2005 Senate Bill text for SB0749

SENATE BILL 749

47th legislature - STATE OF NEW MEXICO - first session, 2005

INTRODUCED BY

Mary Kay Papen

AN ACT

RELATING TO HEALTH CARE; AMENDING AND ENACTING SECTIONS OF THE UNIFORM HEALTH-CARE DECISIONS ACT TO PROVIDE FOR MENTAL HEALTH TREATMENT DIRECTIVES.

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

Section 1. Section 24-7A-1 NMSA 1978 (being Laws 1995, Chapter 182, Section 1, as amended) is amended to read:

"24-7A-1. DEFINITIONS.--As used in the Uniform Health-Care Decisions Act:

A. "advance health-care directive" means an individual instruction or a power of attorney for health care made, in either case, while the individual has capacity;

B. "advance directive for mental health treatment" means an individual instruction or power of attorney for mental health treatment made pursuant to the Uniform Health-Care Decisions Act;

[B.] C. "agent" means an individual designated in a power of attorney for health care to make a health-care or mental health treatment decision for the individual granting the power;

[C.] D. "capacity" means an individual's ability to understand and appreciate the nature and consequences of proposed health care or mental health treatment, including its significant benefits, risks and alternatives to proposed health care or mental health treatment and to make and communicate an informed health-care or mental health treatment decision. A written determination or certification of lack of capacity shall be made only according to the provisions of Section 24-7A-11 NMSA 1978;

[D.] E. "emancipated minor" means a person between the ages of sixteen and eighteen who has been married, who is on active duty in the armed forces or who has been declared by court order to be emancipated;

[E.] F. "guardian" means a judicially appointed guardian or conservator having authority to make a health-care or mental health decision for an individual;

[F.] G. "health care" means any care, treatment, service or procedure to maintain, diagnose or otherwise affect an individual's physical or mental [condition] health;

[G.] H. "health-care decision" means a decision made by an individual or the individual's agent, guardian or surrogate, regarding the individual's health care or mental health treatment, including:

(1) selection and discharge of health-care or mental health treatment providers and institutions;

(2) approval or disapproval of diagnostic tests, surgical procedures, programs of medication, [and] orders not to resuscitate and mental health treatment;

(3) directions relating to life-sustaining treatment, including withholding or withdrawing life-sustaining treatment and the termination of life support; and

(4) directions to provide, withhold or withdraw artificial nutrition and hydration and all other forms of health care;

[H.] I. "health-care institution" means an institution, facility or agency licensed, certified or otherwise authorized or permitted by law to provide health care or mental health treatment in the ordinary course of business;

[I.] J. "health-care provider" means an individual licensed, certified or otherwise authorized or permitted by law to provide health care or mental health treatment in the ordinary course of business or practice of a profession;

[J.] K. "individual instruction" means an individual's direction concerning a health-care or mental health treatment decision for the individual, made while the individual has capacity;

[K.] L. "life-sustaining treatment" means any medical treatment or procedure without which the individual is likely to die within a relatively short time, as determined to a reasonable degree of medical certainty by the primary physician;

M. "mental health treatment" means convulsive treatment, treatment with psychoactive medication or admission to and retention in a facility, if required;

N. "mental illness" means a substantial disorder of thought, mood, perception, psychological orientation or memory that significantly impairs judgment, behavior, capacity to recognize reality or ability to meet the ordinary demands of life;

[L.] O. "person" means an individual, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency or instrumentality or any other legal or commercial entity;

[M.] P. "physician" means an individual authorized to practice medicine, including psychiatry, or osteopathy;

Q. "psychologist" means a licensed prescribing psychologist;

[N.] R. "power of attorney for health care or mental health treatment" means the designation of an agent to make health-care or mental health treatment decisions for the individual granting the power, made while the individual has capacity;

[O.] S. "primary physician" means a physician designated by an individual or the individual's agent, guardian or surrogate to have primary responsibility for the individual's health care or, in the absence of a designation or if the designated physician is not reasonably available, a physician who undertakes the responsibility;

T. "primary psychologist" means a psychologist designated by an individual or the individual's agent, guardian or surrogate to have primary responsibility for the individual's mental health treatment or, in the absence of a designation or if the designated psychologist is not reasonably available, a physician or psychologist who undertakes the responsibility;

[P.] U. "principal" means an adult or emancipated minor who, while having capacity, has made a power of attorney for health care by which he delegates his right to make health-care decisions for himself to an agent;

[Q.] V. "qualified health-care professional" means a health-care provider who is a physician, physician assistant, nurse practitioner, nurse, psychologist or social worker;

[R.] W. "reasonably available" means readily able to be contacted without undue effort and willing and able to act in a timely manner considering the urgency of the patient's health-care needs;

[S.] X. "state" means a state of the United States, the District of Columbia, the commonwealth of Puerto Rico or a territory or insular possession subject to the jurisdiction of the United States;

[T.] Y. "supervising health-care provider" means the primary physician or psychologist or, if there is no primary physician or psychologist or the primary physician or psychologist is not reasonably available, the health-care provider who has undertaken primary responsibility for an individual's health care;

[U.] Z. "surrogate" means an individual, other than a patient's agent or guardian, authorized under the Uniform Health-Care Decisions Act to make a health-care decision for the patient; and

[V.] AA. "ward" means an adult or emancipated minor for whom a guardian has been appointed."

Section 2. Section 24-7A-2 NMSA 1978 (being Laws 1995, Chapter 182, Section 2) is amended to read:

"24-7A-2. ADVANCE HEALTH-CARE DIRECTIVES.--

A. An adult or emancipated minor, while having capacity, has the right to make his [or her] own health-care decisions and may give an individual instruction. The individual instruction may be oral or written; if oral, it [must] shall be made by personally informing a health-care provider. The individual instruction may be limited to take effect only if a specified condition arises.

