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AN ACT

RELATING TO HEALTH CARE; ENACTING THE MENTAL HEALTH CARE

TREATMENT DECISIONS ACT TO PROVIDE FOR MENTAL HEALTH TREATMENT

ADVANCE DIRECTIVES; PROVIDING PENALTIES.

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

Section 1. SHORT TITLE.--This act may be cited as the

"Mental Health Care Treatment Decisions Act".

Section 2. PURPOSE.--The purpose of the Mental Health

Care Treatment Decisions Act is to ensure appropriate care and

treatment of persons with behavioral health needs in the

community.

Section 3. DEFINITIONS.--As used in the Mental Health

Care Treatment Decisions Act:

A. "advance directive for mental health treatment"

means an individual instruction or power of attorney for

mental health treatment made pursuant to the Mental Health

Care Treatment Decisions Act;

B. "agent" means an individual designated in a

power of attorney for mental health treatment to make a mental

health treatment decision for the individual granting the

power;

C. "capacity" means an individual's ability to

understand and appreciate the nature and consequences of

proposed mental health treatment, including significant

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benefits and risks and alternatives to the proposed mental

health treatment, and to make and communicate an informed

mental health treatment decision. A written determination or

certification of lack of capacity shall be made only according

to the provisions of the Mental Health Care Treatment

Decisions Act;

D. "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. "guardian" means a judicially appointed

guardian having authority to make a mental health decision for

an individual;

F. "individual instruction" means an individual's

direction concerning a mental health treatment decision for

the individual, made while the individual has capacity, which

is to be implemented when the individual has been determined

to lack capacity;

G. "mental health treatment" means services

provided for the prevention of, amelioration of symptoms of or

recovery from mental illness or emotional disturbance,

including electroconvulsive treatment, treatment with

medication, counseling, rehabilitation services or evaluation

for admission to a facility for care or treatment of persons

with mental illness, if required;

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H. "mental health treatment decision" means a

decision made by an individual or the individual's agent or

guardian regarding the individual's 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, programs of medication and mental health treatment; and

(3) directions relating to mental health

treatment;

I. "mental health treatment facility" means an

institution, facility or agency licensed, certified or

otherwise authorized or permitted by law to provide mental

health treatment in the ordinary course of business;

J. "mental health treatment provider" or "health

care provider" means an individual 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;

K. "mental illness" means a substantial disorder

of a person's emotional process, thoughts or cognition that

grossly impairs judgment, behavior or capacity to recognize

reality, but "mental illness" does not mean a developmental

disability;

L. "power of attorney for mental health treatment"

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means the designation of an agent to make mental health

treatment decisions for the individual granting the power,

made while the individual has capacity;

M. "primary health care professional" means a

qualified health care professional designated by an individual

or the individual's agent or guardian to have primary

responsibility for the individual's health care or, in the

absence of a designation or if the designated qualified health

care professional is not reasonably available, a qualified

health care professional who undertakes that responsibility;

N. "principal" means an adult or emancipated minor

who, while having capacity, has made a power of attorney for

mental health treatment by which the adult or emancipated

minor delegates the right to make mental health treatment

decisions for that adult or emancipated minor to an agent;

O. "qualified health care professional" means a

licensed health care provider who is a physician, physician

assistant, nurse practitioner, nurse or psychologist;

P. "reasonably available" means able to be

contacted without undue effort and willing and able to act in

a timely manner considering the urgency of the patient's

mental health treatment needs;

Q. "supervising health care provider" means the

primary qualified health care professional or, if the primary

qualified health care professional is not reasonably

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available, the health care provider who has undertaken primary

responsibility for an individual's health care; and

R. "ward" means an adult or emancipated minor for

whom a guardian has been appointed.

Section 4. ADVANCE DIRECTIVE FOR MENTAL HEALTH

TREATMENT.--

A. An adult or emancipated minor, while having

capacity, has the right to make the adult or emancipated

minor's own mental health treatment decisions and may give an

individual instruction. The individual instruction may be

oral or written; if oral, it 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 mental health

treatment that may authorize the agent to make any mental

health treatment decision the principal could have made while

having capacity. The power of attorney for mental health

treatment shall be in writing signed by the principal and

witnessed pursuant to Subsections I and J of this section.

