HB0215

HOUSE BILL 215

54th legislature - STATE OF NEW MEXICO - second session, 2020

INTRODUCED BY

James R.J. Strickler and Mary Kay Papen

AN ACT

RELATING TO BEHAVIORAL HEALTH; AMENDING SECTIONS OF THE MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES CODE TO PROVIDE FOR THE DETENTION AND TRANSPORT OF CERTAIN PERSONS FOR EMERGENCY MENTAL HEALTH EVALUATION AND TREATMENT AND TO ALLOW ENTRY INTO STRUCTURES IN CERTAIN CIRCUMSTANCES TO PROVIDE TRANSPORT OF PERSONS FOR EVALUATION AND CARE; PROVIDING PENALTIES.

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

SECTION 1. Section 43-1-3 NMSA 1978 (being Laws 1977, Chapter 279, Section 2, as amended) is amended to read:

"43-1-3. DEFINITIONS.--As used in the Mental Health and Developmental Disabilities Code:

A. "admitting professional" means a physician or a psychologist who has been granted admitting privileges at a hospital licensed by the department of health, if such privileges are required, or at an evaluation facility;

B. "authorized professional" means a:

(1) physician;

(2) psychologist;

(3) nurse having the authority to prescribe psychotropic medication;

(4) qualified mental health professional who is affiliated with a community mental health center or core service agency; or

(5) peace officer;

[A.] C. "aversive stimuli" means anything that, because it is believed to be unreasonably unpleasant, uncomfortable or distasteful to [the] a 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 the client's self or [others] another or psychotropic medications that are not used for purposes of punishment;

[B.] D. "client" means [any patient] a person who:

(1) is requesting or receiving or who may be in need of mental health services; [or any person]

(2) is requesting or receiving or who may be in need of developmental disabilities services; [or who]

(3) is present in a mental health [or developmental disabilities] facility for the purpose of receiving [such] mental health services; [or who]

(4) has been placed in a mental health [or developmental disabilities] facility by the person's parent or guardian or [by any] pursuant to a court order;

(5) is the subject of an application for an emergency order pursuant to Section 43-1-10 NMSA 1978; or

(6) is detained and transported, or sought to be detained and transported, for emergency mental health evaluation and treatment pursuant to Section 43-1-10 NMSA 1978;

[C.] E. "code" means the Mental Health and Developmental Disabilities Code;

[D.] F. "consistent with the least drastic means principle" means that the habilitation or treatment and the conditions of habilitation or treatment for [the] a 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.] G. "convulsive treatment" means any form of mental health treatment that depends upon creation of a convulsion by any means, including [but not limited to] electroconvulsive treatment and insulin coma treatment;

[F.] H. "court" means a district court of New Mexico;

I. "crisis intervention" means the provision of assistance:

(1) using de-escalation management techniques to prevent harm in a situation involving a person who appears to have a mental disorder and who may be in distress; and

(2) by a peace officer or a team of individuals, which peace officer or team is trained in de-escalation management techniques;

[G.] J. "department" or "division" means the behavioral health services division of the human services department;

K. "developmental disabilities professional" means a physician or other professional who by training or experience is qualified to work with persons with a developmental disability;

[H.] L. "developmental disability" means a disability of a person that is attributable to mental retardation, cerebral palsy, autism or neurological dysfunction that requires treatment or habilitation similar to that provided to persons with mental retardation;

[I.] M. "evaluation facility" means a community mental health or developmental disability program or a medical facility that:

(1) has psychiatric or developmental disability services available, including the New Mexico behavioral health institute at Las Vegas, the Los Lunas medical center or, if none of the foregoing is reasonably available or appropriate, the office of a physician or a [certified] psychologist; and [that]

(2) is capable of performing a mental status examination adequate to determine the need for involuntary treatment;

[J.] N. "experimental treatment" means any mental health or developmental disabilities treatment that 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.] O. "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.] P. "habilitation" means the process by which professional persons and their staff assist a client with a developmental disability in acquiring and maintaining those skills and behaviors that enable the [person] client to cope more effectively with the demands of the [person's] client's self and environment and to raise the level of the [person's] client's 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 the person's self by violent or other self-destructive means, including grave passive neglect;