B. An adult or emancipated minor, while having capacity, may execute a power of attorney for health care, which may authorize the agent to make any health-care decision the principal could have made while having capacity. The power [must] shall be in writing and signed by the principal. The power remains in effect notwithstanding the principal's later incapacity under the Uniform Health-Care Decisions Act or Article 5 of the Uniform Probate Code. The power may include individual instructions. Unless related to the principal by blood, marriage or adoption, an agent may not be an attending physician or psychologist or an employee of the physician or psychologist or an owner, operator or employee of a health-care institution at which the principal is receiving care.

C. Unless otherwise specified in a power of attorney for health care, the authority of an agent becomes effective only upon a determination or certification that the principal lacks capacity and ceases to be effective upon a determination that the principal has recovered capacity.

D. Unless otherwise specified in a written advance health-care directive [a] or advance directive for mental health treatment, a written determination or certification that an individual lacks or has recovered capacity or that another condition exists that affects an individual instruction or the authority of an agent shall be made according to the provisions of Section [11 of the Uniform Health-Care Decisions Act] 24-7A-11 NMSA 1978.

E. An agent shall make a health-care decision in accordance with the principal's individual instructions, if any, and other wishes to the extent known to the agent. Otherwise, the agent shall make the decision in accordance with the agent's determination of the principal's best interest. In determining the principal's best interest, the agent shall consider the principal's personal values to the extent known to the agent.

F. A health-care decision made by an agent for a principal is effective without judicial approval.

G. A written advance health-care directive or advance directive for mental health treatment may include the individual's nomination of a guardian of the [person] individual.

H. The fact that an individual has executed an advance directive for mental health treatment shall not constitute an indication of mental incompetence.

I. For purposes of the Uniform Health-Care Decisions Act, at least one witness shall not be:

(1) an agent of the principal;

(2) related to the principal by blood or marriage;

(3) entitled to any part of the principal's estate or have a claim against the principal's estate;

(4) the attending physician or psychologist; or

(5) an owner, operator or employee of a health-care institution at which the principal is receiving care or of any parent organization of the health-care institution."

Section 3. Section 24-7A-2.1 NMSA 1978 (being Laws 1997, Chapter 168, Section 14) is amended to read:

"24-7A-2.1. PROHIBITED PRACTICE.--

A. No insurer or other provider of benefits regulated by the New Mexico Insurance Code or a state agency shall require a person to execute or revoke an advance health-care directive or advance directive for mental health treatment as a condition for membership in, being insured for or receiving coverage or benefits under an insurance contract or plan.

B. No insurer may condition the sale, procurement or issuance of a policy, plan, contract, certificate or other evidence of coverage, or entry into a pension, profit-sharing, retirement, employment or similar benefit plan, upon the execution or revocation of an advance health-care directive or advance directive for mental health treatment; nor shall the existence of an advance health-care directive or advance directive for mental health treatment modify the terms of an existing policy, plan, contract, certificate or other evidence of coverage of insurance.

C. The provisions of this section shall be enforced by the superintendent of insurance under the New Mexico Insurance Code."

Section 4. Section 24-7A-3 NMSA 1978 (being Laws 1995, Chapter 182, Section 3, as amended) is amended to read:

"24-7A-3. REVOCATION OF ADVANCE HEALTH-CARE DIRECTIVE OR ADVANCE DIRECTIVE FOR MENTAL HEALTH TREATMENT.--

A. An individual, while having capacity, may revoke the designation of an agent either by a signed writing or by personally informing the supervising health-care provider. If the individual cannot sign, a written revocation [must] shall be signed for the individual and be witnessed by two witnesses pursuant to Subsection I of Section 24-7A-2 NMSA 1978, each of whom has signed at the direction and in the presence of the individual and of each other.

B. An individual, while having capacity, may revoke all or part of an advance health-care directive or advance directive for mental health treatment, other than the designation of an agent, at any time and in any manner that communicates an intent to revoke.

C. A health-care provider, agent, guardian or surrogate who is informed of a revocation shall promptly communicate the fact of the revocation to the supervising health-care provider and to any health-care institution at which the patient is receiving care.

D. The filing of a petition for or a decree of annulment, divorce, dissolution of marriage or legal separation revokes a previous designation of a spouse as agent unless otherwise specified in the decree or in a power of attorney for health care. A designation revoked solely by this subsection is revived by the individual's remarriage to the former spouse, by a nullification of the divorce, annulment or legal separation or by the dismissal or withdrawal, with the individual's consent, of a petition seeking annulment, divorce, dissolution of marriage or legal separation.

E. An advance health-care directive or advance directive for mental health treatment that conflicts with an earlier advance health-care directive or advance directive for mental health treatment revokes the earlier directive to the extent of the conflict.

F. Unless otherwise specified in the power of attorney for health-care or mental health treatment, an advance health-care directive and advance directive for mental health treatment shall be treated separately. A revocation of a power of attorney for health-care treatment or for mental health treatment shall not affect the validity of a power of attorney for the other.

G. An advance health-care directive or advance directive for mental health treatment is valid only if it is signed by the principal and two witnesses that are at least eighteen years of age, pursuant to Subsection I of Section 24-7A-2 NMSA 1978 and the witnesses attest that the principal;

(1) is known to them;

(2) signed the advance health-care directive or advance directive for mental health treatment in their presence;

(3) appears to be capable; and

(4) is not acting under duress, fraud or undue influence."