The power of attorney for mental health treatment shall remain

in effect notwithstanding the principal's later incapacity

under the Mental Health Care Treatment Decisions Act or

Article 5 of the Uniform Probate Code. The power of attorney

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for mental health treatment may include individual

instructions. Unless related to the principal by blood,

marriage or adoption, an agent may not be an attending

qualified health care professional or an employee of the

qualified health care professional or an owner, operator or

employee of a mental health treatment facility at which the

principal is receiving care.

C. Unless otherwise specified in a power of

attorney for mental health treatment, the authority of an

agent becomes effective only upon 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

directive for mental health treatment, written 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 the Mental Health Care

Treatment Decisions Act.

E. An agent shall make a mental health treatment

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,

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the agent shall consider the principal's personal values to

the extent known to the agent.

F. A mental health treatment decision made by an

agent for a principal is effective without judicial approval.

G. A written advance directive for mental health

treatment may include the individual's nomination of a choice

of guardian of the individual.

H. The fact that an individual has executed an

advance directive for mental health treatment shall not

constitute an indication of mental illness.

I. A written advance directive for mental health

treatment is valid only if it is signed by the principal and a

witness who is at least eighteen years of age and who attests

that the principal:

(1) is known to the witness;

(2) signed the advance directive for mental

health treatment in the witness' presence;

(3) appears to have capacity; and

(4) is not acting under duress, fraud or

undue influence.

J. For purposes of the advance directive for

mental health treatment, the witness shall not be:

(1) an agent of the principal;

(2) related to the principal by blood or

marriage;

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(3) entitled to any part of the principal's

estate or have a claim against the principal's estate;

(4) the attending qualified health care

professional; or

(5) an owner, operator or employee of a

mental health treatment facility at which the principal is

receiving care or of any parent organization of the mental

health treatment facility.

Section 5. CAPACITY.--

A. The Mental Health Care Treatment Decisions Act

does not affect the right of an individual to make mental

health treatment decisions while having the capacity to do so.

B. An individual is presumed to have capacity to

make a mental health treatment decision, to give an advance

directive for mental health treatment or to revoke an advance

directive for mental health treatment.

C. 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.

D. 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

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to any mental health treatment facility at which the

individual is receiving care. Such a challenge shall prevail

unless the agent or the treating mental health care provider

obtains an order in district court finding the principal does

not have the capacity to make mental health treatment

decisions.

E. A determination of lack of capacity under the

Mental Health Care Treatment Decisions Act shall not be

evidence of incapacity under the provisions of Article 5 of

the Uniform Probate Code.

F. A determination of incapacity shall only be

made by two persons, a qualified health care professional and

a mental health treatment provider. If after the examination

the principal is determined to lack capacity and is in need of

mental health treatment, a written certification,

substantially in the form provided in Subsection G of this

section, of the principal's condition shall be made a part of

the principal's medical record.

G. The following certification of the examination

of a principal determining whether the principal is in need of

mental health treatment and whether the principal does or does

not lack capacity 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

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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. (Does) (Does not) lack capacity 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

_________________________________ 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

I. GENERAL

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Complete name__________________________________

Place of residence_____________________________

Sex________ Ethnicity_____________________

Age________

Date of Birth___________________________

II. 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 does not have the

capacity to participate in the principal's mental health

treatment decisions is based on:

1. the principal's ability to understand and communicate the

nature of the proposed health care or mental health treatment

described as:

______________________________________________________________

______________________________________________________________

2. the principal's ability to understand and communicate the

consequences of the proposed health care or mental health

treatment described as:

______________________________________________________________

______________________________________________________________

3. the principal's ability to understand and communicate the

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significant benefits, risks and alternatives to the proposed

health care or mental health treatment described as:

______________________________________________________________

______________________________________________________________

4. the principal's ability to understand and communicate a

choice about the proposed health care or mental health

treatment described as:

______________________________________________________________

______________________________________________________________

III. 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 6. REVOCATION OF 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

shall be signed for the individual and be witnessed by two

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witnesses pursuant to Subsections I and J of Section 4 of the

Mental Health Care Treatment Decisions Act, each of whom has

signed at the direction of the individual and in the presence

of the individual and each other.