N. "likelihood of serious harm to others" means that it is more likely than not that in the near future a 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;]

Q. "likelihood of serious harm to another" means that it is more likely than not that in the near future a client will inflict serious, unjustified bodily harm on another person or commit a criminal sexual offense, as evidenced by behavior causing, attempting or threatening serious harm, which behavior gives rise to a reasonable fear of serious harm from the client;

R. "likelihood of serious harm to the client's self" means that it is more likely than not that in the near future a client will attempt to commit suicide or will cause serious bodily harm to the client's self by violent or other self-destructive means, including grave passive neglect;

[O.] S. "mental disorder" means substantial disorder of a person's emotional processes, thought or cognition that grossly impairs judgment, behavior or capacity to recognize reality, but does not mean developmental disability;

[P.] T. "mental health [or developmental disabilities] professional" means a physician or other licensed professional who by training or experience is qualified to work with [persons] clients with a mental disorder; [or a developmental disability;

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.] U. "protected health information" means individually identifiable health information transmitted by or maintained in an electronic form or any other form or media that relates to the:

(1) past, present or future physical or mental health or condition of [an individual] a person;

(2) provision of health care to [an individual] a person; or

(3) payment for the provision of health care to [an individual] a person;

[S.] V. "psychosurgery":

(1) 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:

(a) modification or control of thoughts, feelings, actions or behavior rather than the treatment of a known and diagnosed physical disease of the brain;

(b) treatment of abnormal brain function or normal brain tissue in order to control thoughts, feelings, actions or behavior; or

(c) 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; and

(2) does not include prefrontal sonic treatment in which there is no destruction of brain tissue;

[T.] W. "qualified mental health professional" [licensed for independent practice] means any of the following professionals who are licensed for independent practice and who by training and experience are qualified to work with clients with a mental disorder:

(1) an independent social worker;

(2) a licensed professional clinical mental health counselor;

(3) a marriage and family therapist;

(4) a certified nurse practitioner; or

(5) a clinical nurse specialist with a specialty in mental health; [all of whom by training and experience are qualified to work with persons with a mental disorder;

U.] X. "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] a client resides on the premises; [and]

Y. "structure" means an interior or exterior enclosed space, including a building, whether any part of it is used for temporary or permanent human habitation, a vehicle, a boat or other space where a client may reasonably be found; and

[V.] Z. "treatment" means any effort to accomplish a significant change in the mental or emotional condition or behavior of [the] a client."

SECTION 2. Section 43-1-10 NMSA 1978 (being Laws 1977, Chapter 279, Section 9, as amended) is amended to read:

"43-1-10. EMERGENCY DETENTION AND TRANSPORT FOR MENTAL HEALTH EVALUATION AND [CARE] TREATMENT--EMERGENCY ORDER.--

A. A peace officer may detain and transport a client for emergency mental health evaluation and treatment:

(1) pursuant to an emergency order issued in accordance with the provisions of Subsection B of this section; or

(2) in the absence of an emergency order, in accordance with the provisions of Subsection P of this section.

B. To obtain an emergency order, an applicant with knowledge of the facts that support the application for an emergency order shall apply to a court through a peace officer or, if a peace officer is the applicant, by the peace officer after a peace officer's investigation, setting forth the following in the application for an emergency order, if known:

(1) the name and date of birth of the client to be evaluated; the client's phone number; a description of the client's physical appearance; the address, location or structure where the client may be located; and the approximate length of time during which the client has been at that address, location or structure;

(2) the specific underlying facts, including a salient summary, if known, of the client's prior mental health diagnosis and treatment and information relating to the place where the client was last treated, that constitute or support reasonable grounds to believe that:

(a) the client is otherwise subject to lawful arrest;

(b) the client has just attempted suicide;

(c) the client, as a result of a mental disorder, presents a likelihood of serious harm to the client's self or a likelihood of serious harm to another and that immediate detention and transport are necessary to prevent serious harm;

(d) an emergency exists; and

(e) the client may be located in a specified structure;

(3) a risk assessment, based on known facts, that details:

(a) the client's access to weapons;

(b) statements or conduct that suggest that the client will commit a violent or dangerous act;

(d) the client's inability to communicate effectively; and

(e) the client's delusions, flashbacks, hallucinations or other disability impairing the client's ability to understand;