Section 5. Section 24-7A-4 NMSA 1978 (being Laws 1995, Chapter 182, Section 4, as amended) is amended to read:

"24-7A-4. OPTIONAL FORM FOR ADVANCE HEALTH-CARE DIRECTIVE.--The following form may, but need not, be used to create an advance health-care directive. The other sections of the Uniform Health-Care Decisions Act govern the effect of this or any other writing used to create an advance health-care directive. An individual may complete or modify all or any part of the following form:

"OPTIONAL ADVANCE HEALTH-CARE DIRECTIVE

Explanation

You have the right to give instructions about your own health care. You also have the right to name someone else to make health-care decisions for you. This form lets you do either or both of these things. It also lets you express your wishes regarding the designation of your primary physician.

THIS FORM IS OPTIONAL. Each paragraph and word of this form is also optional. If you use this form, you may cross out, complete or modify all or any part of it. You are free to use a different form. If you use this form, be sure to sign it and date it.

PART 1 of this form is a power of attorney for health care. PART 1 lets you name another individual as agent to make health-care decisions for you if you become incapable of making your own decisions or if you want someone else to make those decisions for you now even though you are still capable. You may also name an alternate agent to act for you if your first choice is not willing, able or reasonably available to make decisions for you. Unless related to you, your agent may not be an owner, operator or employee of a health-care institution at which you are receiving care.

Unless the form you sign limits the authority of your agent, your agent may make all health-care decisions for you. This form has a place for you to limit the authority of your agent. You need not limit the authority of your agent if you wish to rely on your agent for all health-care decisions that may have to be made. If you choose not to limit the authority of your agent, your agent will have the right to:

(a) consent or refuse consent to any care, treatment, service or procedure to maintain, diagnose or otherwise affect a physical or mental condition;

(b) select or discharge health-care providers and institutions;

(c) approve or disapprove diagnostic tests, surgical procedures, programs of medication and orders not to resuscitate; and

(d) direct the provision, withholding or withdrawal of artificial nutrition and hydration and all other forms of health care.

PART 2 of this form lets you give specific instructions about any aspect of your health care. Choices are provided for you to express your wishes regarding life-sustaining treatment, including the provision of artificial nutrition and hydration, as well as the provision of pain relief. In addition, you may express your wishes regarding whether you want to make an anatomical gift of some or all of your organs and tissue. Space is also provided for you to add to the choices you have made or for you to write out any additional wishes.

PART 3 of this form lets you designate a physician to have primary responsibility for your health care.

After completing this form, sign and date the form at the end. It is recommended but not required that you request two other individuals to sign as witnesses. Give a copy of the signed and completed form to your physician, to any other health-care providers you may have, to any health-care institution at which you are receiving care and to any health-care agents you have named. You should talk to the person you have named as agent to make sure that he or she understands your wishes and is willing to take the responsibility.

You have the right to revoke this advance health-care directive or replace this form at any time.

* * * * * * * * * * * * * * * * * * * * *

PART 1

POWER OF ATTORNEY FOR HEALTH CARE

(1) DESIGNATION OF AGENT: I designate the following individual as my agent to make health-care decisions for me:

_____________________________________________________________

(name of individual you choose as agent)

_____________________________________________________________

(address) (city) (state) (zip code)

_____________________________________________________________

(home phone) (work phone)

If I revoke my agent's authority or if my agent is not willing, able or reasonably available to make a health-care decision for me, I designate as my first alternate agent:

_____________________________________________________________

(name of individual you choose as first alternate agent)

_____________________________________________________________

(address) (city) (state) (zip code)

_____________________________________________________________

(home phone) (work phone)

If I revoke the authority of my agent and first alternate agent or if neither is willing, able or reasonably available to make a health-care decision for me, I designate as my second alternate agent:

_____________________________________________________________

(name of individual you choose as second alternate agent)

_____________________________________________________________

(address) (city) (state) (zip code)

_____________________________________________________________

(home phone) (work phone)

(2) AGENT'S AUTHORITY: My agent is authorized to obtain and review medical records, reports and information about me and to make all health-care decisions for me, including decisions to provide, withhold or withdraw artificial nutrition, hydration and all other forms of health care to keep me alive, except as I state here:

_____________________________________________________________

(Add additional sheets if needed.)

(3) WHEN AGENT'S AUTHORITY BECOMES EFFECTIVE: My agent's authority becomes effective when my primary physician and one other qualified health-care professional determine that I am unable to make my own health-care decisions. If I initial this box [ ], my agent's authority to make health-care decisions for me takes effect immediately.

(4) AGENT'S OBLIGATION: My agent shall make health-care decisions for me in accordance with this power of attorney for health care, any instructions I give in Part 2 of this form and my other wishes to the extent known to my agent. To the extent my wishes are unknown, my agent shall make health-care decisions for me in accordance with what my agent determines to be in my best interest. In determining my best interest, my agent shall consider my personal values to the extent known to my agent.

(5) NOMINATION OF GUARDIAN: If a guardian of my person needs to be appointed for me by a court, I nominate the agent designated in this form. If that agent is not willing, able or reasonably available to act as guardian, I nominate the alternate agents whom I have named, in the order designated.

PART 2

INSTRUCTIONS FOR HEALTH CARE

If you are satisfied to allow your agent to determine what is best for you in making end-of-life decisions, you need not fill out this part of the form. If you do fill out this part of the form, you may cross out any wording you do not want.

(6) END-OF-LIFE DECISIONS: If I am unable to make or communicate decisions regarding my health care, and IF (i) I have an incurable or irreversible condition that will result in my death within a relatively short time, OR (ii) I become unconscious and, to a reasonable degree of medical certainty, I will not regain consciousness, OR (iii) the likely risks and burdens of treatment would outweigh the expected benefits, THEN I direct that my health-care providers and others involved in my care provide, withhold or withdraw treatment in accordance with the choice I have initialed below in one of the following three boxes:

[ ] I CHOOSE NOT To Prolong Life

I do not want my life to be prolonged.

