44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999

RELATING TO HEALTH; PROVIDING FOR PARENTAL INFORMED CONSENT FOR CERTAIN MEDICAL SERVICES.

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

Section 1. [NEW MATERIAL] PARENTAL CONSENT--MEDICAL TREATMENT.--A person who has not reached the age of majority shall obtain informed consent from his legal guardian or other person authorized by law prior to obtaining treatment or diagnosis at a school-based clinic or a school-linked health clinic.

Section 2. Section 24-1-9 NMSA 1978 (being Laws 1973, Chapter 359, Section 9, as amended) is amended to read:

"24-1-9. CAPACITY TO CONSENT TO EXAMINATION AND TREATMENT FOR A SEXUALLY TRANSMITTED DISEASE.--[Any person regardless of age has the capacity to consent to an examination and treatment by a licensed physician for any sexually transmitted disease.] A person who has not reached the age of majority shall obtain informed consent from a legal guardian or other person authorized by law prior to an examination or treatment by a licensed physician for any sexually transmitted disease."

Section 3. Section 24-1-13 NMSA 1978 (being Laws 1973, Chapter 359, Section 13) is amended to read:

"24-1-13. PREGNANCY--CAPACITY TO CONSENT TO EXAMINATION AND DIAGNOSIS.--[Any person regardless of age has the capacity to consent to an examination and diagnosis by a licensed physician for pregnancy.] A person who has not reached the age of majority shall obtain informed consent from a legal guardian or other person authorized by law prior to an examination or diagnosis by a licensed physician for pregnancy."

Section 4. Section 24-2B-3 NMSA 1978 (being Laws 1989, Chapter 227, Section 3) is amended to read:

"24-2B-3. SUBSTITUTED CONSENT.--Informed consent shall be obtained from a legal guardian or other person authorized by law when the person [is not competent. A minor shall have the capacity to give informed consent to have the human immunodeficiency virus test performed on himself] has not reached the age of majority."

Section 5. Section 26-2-14 NMSA 1978 (being Laws 1972, Chapter 10, Section 1) is amended to read:

"26-2-14. CAPACITY TO SUBMIT TO DRUG ABUSE TREATMENT--LIABILITY FOR EXPENSES--CONFIDENTIALITY OF RECORDS.--

A. [Any person, regardless of age] A person who has reached the age of majority may submit himself for drug abuse treatment to any licensed physician, public or private hospital, clinic supervised by a licensed physician or any institution or facility maintained in whole or in part by state or federal funds.

B. A person who has not reached the age of majority may submit himself for drug abuse treatment to any licensed physician, public or private hospital, clinic supervised by a licensed physician or institution or facility maintained in whole or in part by state or federal funds only after obtaining informed consent from a legal guardian or other person authorized by law.

[B.] C. No parent or other legal guardian shall be liable for payment of drug abuse treatment expenses if the treatment was made without his written consent.

[C.] D. The treating facility or person shall keep such records on drug abuse treatment as are necessary or required by law. The records shall be confidential and may be used only for rehabilitation, research, statistical and medical purposes. No such records or any information contained in them shall be discoverable by the state in any criminal prosecution."

Section 6. Section 32A-6-14 NMSA 1978 (being Laws 1995, Chapter 207, Section 16) is amended to read:

"32A-6-14. TREATMENT AND HABILITATION OF CHILDREN--

LIABILITY.--

A. [Any child shall have the right, with or without parental consent, to consent to and] A person who has not reached the age of majority shall obtain informed consent from a legal guardian or other person authorized by law in order to receive individual psychotherapy, group psychotherapy, guidance, counseling or other forms of verbal therapy [that do not include any aversive stimuli or substantial deprivations].

B. No psychosurgery or convulsive treatment shall be performed on a child except by order of a court upon a finding that the treatment is necessary to prevent serious harm to the child. Consent of a child or his parent, guardian or legal custodian to the treatment without a court order shall be invalid and shall not be a defense against any legal action that might be brought against the provider of the treatment.

C. No psychotropic medications or interventions involving aversive stimuli or substantial deprivation shall be administered to any child [without proper consent. If the child is capable of understanding the proposed nature of treatment and its consequences and is capable of informed consent, his consent shall be obtained before the treatment is performed] without obtaining informed consent from a legal guardian or other person authorized by law.

D. Psychotropic medications or interventions involving aversive stimuli may be administered to a child [under the age of fourteen] who has not reached the age of majority only with the informed consent of the child's parent, guardian or legal custodian. [When psychotropic medications or interventions involving aversive stimuli are administered to a child under the age of fourteen, the child's guardian ad litem shall be notified by the residential treatment or habilitation program.]

