inflicted physical harm on himself or another and that unless committed is likely to inflict physical harm on himself or another or that [he] the person is incapacitated by alcohol or drugs. A refusal to undergo treatment does not constitute evidence of lack of judgment as to the need for treatment. The petition shall be accompanied by a certificate of a licensed physician who has examined the person within two days before submission of the petition, unless the person whose commitment is sought has refused to submit to a medical examination, in which case the fact of refusal shall be alleged in the petition. The certificate shall set forth the physician's findings in support of the allegations of the petition.
B. Upon filing the petition, the court shall fix a date for a hearing no later than ten days after the date the petition was filed. The person whose commitment is sought shall be represented by counsel at all stages of the proceeding regardless of [his] the person's wishes. The court shall appoint counsel if the person whose commitment is sought is indigent. A copy of the petition and notice of hearing, including the date fixed by the court and appointed counsel, shall be served on the petitioner, the person whose commitment is sought, a parent or a [legal] guardian if [he] the person is a minor, the [administrator] administration in charge of [an approved public or private] a treatment facility to which [he] the person has been committed for [emergency care] protective custody and any other person the court believes advisable. Also to be served upon the person whose commitment is sought is an advice of rights informing the person that [he] the person has a right to be examined by a licensed physician of [his] the person's choice prior to the hearing date. If the person is unable to obtain a licensed physician and requests examination by a physician within five days of service of the petition, the court shall employ a licensed physician. If the person whose commitment is sought refuses to see a licensed physician and the prosecuting attorney believes that such examination is necessary, the prosecuting attorney upon motion may ask the court to grant leave for an examination to be ordered against the person whose commitment is sought. Cost for the examination shall be borne by the county in which the person resides if [he] the person is indigent. Upon the court granting such motion, the court may issue an order to the person informing him that he shall be examined by a licensed physician at the date, time and place stated in the order, and the hearing shall be continued for a period not to exceed seven days.
C. At the hearing, the court shall hear all relevant testimony, including, if possible, the testimony of at least one licensed physician who has examined the person whose commitment is sought. The person shall be present unless the court or [his] the person's counsel believes that [his] the person's presence is likely to be injurious to [him] the person or [he] the person is so incapacitated that [he] the person cannot understand the nature of the proceeding. The person shall at all times be represented by counsel. The court shall examine the person in open court or, if advisable, shall examine the person out of court. If the person has failed to appear at a court-ordered examination prior to the hearing and there is sufficient evidence to believe that the allegations of the petition are true or if the court believes that more medical evidence is necessary, the court may make a temporary order committing [him] the person to [the substance abuse bureau or an approved licensed private] a treatment facility for a period of not more than five days for the purposes of diagnostic examination.
D. If after hearing all relevant evidence, including the results of any diagnostic examination by [the substance abuse bureau or an approved licensed private] a treatment facility, the court finds that grounds for involuntary commitment have been established by clear and convincing proof, it shall make an order of commitment to [the substance abuse bureau or to an approved licensed private] a treatment facility. It shall not order commitment of a person unless it determines that the appropriate treatment for [him] the person is available and the treatment is likely to be beneficial.
E. A person committed under this section shall remain in the custody of [the substance abuse bureau or an approved licensed private] a treatment facility for treatment for a period of thirty days unless sooner discharged. At the end of the thirty-day period, [he] the person shall be discharged automatically unless [the substance abuse bureau or an approved licensed private treatment facility], before the expiration of the period, [obtains] a court order is obtained for [his] the person's recommitment upon the grounds set forth in Subsection A of this section for a period of ninety days unless sooner discharged. [If a person has been committed because he is likely to inflict physical harm on another, the substance abuse bureau or an approved licensed private treatment facility shall apply for recommitment if after examination it is determined that the likelihood still exists].
F. A person recommitted under Subsection E of this section who has not been discharged by [the substance abuse bureau or an approved licensed private] a treatment facility before the end of the ninety-day period shall be discharged at the expiration of that period unless the [substance abuse bureau or an approved licensed private] administration of a treatment facility, before the expiration of the period, obtains a court order on the grounds set forth in Subsection A of this section for recommitment for a further period not to exceed ninety days. [If a person has been committed because he is likely to inflict physical harm on another, the substance abuse bureau or an approved licensed private treatment facility shall apply for recommitment if after examination it is determined that the likelihood still exists.] Only two recommitment orders under Subsections E and F of this section are permitted.
G. Upon the filing of a petition for recommitment under Subsection E or F of this section, the court shall fix a date for hearing no later than ten days after the date the petition was filed. A copy of the petition and of the notice of hearing, including the date fixed by the court, shall be served on the petitioner, the person whose commitment is sought, [his] the person's next of kin other than the petitioner, the original petitioner under Subsection A of this section, if different from the petitioner for recommitment, one of [his] the person's parents or [his legal] the person's guardian if [he] the person is a minor, the administration of the treatment facility to which the person has been committed and any other person the court believes advisable. At the hearing, the court shall proceed as provided in Subsection C of this section.
H. [The substance abuse bureau or an approved licensed private] A treatment facility shall provide for adequate and appropriate treatment of a person committed to its custody. [The substance abuse bureau or an approved licensed private] A treatment facility may transfer any person committed to its custody from one [approved public] treatment facility to another only if transfer is medically advisable or if the person's parent, spouse, sibling, adult child or guardian requests transfer and the administration of the second treatment facility consents.