[ ] I CHOOSE To Prolong Life

I want my life to be prolonged as long as possible within the limits of generally accepted health-care standards.

[ ] I CHOOSE To Let My Agent Decide

My agent under my power of attorney for health care may make life-sustaining treatment decisions for me.

(7) ARTIFICIAL NUTRITION AND HYDRATION: If I have chosen above NOT to prolong life, I also specify by marking my initials below:

[ ] I DO NOT want artificial nutrition OR

[ ] I DO want artificial nutrition.

[ ] I DO NOT want artificial hydration unless required for my comfort OR

[ ] I DO want artificial hydration.

(8) RELIEF FROM PAIN: Regardless of the choices I have made in this form and except as I state in the following space, I direct that the best medical care possible to keep me clean, comfortable and free of pain or discomfort be provided at all times so that my dignity is maintained, even if this care hastens my death:

_____________________________________________________________

(9) ANATOMICAL GIFT DESIGNATION: Upon my death I specify as marked below whether I choose to make an anatomical gift of all or some of my organs or tissue:

[ ] I CHOOSE to make an anatomical gift of all of my organs or tissue to be determined by medical suitability at the time of death, and artificial support may be maintained long enough for organs to be removed

[ ] I CHOOSE to make a partial anatomical gift of some of my organs and tissue as specified below, and artificial support may be maintained long enough for organs to be removed.

_____________________________________________________________

[ ] I REFUSE to make an anatomical gift of any of my organs or tissue.

[ ] I CHOOSE to let my agent decide.

(10) OTHER WISHES: (If you wish to write your own instructions, or if you wish to add to the instructions you have given above, you may do so here.) I direct that:

_____________________________________________________________

(Add additional sheets if needed.)

PART 3

PRIMARY PHYSICIAN

(11) I designate the following physician as my primary physician:

_____________________________________________________________

(name of physician)

_____________________________________________________________

(address) (city) (state) (zip code)

_____________________________________________________________

(phone)

If the physician I have designated above is not willing, able or reasonably available to act as my primary physician, I designate the following physician as my primary physician:

_____________________________________________________________

(name of physician)

_____________________________________________________________

(address) (city) (state) (zip code)

_____________________________________________________________

(phone)

* * * * * * * * * * * * * * * * * * * *

(12) EFFECT OF COPY: A copy of this form has the same effect as the original.

(13) REVOCATION: I understand that I may revoke this OPTIONAL ADVANCE HEALTH-CARE DIRECTIVE at any time, and that if I revoke it, I should promptly notify my supervising health-care provider and any health-care institution where I am receiving care and any others to whom I have given copies of this power of attorney. I understand that I may revoke the designation of an agent either by a signed writing or by personally informing the supervising health-care provider.

(14) SIGNATURES: Sign and date the form here:

_____________________________ _____________________________

(date) (sign your name)

_____________________________ _____________________________

(address) (print your name) _____________________________ _____________________________

(city) (state) (your social security number)

(Optional) SIGNATURES OF WITNESSES:

First witness Second witness

____________________________ ____________________________

(print name) (print name)

____________________________ ____________________________

(address) (address)

____________________________ ____________________________ (city) (state) (city) (state)

____________________________ ____________________________

(signature of witness) (signature of witness)

____________________________ ____________________________

(date) (date)"."

Section 6. A new section of the Uniform Health-Care Decisions Act, Section 24-7A-4.2 NMSA 1978, is enacted to read:

"Section 24-7A-4.2. [NEW MATERIAL] OPTIONAL FORM FOR ADVANCE DIRECTIVE FOR MENTAL HEALTH TREATMENT.--

A. A written instruction stating the mental health treatment wishes of the principal executed in accordance with the provisions of the Uniform Health-Care Decisions Act shall be substantially in the form provided by Subsection E of this section.

B. A principal may designate a capable person eighteen years of age or older to act as agent to make mental health treatment decisions. An alternative agent may also be designated to act as agent if the original agent is unable or unwilling to act at any time. An appointment of an agent shall be substantially in the form provided by Subsection E of this section.

C. An agent who has accepted the appointment in writing shall have authority to make decisions, in consultation with the attending physician or psychologist, about mental health treatment on behalf of the principal only when the principal is certified as to lack capacity and to require mental health treatment as provided by Section 24-7A-11 NMSA 1978. These decisions shall be consistent with any wishes or instructions the principal has expressed in the instruction. If the wishes or instructions of the principal are not expressed, the agent shall act in what the agent believes to be in the best interest of the principal. The agent may consent to inpatient mental health treatment on behalf of the principal if so authorized in the advance directive for mental health treatment.

D. An agent may withdraw by giving notice to the principal. If a principal lacks capacity, the agent may withdraw by giving notice to the named alternative agent if any, and, if none, then to the attending physician or health-care provider. The attending physician or health-care provider shall note the withdrawal of the last named agent as part of the principal's medical record.

E. An advance directive for mental health treatment shall be notarized and shall be in substantially the following form:

"ADVANCE DIRECTIVE FOR MENTAL HEALTH TREATMENT

I, ______________________, being of sound mind, willfully and voluntarily make known my wishes about mental health treatment, by my instructions to others through my advance directive for mental health treatment, or by my appointment of an agent, or both. I thus do hereby declare:

I. DECLARATION FOR MENTAL HEALTH TREATMENT

If my attending physician or psychologist and another physician or psychologist determine that my ability to receive and evaluate information effectively or communicate decisions is impaired to such an extent that I lack the capacity to refuse or consent to mental health treatment and that mental health treatment is necessary, I direct my attending physician or psychologist and other health-care providers, pursuant to the Uniform Health-Care Decisions Act, to provide the mental health treatment I have indicated below by my signature.

