HOUSE BILL 497

50th legislature - STATE OF NEW MEXICO - first session, 2011

INTRODUCED BY

Dennis J. Kintigh

AN ACT

RELATING TO INVOLUNTARY CIVIL COMMITMENT OF ADULTS; AMENDING A SECTION OF THE MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES CODE TO ALLOW THE DISTRICT ATTORNEY TO FILE A PETITION IN CRIMINAL PROSECUTION PROCEEDINGS INVOLVING A DEFENDANT WHOSE CASE HAS BEEN DISMISSED UPON A FINDING OF INCOMPETENCY OR COGNITIVE DISABILITY; PROVIDING THE DEPARTMENT OF HEALTH AND THE AGING AND LONG-TERM SERVICES DEPARTMENT, IN LIEU OF THE DISTRICT ATTORNEY, WITH INVESTIGATIVE POWERS AND THE POWER TO PETITION FOR A CIVIL COMMITMENT HEARING IN MATTERS INVOLVING AN ADULT'S INVOLUNTARY COMMITMENT FOR EVALUATION AND TREATMENT.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 43-1-11 NMSA 1978 (being Laws 1977, Chapter 279, Section 10, as amended) is amended to read:

     "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 a 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 that 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, the client's guardian, and treatment guardian if one has been appointed, 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 the client's behalf, including testimony by an independent mental health professional of the client's 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 the right to be present. A complete record of all proceedings shall be made.

         C. A court-appointed guardian for an adult involved in an involuntary commitment proceeding shall have automatic standing to appear at all stages of the proceeding and shall be allowed to testify by telephone or through affidavit if circumstances make live testimony too burdensome.

         D. The court shall include in its findings the guardian's opinion regarding the need for involuntary treatment or a statement detailing the efforts made to ascertain the guardian's opinion.

         E. 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 the client's own self 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.

         F. Once the court has made the findings set forth in Subsection E 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.

         G. An interested person who reasonably believes that an adult is suffering from a mental disorder and presents a likelihood of serious harm to the adult's own self or others, but does not require emergency care, may request [the district attorney] an investigating department 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] investigating department any medical reports or other evidence immediately available to the applicant, but shall not be required to obtain a medical report or other particular evidence in order to make a petition. The [district attorney] investigating department shall act on the petition within seventy-two hours. If the [district attorney] investigating department determines that reasonable grounds exist to commit the adult, the [district attorney] investigating department may petition the court for a hearing. If the adult was a defendant in a criminal prosecution, the district attorney may file a petition for commitment pursuant to this subsection and appear on behalf of the state in connection with those proceedings. 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.

         H. Any hearing provided for pursuant to Subsection G of this section shall be conducted in conformance with the requirements of Subsection B of this section.

         I. As used in this section, "investigating department" means either the department of health or the aging and long-term services department."

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