HOUSE BILL 174
47th legislature - STATE OF NEW MEXICO - second session, 2006
INTRODUCED BY
Joni Marie Gutierrez
AN ACT
RELATING TO HEALTH CARE; ENACTING KENDRA'S LAW; PROVIDING FOR ASSISTED OUTPATIENT TREATMENT SERVICES TO TREAT MENTAL ILLNESS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as "Kendra's Law".
Section 2. DEFINITIONS.--As used in Kendra's Law:
A. "assisted outpatient treatment" means outpatient services ordered by a court, including case management services or assertive community treatment team services, prescribed to treat a person's mental illness and to assist a person in living and functioning in the community or to attempt to prevent a relapse or deterioration that may reasonably be predicted to result in harm to the person or another, suicide or the need for hospitalization;
B. "assisted outpatient treatment program" means a program that arranges and coordinates the provision of assisted outpatient treatment, including monitoring treatment compliance by patients, evaluating and addressing the conditions or needs of assisted outpatients and ensuring compliance with court orders;
C. "department" means the department of health;
D. "mental illness" means a substantial disorder of thought, mood or behavior that afflicts a person and that impairs that person's judgment, but not to the extent that the person does not know what the person is doing or does not understand the consequences of the person's actions;
E. "patient" means a person receiving assisted outpatient treatment pursuant to a court order;
F. "provider" means a public or private health care facility or health care practitioner licensed to provide health care services in New Mexico; and
G. "subject" means a person who is alleged in a petition, filed pursuant to the provisions of Kendra's Law, to meet the criteria for assisted outpatient treatment.
Section 3. PROVIDERS--OUTPATIENT TREATMENT PROGRAM.--A provider may operate, direct and supervise an assisted outpatient treatment program pursuant to Kendra's Law upon approval by the department. Providers may coordinate efforts to provide joint assisted outpatient treatment programs. Nothing in Kendra's Law shall be construed to affect the ability of a provider to receive, admit or retain patients who otherwise meet the provisions of Kendra's Law regarding receipt, retention or admission.
Section 4. ASSISTED OUTPATIENT TREATMENT--CRITERIA.--
A. A person may be ordered to obtain assisted outpatient treatment if the court finds that the person:
(1) is eighteen years of age or older;
(2) is suffering from a mental illness;
(3) is unlikely to survive safely in the community without supervision, based on a clinical determination;
(4) has a history of lack of compliance with treatment for mental illness;
(5) is unlikely, as a result of mental illness, to voluntarily participate in the recommended treatment pursuant to the treatment plan;
(6) in view of the person's treatment history and current behavior, is in need of assisted outpatient treatment in order to prevent a relapse or deterioration that would be likely to result in serious harm to himself or another person; and
(7) will likely benefit from assisted outpatient treatment.
B. If the person has an authorized representative, the court shall take into account any directions included by the authorized representative in determining the written treatment plan. Nothing in Kendra's Law shall preclude a person with an authorized representative from being subject to a petition for an order authorizing assisted outpatient treatment.
C. A court may order assisted outpatient treatment if it does not find a need for commitment pursuant to the Mental Health and Developmental Disabilities Code.
Section 5. PETITION TO THE COURT.--
A. A petition for an order authorizing assisted outpatient treatment may be filed in the district court in the county in which the subject is present or reasonably believed to be present. A petition shall be filed only by the following persons:
(1) a person eighteen years of age or older who resides with the subject;
(2) the parent or spouse of the subject;
(3) the sibling or child of the subject, provided that the sibling or child is eighteen years of age or older;
(4) the director of a hospital where the subject is hospitalized;
(5) the director of a public or charitable organization or agency or a home where the subject resides that provides mental health services to the subject;
(6) a qualified psychiatrist who either supervises the treatment of or treats the subject for a mental illness;
(7) a provider or the social services official of the city or county where the subject is present or reasonably believed to be present; or
(8) a parole officer or probation officer assigned to supervise the subject.