B. An individual, while having capacity, may

revoke all or part of an 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 mental health treatment provider, agent or

guardian who is informed of a revocation shall promptly

communicate the fact of the revocation to the supervising

health care provider and to any mental health treatment

facility 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 mental health treatment. 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 directive for mental health

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treatment that conflicts with an earlier 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 mental health treatment, an advance health-care

directive pursuant to the Uniform Health-Care Decisions Act

and an advance directive for mental health treatment shall be

treated separately. A revocation of a power of attorney for

mental health treatment shall not affect the validity of a

power of attorney.

Section 7. OPTIONAL FORM FOR ADVANCE DIRECTIVE FOR

MENTAL HEALTH TREATMENT.--

A. The form provided in Subsection E of this

section may be used to create an individual instruction

regarding mental health treatment. An individual may complete

or modify all or any part of the form. The Mental Health Care

Treatment Decisions Act governs the effect of this or any

other writing used to create an advance directive for mental

health treatment.

B. A principal may designate a capable person

eighteen years of age or older to act as an agent to make

mental health treatment decisions. An alternative agent may

also be designated to act as an agent if the original agent is

unable or unwilling to act at any time. An appointment of an

agent may be accomplished by using the form provided by

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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 primary health care professional, about

mental health treatment on behalf of the principal only when

the principal is certified to lack capacity and to require

mental health treatment as provided by the Mental Health Care

Treatment Decisions Act. 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 the best interest of the principal. The

agent may consent to evaluation for admission 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 renounce the agent's authority by

giving notice to the principal. If a principal lacks

capacity, the agent may renounce the agent's authority by

giving notice to the named alternative agent, if any, or, if

none, to the attending qualified health care professional or

health care provider. The primary health care professional 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

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treatment may be executed by using the following optional

form, completed or modified to the extent desired by the

individual, and the form may be notarized:

"ADVANCE DIRECTIVE FOR MENTAL HEALTH TREATMENT

I, ______________________, being a person with capacity,

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. If a guardian or an agent

is appointed to make mental health decisions for me, I intend

this document to take precedence over other means of

ascertaining my wishes and interests.

The fact that I may have left blanks in this directive

does not affect its validity in any way. I intend that all

completed sections be followed. I intend this directive to

take precedence over any other mental health directives I have

previously executed, to the extent that they are inconsistent

with this document, or unless I expressly state otherwise in

either document.

I understand that I may revoke this directive in whole

or in part if I am a person with capacity. I understand that

I cannot revoke this directive if one qualified health care

professional and one mental health treatment provider find

that I am an incapacitated person, unless I successfully

challenge the determination of incapacity.

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I understand there are some circumstances where my

provider may not have to follow my directive, specifically, if

the treatment requested in this directive is infeasible or

unavailable, the facility or provider is not licensed or

authorized to provide the treatment requested or the directive

conflicts with other applicable law.

I thus do hereby declare:

I. DECLARATION FOR MENTAL HEALTH TREATMENT

If a mental health treatment provider and a qualified health

care professional, one of whom is my primary health care

professional, if reasonably available, 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 primary health care professional and a mental health

treatment provider, pursuant to the Mental Health Care

Treatment Decisions Act, to provide the mental health

treatment I have indicated below by my signature.

I understand that "mental health treatment" means services

provided for the prevention of, amelioration of symptoms of or

recovery from mental illness or emotional disturbance,

including but not limited to electroconvulsive treatment,

treatment with medication, counseling, rehabilitation services

or evaluation for admission to a facility for care or

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treatment of persons with mental illness, if required.