E. Psychotropic medications or interventions involving aversive stimuli may be administered to a child [fourteen years of age or older with the informed consent of the child. When psychotropic medications or interventions involving aversive stimuli are administered to a child fourteen years of age or older, the child's parent, guardian or legal custodian shall be notified by the residential treatment or habilitation program] who has not reached the age of majority only with the informed consent of his legal guardian or other person authorized by law. If the consent of the [child] legal guardian or other person authorized by law is not obtained, or 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 child is incapable of informed consent, and the treatment provider or another interested person believes that the administration of the drug or program is necessary to protect the child from serious harm, any interested party may request that the children's court attorney petition the court for appointment of a treatment guardian to make a substitute decision for the child. The petition shall be served on the child and the child's attorney. A hearing on the petition shall be held within three court days. At the hearing, the child shall be represented by counsel and shall have the right to be present, to present witnesses and to cross-examine opposing witnesses. If after the hearing the court finds that the child is not capable of making treatment decisions, the court may order the appointment of a treatment guardian. When appointing a treatment guardian for the child, the court shall appoint the child's parent or guardian unless the child is in the custody of the department or the court finds that the child's parent or guardian is unable or unwilling to act in the child's best interests. When the child is in the custody of the department, the court shall appoint the child's legal custodian as treatment guardian, unless the court finds that the legal custodian is unable or unwilling to act in the child's best interests. The treatment guardian shall make a decision on behalf of the child whether to accept treatment, depending on whether the treatment appears to be in the child's best interests and is consistent with the least drastic means principle for accomplishing the treatment objective. In making this decision, the treatment guardian shall consult with the child and consider the child's expressed opinions, if any, even if those opinions do not constitute valid consent or rejection of treatment. The treatment guardian shall give consideration to any previous decisions made by the child in similar circumstances when the child was able to make treatment decisions. If a child, 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. The enforcement order may authorize any peace officer to take the child into custody and to transport the child to an evaluation facility and may authorize the facility to forcibly administer treatment. The treatment guardian shall consult with the physician or other professional who is proposing treatment, the child's attorney and interested friends or relatives of the child as the treatment guardian deems appropriate in making this decision. A child, physician or other professional wishing to appeal the decision of the treatment guardian may do so by filing an appeal with the court within three calendar days of receiving notice of the treatment guardian's decision. In such a decision, the child shall be represented by counsel. The court may overrule the treatment guardian's decision if it finds that decision to be against the best interests of the child.

F. When the court appoints a treatment guardian, it shall specify the length of time during which the treatment guardian may exercise treatment guardian powers, up to a maximum period of one year. If at the end of the guardianship period the treatment guardian believes that the child is still incapable of making treatment decisions, the treatment guardian shall petition the court for reappointment or for appointment of a new treatment guardian. The guardianship shall be extended or a new guardian shall be appointed only if the court finds the child is, at the time of the hearing, incapable of understanding and expressing an opinion regarding treatment decisions. The child shall be represented by counsel and shall have the right to be present and to present evidence at all such hearings.

G. If during the period of a treatment guardian's power the treatment guardian, the child, the treatment provider, a member of the child's family or the child's attorney believes that the child has regained competence to make treatment decisions, that person may petition the court for a termination of the treatment guardianship. If the court finds the child is capable of making treatment decisions, it shall terminate the power of the treatment guardian and restore to the child the power to make treatment decisions.

H. A treatment guardian shall only have those powers enumerated in the Children's Mental Health and Developmental Disabilities Act.

I. If a licensed physician believes that the administration of psychotropic medication is necessary to protect the child from serious harm that could occur while the provisions of this section are being satisfied, the licensed physician may administer the medication on an emergency basis. When medication is administered to a child on an emergency basis, the treating physician shall prepare and place in the child'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 child from serious harm. When medication is administered to a child on an emergency basis, the child's parent, guardian or legal custodian and the child's attorney or guardian ad litem shall be notified by the residential treatment or habilitation program.

J. Liability of persons providing mental health and developmental disability services to children shall be as follows:

(1) no mental health or developmental disability professional or treatment facility is required to detain, treat or provide services to a child when the child does not require detention, treatment or services;

(2) no mental health or developmental disability professional or facility may be held liable solely on the basis of misrepresentations made to them by a child seeking treatment or habilitation services or by a child's parent [provided] if the professional or the facility's staff acted in good faith;

(3) no mental health or developmental disability professional or facility may be held liable solely on the basis of reliance upon a tribal court order [provided] if the mental health or developmental professional or the facility's staff acted in good faith;

(4) nothing in the Children's Mental Health and Developmental Disabilities Act shall be construed to relieve any professional or facility from liability for negligence in the diagnosis, treatment or services provided to any child; and

(5) nothing in the Children's Mental Health and Developmental Disabilities Act shall be construed to relieve any professional or facility from duties placed on [them] it by reporting laws relating to the detection of child abuse.

K. A parent shall be responsible for the cost of mental health services provided to the parent's child. This section does not affect the right of any child to receive free mental health or developmental disability services under any publicly supported program or the right of any parent to reimbursement from, or payment on the child's behalf by, any publicly supported program or private insurer; provided that the state shall pay no more than four hundred dollars ($400) per day for the cost of such services. The state may adjust this rate. However, any adjustment should be based on a cost analysis conducted by the department and reviewed by the legislative finance committee."