I understand that "mental health treatment" means convulsive treatment, treatment with psychoactive medication and admission to and retention in a health-care facility for a period up to ______ days.

I direct the following concerning my mental health care:

_______________________________________________________________

I direct the following concerning medications and drug studies:

______________________________________________________________________________________________________________________________

I direct the following concerning mental health therapeutic modalities, including electroconvulsive therapy, psychosurgery, seclusion and restraint:

______________________________________________________________________________________________________________________________

I further state that this document and the information contained in it may be released to any requesting licensed mental health professional.

_____________________________ _____________________________

principal's signature date

_____________________________ _____________________________

witness 1 date

_____________________________ _____________________________

witness 2 date

II. APPOINTMENT OF AGENT

I hereby appoint:

NAME ________________________________________

ADDRESS _____________________________________

TELEPHONE # _________________________________ to act as my agent to make decisions regarding my mental health treatment if I become incapable of giving or withholding informed consent for that treatment.

If the person named above refuses or is unable to act on my behalf, or if I revoke that person's authority to act as my agent, I authorize the following person to act as my agent:

NAME ________________________________________

ADDRESS _____________________________________

TELEPHONE # _________________________________

My agent is authorized to make decisions that are consistent

with the wishes I have expressed in my declaration. If my wishes are not expressed, my agent is to act in what he or she believes to be my best interest.

__________________________________________________

(signature of principal/date)

III. CONFLICTING PROVISION

I understand that if I have completed both a declaration and have appointed an agent and if there is a conflict between my agent's decision and my declaration, my declaration shall take precedence unless I indicate otherwise.

__________________________________________ (signature)

I understand that if I have completed both an advance health-care directive and an advance directive for mental health treatment, that those directives should be executed as separate instructions.

__________________________________________ (signature)

IV. OTHER PROVISIONS

a. In the absence of my ability to give directions regarding my mental health treatment, it is my intention that this advance directive for mental health treatment shall be honored by my family and physicians or psychologists as the expression of my legal right to consent or to refuse to consent to mental health treatment.

b. I direct the following concerning the care of my minor children:

_______________________________________________________________

c. This advance directive for mental health treatment shall be in effect until it is revoked.

d. I understand that I may revoke this advance directive for mental health treatment at any time.

e. I understand and agree that if I have any prior advance directives for mental health treatment, and if I sign this advance directive for mental health treatment, my prior advance directives for mental health treatment are revoked.

f. I understand that full importance of this advance directive for mental health treatment and I am emotionally and mentally competent to make this advance directive for mental health treatment.

Signed this _______ day of ___________, 20__

__________________________________________

(signature)

__________________________________________

(city, county and state of residence)

This advance directive was signed in my presence.

__________________________________________

(signature of witness)

__________________________________________

(address)

__________________________________________

(signature of witness)

__________________________________________

(address)

__________________________________________

(signature of attending physician and/or psychologist)

__________________________________________

(address)"."

Section 7. Section 24-7A-5 NMSA 1978 (being Laws 1995, Chapter 182, Section 5, as amended) is amended to read:

"24-7A-5. DECISIONS BY SURROGATE.--

A. A surrogate may make a health-care decision for a patient who is an adult or emancipated minor if the patient has been determined according to the provisions of Section 24-7A-11 NMSA 1978 to lack capacity and no agent or guardian has been appointed or the agent or guardian is not reasonably available.

B. An adult or emancipated minor, while having capacity, may designate any individual to act as surrogate by personally informing the supervising health-care provider. In the absence of a designation or if the designee is not reasonably available, any member of the following classes of the patient's family who is reasonably available, in descending order of priority, may act as surrogate:

(1) the spouse, unless legally separated or unless there is a pending petition for annulment, divorce, dissolution of marriage or legal separation;

(2) an individual in a long-term relationship of indefinite duration with the patient in which the individual has demonstrated an actual commitment to the patient similar to the commitment of a spouse and in which the individual and the patient consider themselves to be responsible for each other's well-being;

(3) an adult child;

(4) a parent;

(5) an adult brother or sister; or

(6) a grandparent.

C. If none of the individuals eligible to act as surrogate under Subsection B of this section is reasonably available, an adult who has exhibited special care and concern for the patient, who is familiar with the patient's personal values and who is reasonably available may act as surrogate.

D. A surrogate shall communicate his assumption of authority as promptly as practicable to the patient, to members of the patient's family specified in Subsection B of this section who can be readily contacted and to the supervising health-care provider.

E. If more than one member of a class [assumes] assume authority to act as surrogate and they do not agree on a health-care decision and the supervising health-care provider is so informed, the supervising health-care provider shall comply with the decision of a majority of the members of that class who have communicated their views to the provider. If the class is evenly divided concerning the health-care decision and the supervising health-care provider is so informed, that class and all individuals having lower priority are disqualified from making the decision.

F. A surrogate shall make a health-care decision in accordance with the patient's individual instructions, if any, and other wishes to the extent known to the surrogate. Otherwise, the surrogate shall make the decision in accordance with the surrogate's determination of the patient's best interest. In determining the patient's best interest, the surrogate shall consider the patient's personal values to the extent known to the surrogate.

G. A health-care decision made by a surrogate for a patient shall not be made solely on the basis of the patient's pre-existing physical [or], medical or mental condition or pre-existing or projected disability.

H. A health-care decision made by a surrogate for a patient is effective without judicial approval.

I. A patient, at any time, may disqualify any person, including a member of the patient's family, from acting as the patient's surrogate by a signed writing or by personally informing a health-care provider of the disqualification. A health-care provider who is informed by the patient of a disqualification shall promptly communicate the fact of disqualification to the supervising health-care provider and to any health-care institution at which the patient is receiving care.