(4) the following information:

(a) what attempts have been made to convince the client to consent to detention, transport and an emergency mental health evaluation and treatment;

(b) whether the client has experienced a divorce or legal separation, a pending divorce or legal separation or child custody dispute with an applicant who is not an authorized professional or with a person who seeks an application for an emergency order through an authorized professional, a family member or an acquaintance of the applicant;

(d) the last time that the client was known to have had contact with another person and any observation of the client's behavior and demeanor during that contact;

(5) a summary of facts and findings, including the time and place, of the peace officer's investigation and the peace officer's determination of whether:

(a) the client is otherwise subject to lawful arrest;

(b) reasonable grounds exist to believe that the client has just attempted suicide;

(c) reasonable grounds exist to believe that the client, as a result of a mental disorder, presents a likelihood of serious harm to the client's self or a likelihood of serious harm to another and that immediate detention and transport are necessary to prevent serious harm;

(d) reasonable grounds exist to believe that an emergency exists; and

(e) reasonable grounds exist to believe that the client may be located in a specified structure; and

(6) the signature of the applicant and an indication of the applicant's relationship to the client.

C. If the applicant is unaware of facts that are to be submitted, the applicant shall indicate that the applicant has no knowledge of those facts.

D. The following individuals shall sign an application for an emergency order in the following manner:

(1) an applicant who is not an authorized professional shall sign in the presence of a peace officer, and the peace officer shall sign as a witness to the signing of the application for an emergency order;

(2) an applicant who is an authorized professional who is not a peace officer shall sign the application for an emergency order without a witness and deliver the application for an emergency order to the peace officer; and

(3) an applicant who is a peace officer shall sign the application for an emergency order without a witness and deliver the application for an emergency order to the court.

E. When an authorized professional signs an application for an emergency order, the authorized professional shall designate the evaluation facility where the client shall be transported if the emergency order is granted. If acting in good faith, the authorized professional shall not be subject to civil liability for actions arising from issuing or failing to issue a certificate for evaluation or application for an emergency order. If, forty-eight hours prior to the presentment to a peace officer of the application for an emergency order, a peace officer conducted an investigation and did not detain and transport the client in accordance with Subsection P of this section, a peace officer need not conduct a second investigation before delivering the application for an emergency order to the court. If a certificate for evaluation has been issued, the certificate shall be presented to the court. A new investigation shall be conducted by a peace officer if one was not conducted within forty-eight hours prior to the presentment to a peace officer. The peace officer shall notify the court in writing when presenting the application for an emergency order whether:

(1) the client is otherwise subject to lawful arrest;

(2) reasonable grounds exist to believe that the client has just attempted suicide;

(3) reasonable grounds exist to believe that the client, as a result of a mental disorder, presents a likelihood of serious harm to the client's self or a likelihood of serious harm to another and immediate detention and transport are necessary to prevent serious harm;

(4) reasonable grounds exist to believe that an emergency exists; or

(5) reasonable grounds exist to believe that the client may be located in a specific structure.

F. Prior to delivering an application for an emergency order from an authorized professional to the court, a peace officer shall conduct an investigation without unnecessary delay for the purpose of detaining and transporting a client to an evaluation facility in accordance with Subsection P of this section. Prior to delivering an application for an emergency order to the court from an individual who is not an authorized professional, a peace officer shall conduct without unnecessary delay an investigation and may detain and transport a client in accordance with Subsection P of this section to determine whether:

(1) the client is otherwise subject to lawful arrest;

(2) reasonable grounds exist to believe that the client has just attempted suicide;

(4) reasonable grounds exist to believe that an emergency exists; or

(5) reasonable grounds exist to believe that the client may be located in a specified structure.

G. If acting in good faith, a peace officer shall not be subject to civil liability for the failure of the peace officer to begin or complete an investigation without unnecessary delay or to deliver an application for an emergency order to the court without unnecessary delay.

