HOUSE BILL 559
50th legislature - STATE OF NEW MEXICO - first session, 2011
INTRODUCED BY
Dennis J. Kintigh
AN ACT
RELATING TO BEHAVIORAL HEALTH; AMENDING A SECTION OF THE MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES CODE TO PROVIDE FOR FURTHER PROCEDURES AND CLIENT REPRESENTATION IN DETERMINATIONS OF WHETHER A PATIENT IS CAPABLE OF INFORMED CONSENT FOR BEHAVIORAL HEALTH TREATMENT AND FOR THE APPOINTMENT OF A TREATMENT GUARDIAN.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 43-1-15 NMSA 1978 (being Laws 1977, Chapter 279, Section 14, as amended) is amended to read:
"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 a 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, the client's 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 the client has been involuntarily committed to a treatment facility or is awaiting a hearing on whether the client 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, the mental health or developmental disabilities professional or physician or other interested person may petition the court for the appointment of a treatment guardian to make a substitute decision for the client.
[C. This original petition shall be served on the client and the client's 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.]
C. The sworn petition for appointment of a treatment guardian shall set forth:
(1) the name of the client;
(2) the client's date of birth;
(3) the client's primary place of residence, if known;
(4) a belief that the client suffers from a mental illness and the facts that form the basis for that belief;
(5) an acknowledgment that within ten days before the petition was filed, the client:
(a) was advised to seek appropriate voluntary mental health treatment that would restore the client's functions in order that the client could give informed consent; and
(b) refused voluntary mental health treatment;
(6) that the client is not capable of informed consent and the facts that form the basis for this belief;
(7) the name and business address of the client's treating mental health professional, if known and applicable;
(8) whether the client is in a treatment facility and, if so, the name and location of that facility; and
(9) the potential sources of payment for the client's treatment and evaluation.
D. The client shall be assigned an attorney by the court upon the filing of the petition. The department of health shall provide the attorney assigned to the client. A copy of the original petition, assignment of the client's attorney and notice of hearing shall be served on the client. If the client is not in a treatment facility, the office of the sheriff in the county of filing shall serve the client with the required documents. The court shall send a copy of the petition, assignment of the client's attorney and notice of hearing to the department of health via facsimile within one day of the filing of the petition. The court shall send a copy of the petition, assignment of the client's attorney and notice of hearing to the assigned client's attorney via facsimile within one day of the filing of the petition.
E. If the client is in a treatment facility at the time the petition is filed, a hearing on the petition shall be held within three court days of the filing date. If the client is not in a treatment facility when the petition is filed, a hearing on the petition shall be held within fifteen court days of the date of filing. 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.
F. If the person who filed a petition pursuant to this section is not a mental health or developmental disabilities professional or physician, within two days of the filing of a petition pursuant to this section the court shall order an evaluation of the client's capacity for informed consent and appoint a mental health or developmental disabilities professional or physician to perform the evaluation.
G. In order to obtain an evaluation of the client for a professional opinion, pursuant to Subsection F of this section, as to whether the client is capable of informed consent, the court shall order the department to provide a mental health or developmental disabilities professional or physician if:
(1) the person who filed a petition pursuant to this section is not a mental health or developmental disabilities professional or physician;
(2) the client has no treating mental health or developmental disabilities professional or physician or the client's mental health or developmental disabilities professional or physician is not available to testify as to the client's capacity for informed consent; and
(3) there are no funds or public or private third-party payor sources, including health insurance, available to the client to pay a mental health or developmental disabilities professional or physician to provide an opinion as to the client's capacity for informed consent.
H. If the court orders the department to provide a mental health or developmental disabilities professional or physician to evaluate the client and opine whether the client is capable of informed consent pursuant to Subsection G of this section and the department has no funds available to provide the evaluation, the court shall dismiss a petition filed pursuant to this section.
I. Within five days after the court, pursuant to Subsection F of this section, has issued an order for evaluation of a client and appointed a mental health or developmental disabilities professional or physician, the court shall inform the office of the sheriff in the county where the petition was filed of the time and place of the evaluation. The office of the sheriff shall serve a notice that indicates the time and place for the evaluation and that the court has the authority to issue an order allowing for the client to be transported by law enforcement to the evaluation. If the client fails to appear for or fully participate in the evaluation, the department shall petition the court for an ex parte order to compel the client to appear before the court. The court shall issue an ex parte order for the client to appear in court within five court days of the order's service upon the client. The time limits for the hearing to determine whether the client is capable of informed consent shall be tolled upon the filing of the ex parte order. The office of the sheriff shall serve the client with the ex parte order. At the hearing on the matter of the client's failure to comply with the court's order to be evaluated, the court shall explain the nature of the proceedings to the client and make a finding as to whether there is probable cause to believe that the client is not capable of making the client's own treatment decisions. Upon a finding of no probable cause, the court shall dismiss the petition for a hearing on the matter of the petition for appointment of a treatment guardian. Upon a finding of probable cause, the court shall order the client to be evaluated at the time and place that the mental health or developmental disabilities professional or physician appointed to perform the evaluation has designated and order the office of the sheriff to transport the client to the evaluation. The court shall also set a new date for the hearing on the matter of the petition for appointment of a treatment guardian that shall be held no more than ten days from the evaluation.