J. Unless related to the patient by blood, marriage or adoption, a surrogate may not be an owner, operator or employee of a health-care institution at which the patient is receiving care.

K. A supervising health-care provider may require an individual claiming the right to act as surrogate for a patient to provide a written declaration under penalty of perjury stating facts and circumstances reasonably sufficient to establish the claimed authority."

Section 8. Section 24-7A-6 NMSA 1978 (being Laws 1995, Chapter 182, Section 6) is amended to read:

"24-7A-6. DECISIONS BY GUARDIAN.--

A. A guardian shall comply with the ward's individual instructions and may not revoke the ward's advance health-care directive or advance directive for mental health treatment unless the appointing court expressly so authorizes after notice to the agent and the ward.

B. A health-care decision of an agent appointed by an individual having capacity takes precedence over that of a guardian, unless the appointing court expressly directs otherwise after notice to the agent and the ward.

C. Subject to the provisions of Subsections A and B of this section, a health-care decision made by a guardian for the ward is effective without judicial approval, if the appointing court has expressly authorized the guardian to make health-care decisions for the ward, in accordance with the provisions of Section 45-5-312 NMSA 1978, after notice to the ward and any agent."

Section 9. Section 24-7A-6.1 NMSA 1978 (being Laws 1997, Chapter 168, Section 13) is amended to read:

"24-7A-6.1. DECISIONS FOR UNEMANCIPATED MINORS.--

A. Except as otherwise provided by law, a parent or guardian of an unemancipated minor may make that minor's health-care decisions.

B. A parent or guardian of an unemancipated minor shall have the authority to withhold or withdraw life-sustaining treatment for the unemancipated minor, subject to the provisions of this section and the standards for surrogate decision making for adults provided for in the Uniform Health-Care Decisions Act.

C. Subject to the provisions of Subsection B of this section, if an unemancipated minor has capacity sufficient to understand the nature of that unemancipated minor's medical condition, the risks and benefits of treatment and the contemplated decision to withhold or withdraw life-sustaining treatment, that unemancipated minor shall have the authority to withhold or withdraw life-sustaining treatment.

D. For purposes of Subsection C of this section, a determination or certification of the mental and emotional capacity of an unemancipated minor shall be determined by two qualified health-care professionals, one of whom shall be the unemancipated minor's primary physician and the other of whom shall be a physician that works with unemancipated minors of the minor's age in the ordinary course of that physician's health-care practice. If the unemancipated minor lacks capacity due to mental illness or developmental disability, one of the qualified health-care professionals, including a psychologist, shall be a person whose training and expertise aid in the assessment of functional impairment and who shall make a written determination or certification regarding the capacity of the unemancipated minor pursuant to Subsection G of Section 24-7A-11 NMSA 1978.

E. If the unemancipated minor's primary physician has reason to believe that a parent or guardian of an unemancipated minor, including a non-custodial parent, has not been informed of a decision to withhold or withdraw life-sustaining treatment, the primary physician shall make reasonable efforts to determine if the uninformed parent or guardian has maintained substantial and continuous contact with the unemancipated minor and, if so, shall make reasonable efforts to notify that parent or guardian before implementing a decision.

F. If there is disagreement regarding the decision to withhold or withdraw life-sustaining treatment for an unemancipated minor, the provisions of Section 24-7A-11 NMSA 1978 shall apply.

G. For purposes of this section, "unemancipated minor" means a person at or under the age of fifteen."

Section 10. Section 24-7A-7 NMSA 1978 (being Laws 1995, Chapter 182, Section 7, as amended) is amended to read:

"24-7A-7. OBLIGATIONS OF HEALTH-CARE PROVIDER.--

A. Before implementing a health-care decision made for a patient, a supervising health-care provider shall promptly communicate to the patient the decision made and the identity of the person making the decision.

B. A supervising health-care provider who knows of the existence of an advance health-care directive or advance directive for mental health treatment, a revocation of an advance health-care directive or advance directive for mental health treatment, a challenge to a determination or certification of lack of capacity or a designation or disqualification of a surrogate shall promptly record its existence in the patient's health-care record and, if it is in writing, shall request a copy and, if one is furnished, shall arrange for its maintenance in the health-care record.

C. A qualified health-care professional may disclose an advance health-care directive or advance directive for mental health treatment to other qualified health-care professionals only when it is determined that disclosure is necessary to give effect to or provide treatment in accordance with an individual instruction.

[C.] D. A supervising health-care provider who makes or is informed of a written determination or certification pursuant to Subsection G of Section 24-7A-11 NMSA 1978 that a patient lacks or has recovered capacity or that another condition exists that affects an individual instruction or the authority of an agent, guardian or surrogate shall promptly record the determination in the patient's health-care record and communicate the determination or certification to the patient and to any person then authorized to make health-care decisions for the patient.

[D.] E. Except as provided in Subsections [E and] F and G of this section, a health-care provider or health-care institution providing care to a patient shall comply:

(1) before and after the patient is determined to lack capacity, with an individual instruction of the patient made while the patient had capacity;

(2) with a reasonable interpretation of [that] the individual instruction made by a person then authorized to make health-care decisions for the patient; and

(3) with a health-care decision for the patient that is not contrary to an individual instruction of the patient and is made by a person then authorized to make health-care decisions for the patient, to the same extent as if the decision had been made by the patient while having capacity.

[E.] F. A health-care provider may decline to comply with an individual instruction or health-care decision for reasons of conscience. A health-care institution may decline to comply with an individual instruction or health-care decision if the instruction or decision is contrary to a policy of the health-care institution that is expressly based on reasons of conscience and if the policy was timely communicated to the patient or to a person then authorized to make health-care decisions for the patient.