H. If a peace officer fails to take action in accordance with Subsection P of this section, the peace officer shall advise without unnecessary delay the person requesting police involvement of the right to apply to the court for an emergency order. The peace officer shall immediately provide an application for an emergency order form to the person who sought the peace officer investigation. If a peace officer fails to take action in accordance with Subsection P of this section, and the person who sought the peace officer investigation has completed an application for an emergency order, the peace officer shall without unnecessary delay deliver the signed application for an emergency order to a district court judge even if the court is closed. Failure to begin or complete an investigation without unnecessary delay is not a jurisdictional defect. Failure to deliver an application for an emergency order to the district court judge without unnecessary delay is not a jurisdictional defect.

I. Upon receipt of a completed application for an emergency order, a district court judge may immediately issue an emergency order to detain and transport a client to an evaluation facility when the facts in an application for an emergency order support a finding that:

(1) the client is otherwise subject to lawful arrest;

(2) reasonable grounds exist to believe that the client has just attempted suicide; or

J. The court may order that a peace officer enter a structure if the court makes the finding provided in Subsection I of this section and also finds that:

(1) reasonable grounds exist to believe that:

(a) the client is present in that structure;

(b) an emergency exists and there is an immediate need for assistance to protect or aid a person or to protect property; and

(2) the application for an emergency order is primarily motivated by a strong sense of emergency and not by another motive.

K. Before making an order provided for in Subsection J of this section, the court shall weigh the purpose and nature of the peace officer's entry into the structure, the exigency of the situation based upon known facts and the availability, feasibility and effectiveness of alternatives to the officer's entry into the structure, including any attempts made to convince the client to be taken into custody voluntarily and the imminent risk involved, based upon known facts.

L. When a peace officer enters a structure under an order provided for in Subsection J of this section or in accordance with Subsection T of this section, or when a peace officer is otherwise legally permitted entry into a structure, the peace officer shall take those actions that are reasonably necessary to execute the court's order, ascertain whether a person is in need of assistance and conduct a reasonable sweep of the structure to ensure the safety of the client who is the subject of the order and all other persons or detain the client. A police officer shall not use excessive force against a person.

M. If a court denies an emergency order for evaluation or for entry into a structure, the court shall inform the applicant in writing of the right to an immediate appeal and the reasons for denial. The applicant shall be provided, without cost, copies of filed documents.

N. A peace officer shall, whenever feasible, provide crisis intervention to an individual who appears to have a mental disorder and who may be in need of detention or transport for evaluation or treatment.

O. A filing fee shall not be assessed when an application for an emergency order or petition for commitment is filed pursuant to this section.

[A.] P. A peace officer may detain and transport a [person] client for emergency mental health evaluation and [care] treatment in the absence of [a legally valid] an emergency order [from the court] only if:

(1) the [person] client is otherwise subject to lawful arrest;

(2) an authorized professional has issued a certificate for evaluation;

[(2)] (3) the peace officer has reasonable grounds to believe that the [person] client has just attempted suicide; or

[(3)] (4) the peace officer, based upon the peace officer's own observation and investigation, has reasonable grounds to believe that the [person] client, as a result of a mental disorder, presents a likelihood of serious harm to [himself or herself or] the client's self or a likelihood of serious harm to [others] another and that immediate detention [is] and transport are necessary to prevent [such] serious harm. Immediately upon arrival at the evaluation facility, the peace officer shall:

(a) provide a certificate for evaluation, copies of the application for an emergency order or emergency order and a report to the admitting professional or the admitting professional's designee; and

(b) be interviewed by the admitting [physician] professional or the admitting [physician's] professional's designee. [or

(4) a physician, a psychologist or a qualified mental health professional licensed for independent practice who is affiliated with a community mental health center or core service agency has certified that the person, as a result of a mental disorder, presents a likelihood of serious harm to himself or herself or to others and that immediate detention is necessary to prevent such harm. Such certification shall]

Q. The certificate for evaluation shall constitute authority to transport the [person] client to an evaluation facility.

[B.] R. An [emergency] evaluation [under this section shall be accomplished upon the request of a peace officer or jail or detention facility administrator or that person's designee or upon the certification of a physician, a psychologist or a qualified mental health professional licensed for independent practice who is affiliated with a community mental health center or core service agency. 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] shall be performed upon a client's arrival at an evaluation facility.

S. Before entering a structure to detain and transport a client for emergency mental health evaluation and treatment, a peace officer shall encourage the client to exit the structure voluntarily, unless this encouragement is reasonably believed to threaten the safety of the client or any other person.

