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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;
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L. "power of attorney for mental health treatment"
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
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primary qualified health care professional or, if the primary
qualified health care professional is not reasonably
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
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incapacity under the Mental Health Care Treatment Decisions
Act or Article 5 of the Uniform Probate Code. The power of
attorney 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
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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 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;
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(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 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
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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 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
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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
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____.
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______________________________
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 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
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treatment described as:
_____________________________________________________________
_____________________________________________________________
3. the principal's ability to understand and communicate the
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:
_____________________________________________________________
_____________________________________________________________
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 6. REVOCATION OF ADVANCE DIRECTIVE FOR MENTAL
HEALTH TREATMENT.--
A. An individual, while having capacity, may
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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 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
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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
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
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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
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
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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
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
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I cannot revoke this directive if one qualified health care
professional and one mental health treatment provider find
that I am an incapacitated person and unless I successfully
challenge the determination of incapacity.
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
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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 treatment of persons with mental illness, if required.
1. 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
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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:
______________________________________________________
____ 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
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(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.
_____ 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
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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
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):
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___ 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
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:
_____________________________________________________________
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______________________ 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:
_________________________________________________________
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: ____________________
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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
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
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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
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
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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
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.
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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
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
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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
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
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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 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
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(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
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.
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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
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.
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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 in good faith 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
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
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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 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.
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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
addition to other types of relief available under other law,
including civil and criminal law and law providing for
disciplinary procedures.
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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
exercising a power of appointment or a dispositive,
appointive or nominative instrument of any similar type.
C. The Mental Health Care Treatment Decisions Act
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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
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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.