I. A person committed to the custody of [the substance abuse bureau or an approved licensed private] a treatment facility for treatment shall be discharged at any time before the end of the period for which [he] the person has been committed if either of the following conditions is met:
(1) in case of an [alcoholic] alcohol-impaired person or drug-impaired person committed on the grounds of likelihood of infliction of physical harm upon another, that [he] the person is no longer [an alcoholic] impaired by alcohol or impaired by drugs or the likelihood no longer exists; or
(2) in case of [an alcoholic or] a person impaired by alcohol or drugs committed on the grounds of the need for treatment and incapacity, that the incapacity no longer exists, further treatment will not be likely to bring about significant improvement in the person's condition or treatment is no longer adequate or appropriate.
[J. If an approved private treatment facility agrees with the request of a patient or his parent, spouse, sibling, adult child or guardian to accept the patient for treatment, the administrator of the public treatment facility shall transfer him to the private treatment facility.
K.] J. A person committed under this section may at any time seek to be discharged from commitment by writ of habeas corpus.
[L.] K. The venue for proceedings under this section is the district court for the county in which the person to be committed resides or is present."
Section 7. Section 43-2-10 NMSA 1978 (being Laws 1949, Chapter 114, Section 8, as amended) is amended to read:
"43-2-10. PROBATION--DISCHARGE.--Any person committed to the custody of [the substance abuse bureau or an approved licensed private] a treatment facility of the [division under] department pursuant to Section 43-2-9 NMSA 1978 [may, notwithstanding the terms of any order of commitment] shall be permitted to go at large on probation and without custody or restraint for such time and under such conditions as [the chief of the substance abuse bureau or an approved licensed private treatment facility judges best. Persons placed in custody under any provision of Sections 43-2-2 through 43-2-15 NMSA 1978 may be discharged by the chief of the substance abuse bureau or an approved licensed private treatment facility pursuant to division regulations] may be established by court order."
Section 8. Section 43-2-11 NMSA 1978 (being Laws 1949, Chapter 114, Section 9, as amended) is amended to read:
"43-2-11. VOLUNTARY [PATIENTS] CLIENTS.--
A. [Upon the recommendation of the chief of the substance abuse bureau of the division] The [administrator] administration of [any approved public] a treatment facility [shall] may receive any [alcoholic] intoxicated person, alcohol-impaired person or drug-impaired person who applies to be received as a client into the facility [treat him in the same manner as if committed by the district court and release him pursuant to the rules and regulations of the division]. If the voluntary client is:
(1) intoxicated, the client shall be discharged pursuant to Subsection E of Section 43-2-8 NMSA 1978; or
(2) not intoxicated, the client shall be discharged at the request of the client or, in the absence of such a request, at the discretion of the administration.
B. If a voluntary [patient] client leaves [an approved public] a treatment facility with or against the advice of the [administrator in charge of the facility] administration in charge of the facility, the [division] department shall make reasonable provisions for [his] the client's transportation to another facility or to [his] the client's home. [If he has no home, he shall be assisted in obtaining shelter.]
C. [Any] A resident of the state who voluntarily submits himself for treatment in accordance with [Sections 43-2-2 through 43-2-15 NMSA 1978] the Detoxification Reform Act shall not forfeit or abridge thereby any of [his] the resident's rights as a citizen of the state. The fact that [he] the resident has submitted himself for treatment or that [he] the resident has been given help or guidance shall not be used against [him] the resident in any proceeding in any court. The record of [any such] the voluntary [patient] client shall be confidential and shall not be divulged except on order of the court or upon receipt of a waiver and release duly executed by the client."
Section 9. Section 43-2-19 NMSA 1978 (being Laws 1973, Chapter 331, Section 4) is amended to read:
"43-2-19. [SEARCH BY] PEACE OFFICER OR PUBLIC SERVICE OFFICER--NO LIABILITY.--
A. A peace officer or public service officer may, if [he] the officer reasonably believes it necessary for [his] the officer's own safety, make a protective search of an intoxicated person before transporting [him] the person to a residence, [health care] treatment facility or jail. [No peace officer or public service officer]
B. A peace officer or public service officer shall not be held [criminally or] civilly liable for assault, false imprisonment or other alleged torts or crimes on account of reasonable measures taken under the authority of the Detoxification Reform Act, if such measures were, in fact, reasonable and did not involve use of excessive or unnecessary force."
Section 10. Section 43-2-20 NMSA 1978 (being Laws 1973, Chapter 331, Section 5) is amended to read:
"43-2-20. NOTIFICATION OF FAMILY.--Whenever an intoxicated person is [transported by a peace officer or public service officer to a health care facility or jail] committed to protective custody, the [person] administration in charge of [that] the treatment facility [or jail at the time] shall [see that a responsible] provide the person an opportunity to contact a member of the intoxicated person's family [is notified of his presence there] as soon as practicable."
Section 11. Section 43-2-21 NMSA 1978 (being Laws 1973, Chapter 331, Section 6) is amended to read:
"43-2-21. LIABILITY FOR COSTS.--Any intoxicated person having transportation, shelter or treatment furnished to [him] the person as an intoxicated person under the Detoxification Reform Act shall be liable to the furnishing city, county or [health care or other] treatment facility for its reasonable costs in providing that transportation, shelter [and] or treatment."
Section 12. A new section of Chapter 43, Article 2 NMSA 1978 is enacted to read:
"[NEW MATERIAL] CIVIL LIABILITY.--Physicians and treatment facilities and their officers, directors and employees shall not be liable to any person held on account of reasonable measures taken under the authority of the Detoxification Reform Act, absent proof of negligence or intentional misconduct."
Section 13. REPEAL.--Sections 43-2-16 through 43-2-18 and Section 43-2-22 NMSA 1978 (being Laws 1973, Chapter 331, Sections 1 through 3 and 7, as amended) are repealed.
Section 14. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2005.
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