Preferences and Instructions About Treatment, Facilities and

Physicians

I would like the physician(s) named below to be involved in my

treatment decisions:

Dr. ____________________ Contact information__________________

Dr. ____________________ Contact information__________________

I do not wish to be treated by Dr.____________________________

Other Preferences:____________________________________________

Preferences and Instructions About Other Providers

I am receiving other treatment or care from providers who I

feel have an impact on my mental health care. I would like

the following treatment provider(s) to be contacted when this

directive is effective:

Name: __________________ Profession: _____________________

Contact Information ______________________

Name: __________________ Profession: _____________________

Contact Information ______________________

Preferences and Instructions About Medications for Mental

Health Treatment (initial and complete all that apply)

____ I consent, and authorize my agent to consent, to the

following medications: _________________________

____ I do not consent, and I do not authorize my agent to

consent, to the administration of the following medications:

______________________________________________________

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____ I am willing to take the medications excluded above if my

only reason for excluding them is the side effects, which

include _________________________________, and these side

effects can be eliminated by dosage adjustment or other means.

____ I am willing to try any other medications the hospital

doctor recommends.

____ I am willing to try any other medications my outpatient

doctor recommends.

____ I do not want to try any other medications.

Medication Allergies

I have allergies to, or severe side effects from, the

following:

______________________________________________________________

I have the following other preferences or instructions about

medications:

______________________________________________________________

Preferences and Instructions About Hospitalization and

Alternatives

(initial all that apply and, if desired, rank "1" for first

choice, "2" for second choice, and so on)

_____ In the event my psychiatric condition is serious enough

to require 24-hour care and I have no physical conditions that

require immediate access to emergency medical care, I prefer

to receive this care in programs/facilities designed as

alternatives to psychiatric hospitalization.

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_____ I would also like the interventions below to be tried

before hospitalization is considered:

_____ Calling someone or having someone call me when needed.

Name: _________________ Telephone: _____________________

___ Having a mental health service provider come to see me

___ Going to a crisis triage center or emergency room

___ Staying overnight at a crisis respite (temporary) bed

___ Seeing a provider for help with psychiatric medications

___ Other, specify:

___________________________________________

Authority to Consent to Inpatient Treatment

I consent, and authorize my agent to consent, to evaluation

for admission to inpatient mental health treatment.

(Sign one)

____ If deemed appropriate by my agent and treating physician

_____________________________ Signature

or

___ Under the following circumstances (specify symptoms,

behaviors or circumstances that indicate the need for

hospitalization) ___________________________________

____________________________ Signature

___ I do not consent, or authorize my agent to consent, to

evaluation for admission to inpatient treatment

_____________________________ Signature

Preferences and Instructions About Use of Seclusion or

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Restraint

I would like the interventions below to be tried before use of

seclusion or restraint is considered (initial all that apply)

___ "Talk me down": one-on-one

___ More medication

___ Time out/privacy

___ Show of authority/force

___ Shift my attention to something else

___ Set firm limits on my behavior

___ Help me to discuss/vent feelings

___ Decrease stimulation

___ Offer to have neutral person settle dispute

___ Other, specify __________________________________

If it is determined that I am engaging in behavior that

requires seclusion, physical restraint and/or emergency use of

medication, I prefer these interventions in the order I have

chosen (choose "1" for first choice, "2" for second choice,

and so on):

___ Seclusion

___ Seclusion and physical restraint (combined)

___ Medication by injection

___ Medication in pill or liquid form

In the event my physician decides to use medication in

response to an emergency situation after due consideration of

my preferences and instructions for emergency treatments

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stated above, I expect the choice of medication to reflect any

preferences and instructions I have expressed in this

directive. The preferences and instructions I have expressed

in this section regarding medication in emergency situations

do not constitute consent to use of the medication for

nonemergency treatment.

Preferences and Instructions About Electroconvulsive Therapy

My wishes regarding electroconvulsive therapy are (sign one):

___ I do not consent, nor authorize my agent to consent, to

the administration of electroconvulsive therapy.

________________________________ Signature

___ I consent, and authorize my agent to consent, to the

administration of electroconvulsive therapy.