B. The petition shall state:
(1) each criterion for assisted outpatient treatment as set forth in Section 4 of Kendra's Law;
(2) facts that support the petitioner's belief that the subject meets each criterion; provided that the hearing on the petition need not be limited to the stated facts; and
(3) that the subject is present or is reasonably believed to be present within the county where the petition is filed.
C. The petition shall be accompanied by an affidavit of a physician, who shall not be the petitioner, and shall state that:
(1) the physician has personally examined the subject no more than ten days prior to the filing of the petition, that the physician recommends assisted outpatient treatment for the subject and that the physician is willing and able to testify at the hearing on the petition; or
(2) no more than ten days prior to the filing of the petition, the physician or the physician's designee has made appropriate attempts to elicit the cooperation of the subject but has not been successful in persuading the subject to submit to an examination, that the physician has reason to suspect that the subject meets the criteria for assisted outpatient treatment and that the physician is willing and able to examine the subject and testify at the hearing on the petition.
Section 6. HEARING--EXAMINATION BY A PHYSICIAN.--
A. Upon receipt of the petition, the court shall fix a date for a hearing no later than seven days after the date the petition was filed. A copy of the petition and notice of hearing, including the date fixed by the court and appointed counsel, shall be served on the petitioner, the subject, the physician whose affirmation or affidavit accompanied the petition, the appropriate provider and any other person the court deems advisable. Adjournments shall be permitted only for good cause shown. In granting adjournments, the court shall consider the need for further examination by a physician or the potential need to provide assisted outpatient treatment expeditiously.
B. The subject shall be represented by counsel at all stages of the proceeding regardless of the subject's wishes. When a subject has not retained his own attorney and is unable to do so, the court shall appoint counsel to represent him. When appointing counsel, the court shall give preference to nonprofit organizations offering representation to mentally ill and developmentally disabled persons. When a subject is not indigent, he shall be liable for the cost of his legal representation. At the hearing, the subject shall have the right to present evidence and to cross-examine witnesses. A complete record of the hearing shall be made, and there shall be a right to an expeditious appeal.
C. At the hearing, the court shall hear all relevant testimony and may examine the subject in open court or, if advisable, may examine the subject out of court. If the subject fails to appear at the hearing, and attempts to elicit the attendance of the subject have failed, the court may conduct the hearing in the subject's absence. If the hearing is conducted without the subject present, the court shall set forth the factual basis for conducting the hearing without the presence of the subject.
D. The court shall not order assisted outpatient treatment for the subject unless a physician, who has personally examined the subject of the petition within ten days prior to the filing of the petition, testifies in person at the hearing. The physician shall:
(1) state the facts that support the allegation that the subject meets each criterion for assisted outpatient treatment and that the treatment is the least restrictive alternative;
(2) state the recommended assisted outpatient treatment and the rationale for the recommended assisted outpatient treatment; and
(3) describe, if the recommended assisted outpatient treatment includes medication, the types or classes of medication that should be authorized and the beneficial and detrimental physical and mental effects of such medication. In addition, the physician shall recommend whether such medication should be self-administered or should be administered by an authorized professional.
E. If the subject has refused to be examined by a physician, the court may request that the subject consent to an examination by a physician appointed by the court. If the subject does not consent and the court finds reasonable grounds to believe that the allegations of the petition are true, the court may order a law enforcement officer to take the subject into custody and transport the subject to a hospital for examination by a physician. The examination of the subject may be performed by the physician whose affidavit accompanied the petition. If the examination is performed by another physician, the examining physician shall be authorized to consult with the physician whose affidavit accompanied the petition regarding the allegations in the petition and whether the subject meets the criteria for assisted outpatient treatment. No subject taken into custody pursuant to this subsection shall be detained longer than twenty-four hours.
Section 7. WRITTEN LICENSED PHYSICIAN TREATMENT PLAN.--
A. The court shall not order assisted outpatient treatment unless an examining physician:
(1) appointed by the appropriate provider develops and provides to the court a proposed written treatment plan; and
(2) testifies to explain the written proposed treatment plan.