[F.] G. A health-care provider or health-care institution may decline to comply with an individual instruction or health-care decision that requires medically ineffective health care or health care contrary to generally accepted health-care standards applicable to the health-care provider or health-care institution. "Medically ineffective health care" means treatment that would not offer the patient any significant benefit, as determined by a physician.

[G.] H. A health-care provider or health-care institution that declines to comply with an individual instruction or health-care decision shall:

(1) promptly so inform the patient, if possible, and any person then authorized to make health-care decisions for the patient;

(2) provide continuing care to the patient until a transfer can be effected; and

(3) unless the patient or person then authorized to make health-care decisions for the patient refuses assistance, immediately make all reasonable efforts to assist in the transfer of the patient to another health-care provider or health-care institution that is willing to comply with the individual instruction or decision.

[H.] I. A health-care provider or health-care institution [may] shall not require or prohibit the execution or revocation of an advance health-care directive or advance directive for mental health treatment as a condition for providing health care.

[I.] J. The Uniform Health-Care Decisions Act does not require or permit a health-care institution or health-care provider to provide any type of health care for which the health-care institution or health-care provider is not licensed, certified or otherwise authorized or permitted by law to provide."

Section 11. Section 24-7A-8 NMSA 1978 (being Laws 1995, Chapter 182, Section 8) is amended to read:

"24-7A-8. HEALTH-CARE INFORMATION.--Unless otherwise specified in an advance health-care directive or advance directive for mental health treatment, a person then authorized to make health-care decisions for a patient has the same rights as the patient to request, receive, examine, copy and consent to the disclosure of medical or any other health-care information."

Section 12. Section 24-7A-9 NMSA 1978 (being Laws 1995, Chapter 182, Section 9, as amended) is amended to read:

"24-7A-9. IMMUNITIES.--

A. A health-care provider or health-care institution acting in good faith and in accordance with generally accepted health-care standards applicable to the health-care provider or health-care institution is not subject to civil or criminal liability or to discipline for unprofessional conduct for:

(1) complying or attempting to comply with a health-care decision of a person apparently having authority to make a health-care decision for a patient, including a decision to withhold or withdraw health care or make an anatomical gift;

(2) declining to comply with a health-care decision of a person based on a belief that the person then lacked authority;

(3) complying or attempting to comply with an advance health-care directive or advance directive for mental health treatment and assuming that the directive was valid when made and has not been revoked or terminated;

(4) declining to comply with a health-care directive as permitted by Subsection [E or] F or G of Section

24-7A-7 NMSA 1978; or

(5) complying or attempting to comply with any other provision of the Uniform Health-Care Decisions Act.

B. An individual acting as agent, guardian or surrogate under the Uniform Health-Care Decisions Act is not subject to civil or criminal liability or to discipline for unprofessional conduct for health-care decisions made in good faith."

Section 13. Section 24-7A-10 NMSA 1978 (being Laws 1995, Chapter 182, Section 10, as amended) is amended to read:

"24-7A-10. STATUTORY DAMAGES.--

A. A health-care provider or health-care institution that intentionally violates the Uniform Health-Care Decisions Act is subject to liability to the aggrieved individual for damages of five thousand dollars ($5,000) or actual damages resulting from the violation, whichever is greater, plus reasonable attorney fees.

B. A person who intentionally falsifies, forges, conceals, defaces or obliterates an individual's advance health-care directive or advance directive for mental health treatment or a revocation of an advance health-care directive or advance directive for mental health treatment without the individual's consent or a person who coerces or fraudulently induces an individual to give, revoke or not give or revoke an advance health-care directive or advance directive for mental health treatment is subject to liability to that individual for damages of five thousand dollars ($5,000) or actual damages resulting from the action, whichever is greater, plus reasonable attorney fees.

C. The damages provided in this section are in addition to other types of relief available under other law, including civil and criminal law and law providing for disciplinary procedures."

Section 14. Section 24-7A-11 NMSA 1978 (being Laws 1995, Chapter 182, Section 11, as amended) is amended to read:

"24-7A-11. CAPACITY.--

A. The Uniform Health-Care Decisions Act does not affect the right of an individual to make health-care decisions while having capacity to do so.

B. An individual is presumed to have capacity to make a health-care decision, to give or revoke an advance health-care directive or advance directive for mental health treatment and to designate a surrogate.

C. Unless otherwise specified in a written advance health-care directive [a] or advance directive for mental health treatment, a written determination or certification pursuant to Subsection G of this section that an individual lacks or has recovered capacity or that another condition exists that affects an individual instruction or the authority of an agent shall be made by two qualified health-care professionals, one of whom shall be the primary physician, including a psychologist. If the lack of capacity is determined to exist because of mental illness or developmental disability, one of the qualified health-care professionals shall be a person whose training and expertise aid in the assessment of functional impairment.

D. An individual shall not be determined to lack capacity solely on the basis that the individual chooses not to accept the treatment recommended by a health-care provider.

E. An individual, at any time, may challenge a determination that the individual lacks capacity by a signed writing or by personally informing a health-care provider of the challenge. A health-care provider who is informed by the individual of a challenge shall promptly communicate the fact of the challenge to the supervising health-care provider and to any health-care institution at which the individual is receiving care. Such a challenge shall prevail unless otherwise ordered by the court in a proceeding brought pursuant to the provisions of Section 24-7A-14 NMSA 1978.

F. A determination of lack of capacity under the Uniform Health-Care Decisions Act shall not be evidence of incapacity under the provisions of Article 5 of the Uniform Probate Code.