_____________________ Signature

___ I consent, and authorize my agent to consent, to the

administration of electroconvulsive therapy, but only under

the following conditions:

______________________________________________________________

_______________________ Signature

Preferences and Instructions About Who Is Permitted to Visit

If I have been admitted to a mental health treatment facility,

the following people are not permitted to visit me there:

Name: ________________________________________________________

Name: ________________________________________________________

Name: ________________________________________________________

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I understand that persons not listed above may be permitted to

visit me.

Additional Instructions About My Mental Health Care

Other instructions about my mental health care: ______________

In case of emergency, please contact: ________________________

Name: _________________________ Address: _____________________

Work Telephone: _______________ Home telephone: ______________

Physician: ____________________ Address: _____________________

Telephone: ____________________

The following may help me to avoid a hospitalization: ________

______________________________________________________________

I generally react to being hospitalized as follows: __________

Staff of the hospital or crisis unit can help me by doing the

following: ___________________________________________________

Refusal of Treatment

I do not consent to any mental health treatment.

______________________________

Signature

I further state that this document and the information

contained in it may be released to any requesting licensed

mental health professional.

_____________________________ _____________________________

Signature of principal

Date

_____________________________ _____________________________

Signature of witness

Date

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II. APPOINTMENT OF AGENT

If my primary health care professional and a mental health

provider 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 primary health care

professional and other health care providers, pursuant to the

Mental Health Care Treatment Decisions Act, to follow the

instructions of my 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

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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

1. 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

as the expression of my legal right to consent or to refuse to

consent to mental health treatment.

2. I direct the following concerning the care of my minor

children:

______________________________________________________________

3. This advance directive for mental health treatment shall

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be in effect until it is revoked.

4. I understand that I may revoke this advance directive for

mental health treatment at any time.

5. 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.

6. I understand the 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

__________________________________________".

Section 8. DECISIONS BY GUARDIAN.--

A. A guardian shall comply with the ward's

individual instructions and may not revoke the ward's advance

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directive for mental health treatment unless the appointing

court expressly so authorizes after notice to the agent and

the ward.

B. A mental health treatment 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 mental health treatment decision made by

a guardian for the ward is effective without judicial

approval, if the appointing court has expressly authorized the

guardian to make mental health treatment decisions for the

ward, in accordance with the provisions of Sections 43-1-15 or

45-5-312 NMSA 1978, after notice to the ward and any agent.

Section 9. OBLIGATIONS OF MENTAL HEALTH TREATMENT

PROVIDER.--

A. Before implementing a mental health treatment

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 directive for mental health

treatment, a revocation of an advance directive for mental

health treatment or a challenge to a determination or

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certification of lack of capacity 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 shall

disclose an 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.

D. A supervising health care provider who makes or

is informed of a written determination or certification

pursuant to Section 5 of the Mental Health Care Treatment

Decisions Act that a patient lacks or has recovered capacity

or that another condition exists that affects an individual

instruction or the authority of an agent or guardian 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 mental

health treatment decisions for the patient.

E. Except as provided in Subsections F and G of

this section, a health care provider or mental health

treatment facility providing care to a patient shall comply:

(1) before and after the patient is

determined to lack capacity, with an individual instruction of

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the patient made while the patient had capacity;

(2) with a reasonable interpretation of the

individual instruction made by a person then authorized to

make mental health treatment decisions for the patient; and

(3) with a mental health treatment 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 mental health treatment decisions for the

patient, to the same extent as if the decision had been made

by the patient while having capacity.

F. A mental health treatment provider may only

decline to comply with an individual instruction or mental

health treatment decision for any of the following reasons:

(1) the treatment requested is infeasible or

unavailable;

(2) the facility or provider is not licensed

or authorized to provide the treatment requested; or

(3) the treatment requested conflicts with

other applicable law.

G. A mental health treatment provider or mental

health treatment facility may decline to comply with an

individual instruction or mental health treatment decision

that requires medically ineffective health care or health care

contrary to generally accepted health care standards

applicable to the mental health treatment provider or mental

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health treatment facility. "Medically ineffective health

care" means treatment that would not offer the patient any

significant benefit, as determined by a physician chosen by

the principal or agent.