J. At the evaluation, the mental health or developmental disabilities professional or physician appointed to perform the evaluation shall ask the client what, if any, treatment the client is willing to accept or prefers and what decisions the client has found to have been effective in similar circumstances. This information shall be documented in the client's medical record.
K. If, after the client's evaluation, the mental health or developmental disabilities professional or physician appointed to perform the evaluation has found that the client is capable of informed consent, the evaluator shall inform the court. The court shall notify the petitioner that no probable cause has been found for the client's lack of capacity of informed consent and dismiss the petition.
[D.] L. When appointing a treatment guardian for an adult, the court shall give priority to a court-appointed guardian or, if no guardian has been appointed by a court, to an agent designated or nominated by the client when the client had capacity.
M. If, after notice, the client fails to appear at the hearing on the matter of the petition for appointment of a treatment guardian, the court may conduct the hearing in the client's absence.
N. The court shall not hold the client in contempt of court for failure to comply with a court order.
[E.] O. If after the hearing the court finds by clear convincing evidence that the client is not capable of making the client's own treatment decisions, the court may order the appointment of a treatment guardian.
[F.] P. 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 a decision, the treatment guardian shall consult with the client and consider the client's expressed opinions, if any, even if those opinions do not constitute valid consent or rejection of treatment. If the client is unavailable, the treatment guardian may rely upon preferences the client has expressed to a mental health or developmental disabilities professional or physician with whom the client had an opportunity to provide these preferences. The treatment guardian shall give consideration to:
(1) previous decisions made by the client in similar circumstances when the client was able to make treatment decisions; and
(2) the information contained in the client's valid advance directive.
[G.] Q. 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 a peace officer to take the client into custody and to transport the client to an evaluation facility and may authorize the facility forcibly to administer treatment.
[H.] R. The treatment guardian shall consult with the physician or other professional who is proposing treatment, the client's attorney and interested friends, relatives or other agents or guardians of the client to the extent reasonably practical in making a decision.
[I.] S. If the client, physician or other professional wishes to appeal the decision of the treatment guardian, the client, physician or other professional 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 treating mental health professional shall provide written notice of the treatment guardian's decision to the client. During an appeal of the treatment guardian's decision, the client shall be represented by counsel that the department provides. The court may overrule the treatment guardian's decision if it finds that decision to be against the best interest of the client.
T. The department shall provide funding to the office of guardianship that is sufficient to train treatment guardians.
[J.] U. When the court appoints a treatment guardian, it shall specify the length of time during which the treatment guardian may exercise the treatment guardian's powers, up to a maximum period of one year. The court's decision shall be based upon the recommendation of the client's treating mental health professional and the client's past history for recovery and compliance. If at the end of the guardianship period the treatment guardian believes that the client is still incapable of making the client's own treatment decisions, the treatment guardian shall petition the court for reappointment or for appointment of a new treatment guardian. The petition shall be served on the client, the client's attorney and the previously appointed treatment guardian if filed by another party. 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. The department or its designee shall present the state's case. The same procedures shall be followed for a petition on the extent of the treatment guardian's authority as though a new petition on the matter of a petition for appointment of a treatment guardian were being filed with the court.
[K.] V. 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 or another person believes that the client has regained competence to make the client's own treatment decisions, that person shall petition the court for a termination of the treatment guardianship. The department shall provide an attorney on the state's behalf to determine whether a hearing is necessary and shall contest the request that the client be relieved of a treatment guardian if the treating mental health professional has indicated a belief that the client is not capable of making treatment decisions. If the court finds the client is capable of making the client's own treatment decisions, it shall terminate the power of the treatment guardian and restore to the client the power to make the client's own treatment decisions.
[L.] W. 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 pursuant to provisions of Section 45-5-303 NMSA 1978. A 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.
[M.] X. If a licensed physician or a licensed psychologist with prescribing privileges pursuant to the New Mexico Drug, Device and Cosmetic Act believes that the administration of psychotropic medication is necessary to protect the client from serious harm that would occur while the provisions of [Subsection] Subsections B through L, O, P and Q of this section are being satisfied, the licensed physician 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.
Y. The department shall create a model petition, notice of hearing, appointment of the client's attorney, ex parte order, petition of noncompliance, forms for appealing proceedings to district court and any other necessary forms for implementing proceedings pursuant to this section. The department shall also create informational materials outlining the processes for clients, petitioners and district courts.
The department shall offer an annual training for department attorneys or designees, district court judges and court-appointed attorneys.
Z. A mental health professional administering treatment pursuant to this section shall create a treatment plan for the client within ten days of appointment.
AA. If a client fails to comply with a decision of the client's treatment guardian, the treatment guardian may file a request for an order to comply with the decision of the treatment guardian in the county where the client is located or where the client was last treated. A copy of the order appointing the treatment guardian shall be filed with the request for an order to comply with the decision of the treatment guardian.
BB. If a treatment guardian is appointed in one county and a treatment facility knows that the client will be leaving the original county for treatment in another county, the treatment facility where the client will receive treatment shall send a copy of the treatment plan created pursuant to Subsection Z of this section and a copy of the order appointing a treatment guardian to the mental health professional who will administer treatment to the client."
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