T. A peace officer has authority to enter a structure in accordance with an order provided for in Subsection J of this section, when legally permitted or whenever reasonable grounds exist to believe that an emergency exists, that there is an immediate need for assistance to protect or aid a person or protect property and that there is a reasonable basis for associating the emergency with the identified structure. The entry shall be primarily motivated by a strong sense of emergency and not by another motive. When a peace officer enters the home under the emergency exception, the peace officer shall weigh the exigency of the situation, based upon known facts, and the availability, feasibility and effectiveness of alternatives to the officer's entry into the structure, including any attempts made to convince the client to be taken voluntarily into custody, and the imminent risk involved, based upon known facts.

[C.] U. An evaluation facility may accept for an emergency-based admission [any person] a client when [a physician or certified psychologist certifies] the admitting professional determines that [such person] reasonable grounds exist to believe that the client, as a result of a mental disorder, presents a likelihood of serious harm to [himself or herself] the client's self or a likelihood of serious harm to [others] another and that immediate detention [is] and transport are necessary to prevent [such] serious harm. [Such certification] The admitting professional's determination shall constitute authority to transport the [person] client for emergency mental health evaluation and treatment at a residential treatment or habilitation program.

[D.] V. A [person] client detained [under] pursuant to an emergency order or in accordance with the provisions of Subsection P of this section shall, whenever possible, be taken immediately to an evaluation facility. Detention facilities shall be used as temporary shelter for [such persons] detained clients only in cases of extreme emergency for protective custody, and [no person] a client taken into custody under the provisions of the code shall remain in a detention facility no 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] person who is neither accused nor convicted of a crime.

[E. The] W. An admitting [physician or certified psychologist] professional shall evaluate whether reasonable grounds exist to detain the [proposed] client for emergency mental health evaluation and treatment, and, if reasonable grounds are found, the [proposed] client shall be detained further. If the admitting [physician or certified psychologist] professional determines that reasonable grounds do not exist to further detain the [proposed] client for emergency mental health evaluation and treatment, the [proposed] client shall [not] be [detained] released from detention.

[F.] X. 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 right to a hearing within seven days, the right to counsel and the right to communicate with an attorney and a mental health professional of the [proposed] client's own choosing and shall have the right to receive necessary and appropriate treatment.

[G. A peace officer who transports a proposed client to an evaluation facility under the provisions of this section shall not require a court order to be reimbursed by the referring county.]

Y. An admitting professional or an admitting professional's designee at an evaluation facility or residential treatment or habilitation program shall provide a copy of the application for an emergency order, emergency order, certificate for evaluation and peace officer's report to the client. If it is determined that it is not in the best interest of the client to receive copies of the documents upon admission or emergency mental health evaluation, the reason for not providing the documents shall be noted in the medical record. The client's attorney shall be provided a copy of the documents upon request.

Z. A county in which a client is initially detained for transport for emergency mental health evaluation and treatment pursuant to this section shall reimburse a law enforcement agency for the client's transport. A county that fails to make reimbursement in a timely manner in accordance with this subsection shall be liable for and shall pay to the law enforcement agency a penalty in an amount that equals three times the law enforcement agency's cost of transport.

AA. A person who makes an intentional misrepresentation or omission of fact in any of the following circumstances is guilty of a petty misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978:

(1) in providing underlying facts to a peace officer or a peace officer's agent or an authorized professional or an authorized professional's agent to establish reasonable grounds to believe that:

(a) the client just attempted suicide;

(b) as a result of a mental disorder, the client presents a likelihood of serious harm to the client's self or a likelihood of serious harm to another and immediate detention and transport are necessary to prevent serious harm;

(d) an emergency exists; or

(e) the client may be located in a specified structure;

(2) in obtaining entry into a structure using the process provided for in this section;

(3) in an application for an emergency order;

(4) in a certificate for evaluation; or

(5) in obtaining a certificate for evaluation.

BB. As used in this section:

(1) "applicant" means a person, including a peace officer, who files an application for an emergency order;

(2) "certificate for evaluation" means a form on which an authorized professional has certified that reasonable grounds exist to believe that a client:

(a) just attempted suicide; or

(b) as a result of a mental disorder, presents a likelihood of serious harm to the client's self or a likelihood of serious harm to another and immediate detention and transport are necessary to prevent serious harm; and

(3) "emergency order" means a court order to detain and transport a client for emergency mental health evaluation and treatment issued in accordance with the provisions of this section."

