HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR
HOUSE BILL 174
47th legislature - STATE OF NEW MEXICO - second session, 2006
AN ACT
RELATING TO HEALTH CARE; ENACTING KENDRA'S LAW; PROVIDING FOR ASSISTED OUTPATIENT TREATMENT SERVICES TO TREAT MENTAL ILLNESS; PROVIDING FOR PENALTIES.
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. "incapacitated person" means any person who is impaired by reason of mental illness to the extent that the person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the proposed nature of treatment and its consequences or his person;
E. "mental illness" means a substantial disorder of thought, mood or behavior that impairs that person's judgment, but does not mean developmental disability;
F. "patient" means a person receiving assisted outpatient treatment pursuant to a court order;
G. "provider" means an individual or organization licensed, certified or otherwise authorized or permitted by law to provide diagnosis or mental health treatment in the ordinary course of business or practice of a profession; and
H. "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) whose lack of compliance with treatment for mental illness that, prior to the filing of the petition, has:
(a) at least twice within the last forty-eight months, been a significant factor in necessitating hospitalization or necessitating receipt of services in a forensic or other mental health unit or a correctional facility;
(b) resulted in one or more acts of serious violent behavior toward self or others or threats of, or attempts at, serious physical harm to self or others within the last forty-eight months;
(c) resulted in the person being hospitalized or incarcerated for at least six months and the person is to be discharged or released within the next thirty days; or
(d) resulted in the person being hospitalized or incarcerated for a period of six months or more and the person was discharged or released within the past sixty days;
(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 the person or another person; and
(7) will likely benefit from assisted outpatient treatment.
B. If the person has an advance directive or personal representative, agent, surrogate, guardian or individual designated by the person to make health care decisions, the court shall take into account any advance directives or directions by the personal representative, agent, surrogate, guardian or individual designated by the person in determining the written treatment plan. Nothing in Kendra's Law shall preclude a person with a personal representative, agent, surrogate, guardian or individual designated by the person from being subject to an order authorizing assisted outpatient treatment.
C. A court may not order assisted outpatient treatment if it finds a need for involuntary 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 and 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 or has supervised or treated the subject for mental illness within the past forty-eight months;
(7) a provider or 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 include:
(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) whether 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 believe, based on the most reliable information available to the physician, 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 of service or attempted service. A copy of the petition and notice of hearing shall be served in the same manner as a summons on the petitioner, the subject, the physician whose affirmation or affidavit accompanied the petition, the provider and any other person the court deems advisable.
B. The subject shall be represented by counsel at all stages of the proceedings.
C. If the subject fails to appear at the hearing after notice, and significant 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. Testimony shall include:
(1) 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) the recommended assisted outpatient treatment and the rationale for the recommended assisted outpatient treatment; and
(3) if the recommended assisted outpatient treatment includes medication, the types or classes of medication that should be authorized, the beneficial and detrimental physical and mental effects of such medication and 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 and the court finds reasonable grounds to believe that the allegations of the petition are true, the court may direct a law enforcement officer to take the subject into custody and transport the subject to a provider 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. No subject taken into custody pursuant to this subsection shall be detained longer than necessary or 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) identified by a 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 take into account, if existing, an advance directive and 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 an assertive community treatment team to provide care coordination and assisted outpatient treatment services recommended by the physician. 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. Testimony explaining the written treatment program shall include:
(1) 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) if the recommended assisted outpatient treatment includes medication, the types or classes of medication that should be authorized, the beneficial and detrimental physical and mental effects of such medication and whether such medication should be self-administered or should be administered by an authorized professional.
Section 8. DISPOSITION.--
A. If after hearing all relevant evidence, the court finds the subject to be an incapacitated person, that grounds for assisted outpatient treatment have been established by clear and convincing evidence and that 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 one or more of the following categories:
(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.
B. If after hearing all relevant evidence, the court finds the subject to be an incapacitated person, that grounds for assisted outpatient treatment services have been established by clear and convincing proof and that 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 7 of Kendra's Law, the court shall order the provider to provide the court with a written treatment plan and testimony as soon as practicable. Upon receiving the written treatment plan and testimony, the court may order assisted outpatient treatment as provided in Subsection A of this section.
C. 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.
D. 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.
E. For purposes of this section, "material change" means an addition or deletion of a category of assisted outpatient treatment or a substantial deviation without the patient's consent from the terms of the existing order relating to the administration or type 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 seek, prior to the expiration of the period of assisted outpatient treatment ordered by the court, 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 a physician, who 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. FAILURE TO COMPLY WITH ASSISTED OUTPATIENT TREATMENT.--
A. A physician may determine that a patient has failed to comply with assisted outpatient treatment 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;
(3) the patient may be in need of involuntary admission to a hospital for immediate observation, care and treatment; and
(4) 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.
B. Upon the request of a physician, a provider may 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.
C. If deemed necessary and upon the request of a physician, a provider may request the aid of a law enforcement officer to take the patient into custody and accompany the physician in transporting 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 may carry out a provider's directive pursuant to this section.
D. 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 assisted outpatient 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 the Mental Health and Developmental Disabilities Code 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 12. SEQUESTRATION AND CONFIDENTIALITY OF RECORDS.--
A. A petition initiating proceedings pursuant to the provisions of Kendra's Law shall be entitled "In the Matter of ...........................", and shall set forth with specificity:
(1) the facts necessary to invoke the jurisdiction of the court;
(2) the name, birth date and residence address of the subject of the petition; and
(3) any other substantive matters required by Kendra's Law to be set forth in the petition.
B. All records or information concerning a party to a proceeding pursuant to Kendra's Law, including all pleadings and other documents filed in the matter, social records, diagnostic evaluations, psychiatric or psychologic reports, videotapes, transcripts and audio recordings of interviews and examinations, recorded testimony and the assisted outpatient treatment plan that was produced or obtained as part of a proceeding pursuant to Kendra's Law shall be confidential and closed to the public.
C. The records described in Subsection B of this section shall be disclosed only to the parties and:
(1) court personnel;
(2) court-appointed special advocates;
(3) the subject's attorney, personal representative, agent, surrogate, guardian or individual designated by the person to make health care decisions;
(4) law enforcement officials requested by the court to perform any duties or functions related to the subject as deemed appropriate by the court;
(5) providers involved in the evaluation or treatment of the subject; or
(6) any other person or entity, by order of the court, having a legitimate interest in the case or the work of the court.
D. Whoever intentionally and unlawfully releases any information or records closed to the public pursuant to Kendra's Law or releases or makes other unlawful use of the records in violation of that act is guilty of a petty misdemeanor.
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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