B. In developing a treatment plan, the physician shall provide the following persons with an opportunity to actively participate in the development of the plan:
(1) the subject;
(2) the treating physician; and
(3) upon the request of the subject, an individual significant to the subject, including any relative, close friend or individual otherwise concerned with the welfare of the subject. If the petitioner is a provider, the plan shall be provided to the court no later than the date of the hearing on the petition.
C. The written treatment plan shall include case management services or assertive community treatment teams to provide care coordination and all types of assisted outpatient treatment services that the physician recommends the subject should receive. If the written treatment plan includes medication, it shall state whether such medication should be self-administered or should be administered by an authorized professional and shall specify type and dosage range of medication most likely to provide maximum benefit for the subject. If the written treatment plan includes alcohol or substance abuse counseling and treatment, such plan may include a provision requiring relevant testing for either alcohol or illegal substances; provided that the physician's clinical basis for recommending such plan provides sufficient facts for the court to find that:
(1) the subject has a history of alcohol or substance abuse that is clinically related to the mental illness; and
(2) such testing is necessary to prevent a relapse or deterioration that would be likely to result in serious harm to the subject or others.
D. An examining physician's testimony explaining the written treatment program shall:
(1) state the recommended assisted outpatient treatment, the rationale for the recommended assisted outpatient treatment and the facts that establish that such treatment is the least restrictive alternative; and
(2) describe, if the recommended assisted outpatient treatment includes medication, the types or classes of medication that should be authorized and the beneficial and detrimental physical and mental effects of such medication. In addition, the physician shall recommend whether such medication should be self-administered or should be administered by an authorized professional. If the petitioner is a provider, the testimony shall be given at the hearing on the petition.
Section 8. DISPOSITION.--
A. If after hearing all relevant evidence, the court finds that grounds for assisted outpatient treatment have not been established and the subject does not meet the criteria for assisted outpatient treatment, the court shall dismiss the petition.
B. If after hearing all relevant evidence, the court finds that grounds for assisted outpatient treatment have been established by clear and convincing proof and there is no appropriate and feasible less restrictive alternative, it shall be authorized to order the subject to receive assisted outpatient treatment for an initial period not to exceed six months. In its order, the court shall state the assisted outpatient treatment that the subject is to receive. A court may order the subject to self-administer psychotropic drugs or accept the administration of such drugs by an authorized professional as part of an assisted outpatient treatment program. The order may specify the type and dosage range of such psychotropic drugs and shall be effective for the duration of the subject's assisted outpatient treatment. The court may not order treatment that has not been recommended by the examining physician and included in the written treatment plan for assisted outpatient treatment. Assisted outpatient treatment may include:
(1) medication;
(2) periodic blood tests or urinalysis to determine compliance with prescribed medications;
(3) individual or group therapy;
(4) day or partial day programming activities;
(5) educational and vocational training or activities;
(6) alcohol or substance abuse treatment and counseling and periodic tests for the presence of alcohol or illegal drugs for persons with a history of alcohol or substance abuse; or
(7) supervision of living arrangements.
C. If after hearing all relevant evidence, the court finds that grounds for assisted outpatient treatment services have been established by clear and convincing proof and there is no appropriate and feasible less restrictive alternative, but the court has yet to be provided with a written proposed treatment plan and testimony pursuant to Section 9 of Kendra's Law, the court shall order the provider to provide the court with a written treatment plan and testimony no later than three days after the date of the order. Upon receiving the written treatment plan and testimony, the court may order assisted outpatient treatment as provided in Subsection B of this section.
D. The determination by a court that a subject is in need of assisted outpatient treatment shall not be construed as or deemed to be a determination that the subject is incapacitated.
E. If the petitioner is a provider that operates an assisted outpatient treatment program, the court order shall direct the provider to provide or arrange for all assisted outpatient treatment for the patient throughout the period of the order.
F. The provider shall apply to the court for approval before instituting a proposed material change in the assisted outpatient treatment order unless such change is contemplated in the order. An application for approval shall be served upon those persons required to be served with notice of a petition for an order authorizing assisted outpatient treatment pursuant to this section. Nonmaterial changes may be instituted by the assisted outpatient treatment program without court approval.