SECTION 3. 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] CLIENTS 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] client's self or likelihood of serious harm to another 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] a client 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] self or a likelihood of serious harm to another;

(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] a client is suffering from a mental disorder and presents a likelihood of serious harm to the [adult's own self or others] client's self or a likelihood of serious harm to another, but does not require emergency care, may request the district attorney to investigate and determine whether reasonable grounds exist to commit the [adult] client 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 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 shall act on the petition within seventy-two hours. If the district attorney determines that reasonable grounds exist to commit the [adult] client, 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] Subsections R and U 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."

SECTION 4. 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] CLIENTS.--

A. 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 shall explain the necessity for extended commitment, specify the treatment that has been provided during the evaluation and include an individual treatment plan for the proposed commitment period. 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. 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 the client 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.

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. If, at the conclusion of the hearing, the fact-finder determines by clear and convincing evidence that the client presents a likelihood of serious harm to the client's self or [to others] a likelihood of serious harm to another, 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.

F. A client involuntarily referred for treatment pursuant to this section shall be entitled to a reexamination of the order for the client's involuntary referral for treatment on the client's own petition, or that of the client's legal guardian, parent, spouse, relative or friend, to the district court of the county in which the client resides or is detained. Upon receipt of the petition, the court shall conduct a proceeding in accordance with this section, except that 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.

G. Nothing in this section shall limit the right of a client to petition the court for a writ of habeas corpus.

H. Nothing in this code shall prohibit a client from seeking voluntary admission under Section 43-1-14 NMSA 1978.

I. 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 5. 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] CLIENTS TO RESIDENTIAL CARE.--

A. A guardian appointed pursuant to the Uniform Probate Code may file an application with an evaluation facility seeking residential habilitation services for the protected person. 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 that have been completed.

B. Upon receipt of an application filed according to Subsection A of this section, an 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 individualized habilitation plan that shall be consistent with the least drastic means principle.

C. If the habilitation plan recommends residential services, the 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 [proposed] client, the client's attorney and 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 the [proposed] client's behalf, including testimony of a developmental disability professional of 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 guardian of [an adult] a client involved in a commitment proceeding for extended residential habilitation services 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.

F. The court shall include in its findings the guardian's opinion regarding the need for residential habilitation services or a statement detailing the efforts made to ascertain the guardian's opinion.

G. 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 that creates an imminent likelihood of serious harm to the [proposed] client's self or [to others] a likelihood of serious harm to another, or the [person] client is so greatly disabled that residential services would be in the [person's] client's best interest and that such residential placement is, in the [person's] client'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.

H. The court shall order placement 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.

I. Any client involuntarily referred for habilitation treatment shall be entitled to a reexamination of the order for the client's involuntary referral for habilitation and treatment on the client's own petition, or that of the client's legal guardian, parent, spouse, relative or friend, to the district court of the county in which 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 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.

J. Nothing in this section shall limit the right of a client to petition the court for a writ of habeas corpus.

K. 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 detention, treatment or habilitation."

SECTION 6. Section 43-1-22 NMSA 1978 (being Laws 1977, Chapter 279, Section 22) is amended to read:

"43-1-22. TRANSPORTATION.--Whenever a [proposed patient] client is to be detained and provided emergency mental health evaluation and treatment, committed to a residential mental health [or developmental disability] facility or [to be] returned to [such] a [facility] residential treatment or habilitation program during commitment, the court ordering the commitment or authorizing the return of the [patient] client may direct the sheriff, the New Mexico state police or other appropriate persons to furnish suitable transportation in order to effect [such] the detention and emergency mental health evaluation and treatment, commitment or return [contacting the department for directions as to the destination] of the [patient] client. The evaluation facility may direct the sheriff, the state police or other appropriate person to furnish suitable transportation for returning the client to the county where the client was originally detained, and law enforcement shall comply with that evaluation facility's direction. The county where the person was originally detained shall reimburse law enforcement in a timely manner in accordance with the provisions of Subsection Z of Section 43-1-10 NMSA 1978."

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