SENATE BILL 178
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
Howie Morales
AN ACT
RELATING TO BEHAVIORAL HEALTH; CLARIFYING RESPONSIBILITIES FOR THE INTERSTATE COMPACT ON MENTAL HEALTH AND CIVIL COMMITMENTS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 11-7-2 NMSA 1978 (being Laws 1969, Chapter 118, Section 2, as amended) is amended to read:
"11-7-2. COMPACT COORDINATOR--POWERS AND DUTIES.--Pursuant to the Interstate Compact on Mental Health, the [director of the behavioral health services division of the human services department] administrator of the New Mexico behavioral health institute is designated as the compact administrator and, acting jointly with like officers of other party states, shall promulgate rules and regulations to carry out more effectively the terms of the compact. The compact administrator is authorized, empowered and directed to cooperate with all departments, agencies and officers of and in the government of this state and its subdivisions in facilitating the proper administration of the compact or of any supplementary agreement entered into by this state under the compact."
Section 2. 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 [the division] 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 [which] 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 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] the client's behalf, including testimony by an independent mental health professional of [his] 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 [his] the 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] 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.
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] An interested person who reasonably believes that an adult is suffering from a mental disorder and presents a likelihood of serious harm to himself or herself or to 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] the applicant, but shall not be required to obtain a medical report or other particular evidence in order to make [such] a 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] the district attorney 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."
Section 3. Section 43-1-12 NMSA 1978 (being Laws 1977, Chapter 279, Section 11, as amended) is amended to read:
"43-1-12. EXTENDED COMMITMENT OF ADULTS.--
A. [The department] A 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] shall explain the necessity for extended commitment, specify the treatment [which] that 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] the client under Section [34-2A-10 NMSA 1953] 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 herself or to 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] A client involuntarily referred for treatment pursuant to this section shall be entitled to a reexamination of the order for [his] the client's involuntary referral for treatment on [his] the client's own petition, or that of [his] the client's legal guardian, parent, spouse, relative or friend, to the district court of the county in which [he] the client resides or is detained. Upon receipt of the petition, the court shall conduct a proceeding in accordance with this section, except that [such] a 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 [34-2A-13 NMSA 1953] 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."
Section 4. Section 43-1-13 NMSA 1978 (being Laws 1977, Chapter 279, Section 12, as amended) is amended to read:
"43-1-13. INVOLUNTARY COMMITMENT OF DEVELOPMENTALLY DISABLED ADULTS TO RESIDENTIAL CARE.--
A. A guardian appointed pursuant to the Uniform Probate Code may file an application with [the department or] an evaluation facility seeking residential habilitation services for [his] the guardian's 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] that 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 proposed client for a period of evaluation and treatment not to exceed fourteen days. An evaluation facility shall prepare an [individual] individualized habilitation plan [which] that 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 proposed client. Notice of the hearing scheduled on the petition and a copy of the habilitation plan shall be given to the client, [his] the client's attorney and [his] the client's 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] the proposed client's behalf, including testimony of a developmental disability professional of [his] the proposed client's 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] that creates an imminent likelihood of serious harm to himself or herself or to others, or the person is so greatly disabled that residential services would be in [his] the person's best interest and that such residential placement is, in [his] the person's 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] that 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] A client involuntarily referred for habilitation treatment shall be entitled to a reexamination of the order for [his] the client's involuntary referral for habilitation and treatment on [his] the client's own petition, or that of [his] the client's legal guardian, parent, spouse, relative or friend, to the district court of the county in which [he] the client 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] a 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."
- 10 -