G. For purposes of this section, "material change" means an addition or deletion of a category of assisted outpatient treatment from the order of the court or any deviation without the patient's consent from the terms of an existing order relating to the administration of psychotropic drugs.
Section 9. APPLICATIONS FOR ADDITIONAL PERIODS OF TREATMENT.--
A. If a provider determines that the condition of a patient requires further assisted outpatient treatment, the provider shall apply, prior to the expiration of the period of assisted outpatient treatment ordered by the court, for a second or subsequent order authorizing continued assisted outpatient treatment for a period not to exceed one year from the date of the second or subsequent order. If the court's disposition of the application does not occur prior to the expiration date of the current order, the current order shall remain in effect until the court's disposition. An order for an additional period of treatment shall be obtained pursuant to the provisions of Kendra's Law.
B. A court order requiring periodic blood tests or urinalysis for the presence of alcohol or illegal drugs shall be subject to review after six months by the physician who developed the written treatment plan or another physician designated by the provider, and the physician shall be authorized to terminate such blood tests or urinalysis without further action by the court.
Section 10. APPLICATION FOR AN ORDER TO STAY, VACATE OR MODIFY.--In addition to any other right or remedy available by law with respect to the order for assisted outpatient treatment, the patient, the patient's counsel or anyone acting on the patient's behalf may apply to the court to stay, vacate or modify the order. A copy of the application shall be served on the appropriate provider and the original petitioner.
Section 11. APPEALS.--Appeals taken pursuant to Kendra's Law shall be taken to the court of appeals according to the rules of appellate procedure of the supreme court.
Section 12. FAILURE TO COMPLY WITH ASSISTED OUTPATIENT TREATMENT.--
A. A physician may request a provider to direct the removal of a patient to an appropriate hospital for an examination to determine if the patient has a mental illness for which hospitalization is necessary if, in the clinical judgment of the physician:
(1) the patient has failed or has refused to comply with the treatment ordered by the court;
(2) efforts were made to solicit compliance; and
(3) the patient may be in need of involuntary admission to a hospital for immediate observation, care and treatment.
B. If the patient refuses to take medications or refuses to take or fails a blood test, urinalysis or alcohol or drug test as required by the court order, the physician may consider such refusal or failure when determining whether the assisted outpatient is in need of an examination to determine whether the patient has a mental illness for which hospitalization is necessary.
C. Upon the request of a physician, a provider may direct a law enforcement officer to take the patient into custody and transport the patient to the hospital operating the assisted outpatient treatment program or to any hospital authorized by the department to receive such persons. A law enforcement officer shall carry out a provider's directive pursuant to this section.
D. Upon the request of a physician, a provider shall be authorized to take into custody and transport a patient to the hospital operating the assisted outpatient treatment program or to any other hospital authorized by the department to receive such persons. The patient may be retained for observation, care, treatment and further examination in the hospital for up to seventy-two hours to permit a physician to determine whether the patient has a mental illness and is in need of involuntary care and treatment pursuant to Kendra's Law. Any continued involuntary retention in a hospital beyond the initial seventy-two-hour period shall be in accordance with the provisions of Kendra's Law relating to the involuntary admission and retention of a person. If at any time during the seventy-two-hour period the person is determined not to meet the involuntary admission and retention provisions of Kendra's Law and the person does not agree to stay in the hospital as a voluntary or informal patient, the patient must be released.
E. A patient's failure to comply with an order of assisted outpatient treatment is not grounds for involuntary civil commitment or a finding of contempt of court.
Section 13. CRIMINAL PROSECUTION.--A person who makes a false statement or provides false information or false testimony in a petition or hearing pursuant to the provisions of Kendra's Law is subject to criminal prosecution.
Section 14. EDUCATIONAL MATERIALS.--The department, in consultation with the administrative office of the courts, shall prepare educational and training materials on the provisions of Kendra's Law that shall be made available to providers, judges, court personnel, law enforcement officials and the general public.
Section 15. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2006.
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