H. A health care provider or mental health

treatment facility that declines to comply with an individual

instruction or mental health care decision shall:

(1) promptly so inform the patient, if

possible, and any person then authorized to make mental 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 mental health treatment 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 mental health treatment facility that

is willing to comply with the individual instruction or

decision.

I. A health care provider or mental health

treatment facility shall not require or prohibit the execution

or revocation of an advance directive for mental health

treatment as a condition for providing health care.

J. The Mental Health Care Treatment Decisions Act

does not require or permit a mental health treatment facility

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or health care provider to provide any type of mental health

treatment for which the mental health treatment facility or

health care provider is not licensed, certified or otherwise

authorized or permitted by law to provide.

Section 10. HEALTH CARE INFORMATION.--Unless otherwise

specified in an advance directive for mental health treatment,

a person then authorized to make mental health treatment

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 11. IMMUNITIES.--

A. A health care provider or mental health

treatment facility acting reasonably and on reasonable grounds

and in accordance with generally accepted health care

standards applicable to the health care provider or mental

health treatment facility is not subject to civil or criminal

liability or to discipline for unprofessional conduct for:

(1) complying or attempting to comply with a

mental health treatment decision of a person apparently having

authority to make a mental health treatment decision for a

patient;

(2) declining to comply with a mental health

treatment decision of a person based on a belief that the

person then lacked authority;

(3) complying or attempting to comply with

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an 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 mental health

treatment directive as permitted; or

(5) complying or attempting to comply with

any other provision of the Mental Health Care Treatment

Decisions Act.

B. An individual acting as agent or guardian under

the Mental Health Care Treatment Decisions Act is not subject

to civil or criminal liability or to discipline for

unprofessional conduct for mental health treatment decisions

made in good faith.

Section 12. 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

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 directive for mental

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health treatment; nor shall the existence of an 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 13. STATUTORY DAMAGES.--

A. A health care provider or mental health

treatment facility that intentionally violates the Mental

Health Care Treatment 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

directive for mental health treatment or a revocation of an

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 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

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addition to other types of relief available under other law,

including civil and criminal law and law providing for

disciplinary procedures.

Section 14. EFFECT OF COPY.--A copy of a written

advance directive for mental health treatment or revocation of

an advance directive for mental health treatment has the same

effect as the original.

Section 15. EFFECT OF THE MENTAL HEALTH CARE TREATMENT

DECISIONS ACT.--

A. The Mental Health Care Treatment Decisions Act

does not create a presumption concerning the intention of an

individual who has not made or who has revoked an advance

directive for mental health treatment.

B. Death resulting from the withholding or

withdrawal of health care in accordance with the Mental Health

Care Treatment 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

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exercising a power of appointment or a dispositive, appointive

or nominative instrument of any similar type.

C. The Mental Health Care Treatment 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 Mental Health Care Treatment Decisions Act

does not authorize or require a health care provider or mental

health treatment facility to provide health care contrary to

generally accepted health care standards applicable to the

health care provider or mental health treatment facility.

E. The Mental Health Care Treatment Decisions Act

does not authorize an agent to consent to the admission of an

individual to a mental health treatment facility. If the

individual's written advance directive for mental health

treatment expressly permits treatment in a mental health

treatment facility, the agent may present the individual to a

facility for evaluation for admission.

F. The Mental Health Care Treatment Decisions Act

does not affect other statutes of this state governing

treatment for mental illness of an individual admitted to a

mental health treatment facility, including involuntary

commitment to a mental health treatment facility for mental

illness.

Section 16. TRANSITIONAL PROVISIONS.--

A. An advance directive for mental health

treatment is valid for purposes of the Mental Health Care

Treatment Decisions Act if it complies with the provisions of

that act, regardless of when or where executed or

communicated.

B. The Mental Health Care Treatment 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, 2006.

C. Any mental health treatment or psychiatric

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. HB 459

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