G. A principal appearing to require mental health treatment shall be examined by two persons, who shall be a physician or qualified health-care professional and a psychologist. If after the examination the principal is determined to be incapable and is in need of mental health treatment, a written certification, substantially in the form provided in Subsection H of this section, of the principal's condition shall be made a part of the principal's medical record.

H. The following certification of the examination of a principal determining whether the principal is in need of mental health treatment and whether the principal is or is not incapable may be used by examiners:

"OPTIONAL EXAMINER'S CERTIFICATION

We, the undersigned, have made an examination of___________, and do hereby certify that we have made a careful personal examination of the actual condition of the person and on such examination we find that __________________:

1. (Is) (Is not) in need of mental health treatment; and

2. (Is) (Is not) incapable to participate in decisions about (her)(his) mental health treatment.

The facts and circumstances on which we base our opinions are stated in the following report of symptoms and history of case, which is hereby made a part hereof.

According to the advance directive for mental health treatment, (name of patient)_____________________, wishes to receive mental health treatment in accordance with the preferences and instructions stated in the advance directive for mental health treatment.

We are duly licensed to practice in this state of New Mexico, are not related to ___________by blood or marriage and have no interest in her/his estate.

Witness our hands this _______day of ____________, 20___

_________________________________M.D., D.O., Ph.D., Other

Subscribed and sworn to before me this ________day of _____________________, 20____

______________________________

Notary Public

REPORT OF SYMPTOMS AND HISTORY OF CASE BY EXAMINERS

1. GENERAL

Complete name__________________________________

Place of residence_____________________________

Sex________Ethnicity_____________________

Age________

Date of Birth___________________________

2. STATEMENT OF FACTS AND CIRCUMSTANCES

Our determination that the principal (is)(is not) in need for mental health treatment is based on the following:

______________________________________________________________________________________________________________________________

Our determination that the principal (is)(is not) incapable of participating in mental health treatment decisions is based on the following:

______________________________________________________________________________________________________________________________

3. NAME AND RELATIONSHIPS OF FAMILY MEMBERS/OTHERS TO BE NOTIFIED

Other data__________________________________________________

Dated at ________________, New Mexico, this _______day of_______________, 20____

_________________________________M.D., D.O., Ph.D., Other

Address

_________________________________M.D., D.O., Ph.D., Other

Address"."

Section 15. Section 24-7A-12 NMSA 1978 (being Laws 1995, Chapter 182, Section 12) is amended to read:

"24-7A-12. EFFECT OF COPY.--A copy of a written advance health-care directive or advance directive for mental health treatment, revocation of an advance health-care directive or advance directive for mental health treatment or designation or disqualification of a surrogate has the same effect as the original."

Section 16. Section 24-7A-13 NMSA 1978 (being Laws 1995, Chapter 182, Section 13, as amended) is amended to read:

"24-7A-13. EFFECT OF THE UNIFORM HEALTH-CARE DECISIONS ACT.--

A. The Uniform Health-Care Decisions Act does not create a presumption concerning the intention of an individual who has not made or who has revoked an advance health-care directive or advance directive for mental health treatment.

B. Death resulting from the withholding or withdrawal of health care in accordance with the Uniform Health-Care Decisions Act does not for any purpose:

(1) constitute a suicide, a homicide or other crime; or

(2) legally impair or invalidate a governing instrument, notwithstanding any term of the governing instrument to the contrary. "Governing instrument" means a deed, will, trust, insurance or annuity policy, account with POD (payment on death designation), security registered in beneficiary form (TOD), pension, profit-sharing, retirement, employment or similar benefit plan, instrument creating or exercising a power of appointment or a dispositive, appointive or nominative instrument of any similar type.

C. The Uniform Health-Care Decisions Act does not authorize mercy killing, assisted suicide, euthanasia or the provision, withholding or withdrawal of health care, to the extent prohibited by other statutes of this state.

D. The Uniform Health-Care Decisions Act does not authorize or require a health-care provider or health-care institution to provide health care contrary to generally accepted health-care standards applicable to the health-care provider or health-care institution.

E. The Uniform Health-Care Decisions Act does not authorize an agent or surrogate to consent to the admission of an individual to a mental health-care facility. If the individual's written advance health-care directive or advance directive for mental health treatment expressly permits treatment in a mental health-care facility, the agent or surrogate may present the individual to a facility for evaluation for admission.

F. The Uniform Health-Care Decisions Act does not affect other statutes of this state governing treatment for mental illness of an individual admitted to a mental health-care institution, including involuntary commitment to a mental health-care institution for mental illness."

Section 17. Section 24-7A-16 NMSA 1978 (being Laws 1995, Chapter 182, Section 16, as amended) is amended to read:

"24-7A-16. TRANSITIONAL PROVISIONS.--

A. An advance health-care directive or advance directive for mental health treatment is valid for purposes of the Uniform Health-Care Decisions Act if it complies with the provisions of that act, regardless of when or where executed or communicated.

B. The Uniform Health-Care Decisions Act does not impair a guardianship, living will, durable power of attorney, right-to-die statement or declaration or other advance directive for health-care decisions that is in effect before July 1, 1995.

C. Any advance directive, durable power of attorney for health care decisions, living will, right-to-die statement or declaration or similar document that is executed in another state or jurisdiction in compliance with the laws of that state or jurisdiction shall be deemed valid and enforceable in this state to the same extent as if it were properly made in this state."

Section 18. Section 24-7A-17 NMSA 1978 (being Laws 1995, Chapter 182, Section 17) is amended to read:

"24-7A-17. SHORT TITLE.--[Sections 1 through 17 of this act] Chapter 24, Article 7A NMSA 1978 may be cited as the "Uniform Health-Care Decisions Act"."

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