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F I S C A L I M P A C T R E P O R T

SPONSOR Sandoval

ORIGINAL DATE

LAST UPDATED

1-28-06

2-14-06 HB

459/aHCPAC/aHJC/

aHFl#1/aSJC

SHORT TITLE Mental Health Care Treatment Decisions Act

SB

ANALYST Collard/Lewis

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY06

FY07

Minimal for administration Recurring

General fund

(Parenthesis ( ) Indicate Expenditure Decreases)

Conflicts with HB 174

Duplicates SB 234

SOURCES OF INFORMATION

LFC Files

Responses Received From

Department of Health (DOH)

Human Services Department (HSD)

New Mexico Corrections Department (NMCD)

Developmental Disabilities Planning Council (DDPC)

SUMMARY

Synopsis of SJC Amendment

The Senate Judiciary Committee amendment further extends the provision for immunities in Sec-

tion 11 of the act by adding “reasonably and” so that the provision now extends immunity to a

“health care provider or mental health treatment facility acting reasonably and on reasonable

grounds and in accordance with generally accepted health care standards ….”

Synopsis of HFl#1 Amendment

The House Floor amendment strikes the HJC amendments.

House Bill 459/aHCPAC/aHJC/aHFl#1/aSJC – Page

2

Synopsis of HJC Amendment

The House Judiciary Committee amendment to House Bill 459, as amended by the House Con-

sumer and Public Affairs Committee, deletes the section relating to immunities in which a pro-

vider or facility is not subject to criminal liability or to discipline for unprofessional conduct for

complying, attempting to comply, or declining to comply with a mental health treatment decision

on reasonable grounds. Additionally, the amendment strikes the section, relating to statutory

damages, that states if a health care provider or facility intentionally violates the act, they are

subject to liability to the aggrieved individual for $5 thousand, or actual damages, and attorney

fees.

Synopsis of HCPAC Amendment

The House Consumer and Public Affairs Committee amendment to House Bill 459 changes lan-

guage to indicate a treatment facility acting “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 for attempting to comply with a men-

tal health treatment decision or declining to comply with a mental health treatment decision.

Synopsis of Original Bill

House Bill 459 creates the “Mental Health Care Treatment Decisions Act” to ensure appropriate

care and treatment of persons with behavioral health needs in the community and empower con-

sumers to direct decisions about their treatment. Advance directives are legal documents that tell

others what an individual’s treatment preferences or services needs are. Advance directives help

a consumer define and recognize ‘red flag’ behaviors that signal impending psychiatric deteriora-

tion and enable the consumer to gain increased knowledge and control of his or her mental health

condition as well as assisting others to recognize advance warnings.

This bill enacts the Mental Health Care Treatment Decisions Act to provide for two basic types

of advance directives: instruction directives that describe treatments and services an individual

does and does not want should he or she be unable to make such decisions; and agent-driven di-

rectives that designate someone else as agent to advocate for their stated interests. The bill con-

tains a sample format for such advance directives.

NMCD adds this bill requires that if a patient makes or revokes advance treatment decisions, the

mental health care provider must notify the treatment guardian. Additionally, if a treatment

guardian makes a decision for treatment, the mental health care provider must notify the patient

of the decision prior to treatment.

This bill also authorizes a patient who has capacity alter or revoke advance treatment directives.

FISCAL IMPLICATIONS

Although there is no appropriation associated with this bill, DOH will have to work with the

statewide entity, ValueOptions, to administer the advance directives. It is anticipated the admin-

istrative fiscal implication will be minimal.

House Bill 459/aHCPAC/aHJC/aHFl#1/aSJC – Page

3

SIGNIFICANT ISSUES

House Bill 459 is a DOH bill. DOH indicates the value and expertise of the person who is re-

ceiving mental health services in determining what works best for them and in making treatment

decisions based on his or her past experiences and wishes are recognized in the recent Institute of

Medicine report, Improving the Quality of Health Care for Mental and substance-Use Condi-

tions (2006). This IOM report finds several evaluation studies that show such advance directives

are feasible for use even with individuals with severe and chronic mental illnesses (Peto et al.,

2004; Srebnik et al., 2004)

Every state in the United States has a statute allowing advance directives for general medical

purposes. During the past few years, 20 states have passed legislation specific to mental health

advance directives because they found that more general laws did not address the specific treat-

ment and recovery needs of people receiving mental health treatment.

Pennsylvania is one of 20 states to have passed laws providing for mental health advance direc-

tives. The legislative sponsor of Pennsylvania’s statute testified that: “All too often, medical

professionals or judges are forced to make treatment decisions for individuals in times of psychi-

atric crisis without regard to, or knowledge of the individual’s past experiences or treatment

preferences. Proper planning for mental health care can also help prevent and reduce psychiatric

hospitalization, ultimately cutting costs within the already overburdened public health care sys-

tem.”

The importance of this bill is summarized in the official policy statement of the National Mental

Health association, which: “envisions a just, humane and health society in which all people are

accorded respect, dignity and the opportunity to achieve their full potential free from stigma and

prejudice. Consistent with this philosophy, NMHA supports and promotes the use of psychiatric

advance directives as a tool for the expression of an individual’s free will and self-determination.

NMHA believes that psychiatric advance directives are an underutilized tool for empowering

individuals and offer significant potential for preventing or mitigating crisis situations.”

Mental health advance directives such as those provided by these bills offer a number of benefits,

including:

•

promotion of individual autonomy, responsibility and empowerment in the recovery from

mental illness;

•

enhancement of communication between individuals and their healthcare providers, other

professionals, friends and families;

•

shorten hospital stays;

•

reduce the costs associated with involuntary and hospital care;

•

protection of persons from ineffective, unwanted and possibly harmful treatment; and

•

assistance in preventing crises and highly restrictive interventions such as involuntary

treatment or restraint.

The use of mental health advance directives such as those specified in these bills has generated

widespread support from consumers of mental health services. Such directives allow a consumer

to provide a clear, written statement of his or her wishes in case of a mental health crisis or onset

of serious symptoms so that their wishes will not be assumed to be irrational and overriden by

healthcare providers.

House Bill 459/aHCPAC/aHJC/aHFl#1/aSJC – Page

4

One national consumer advocate and recovery expert, Mary Ellen Copeland, advises mental

health consumers that: “Having an advance directive keeps you in control even when it feels like

things are out of control. The people you have chosen will take over, and do the things you want

them to do, things that will help you to recover quickly.”

DDPC states this bill defines the principal as having “capacity” by meaning an individual’s abil-

ity to understand and appreciate the nature and consequences of proposed mental health treat-

ment, including significant benefits and risks and alternatives to the proposed mental health

treatment, and to make and communicate an informed mental health treatment decision. While

the presumption of capacity should prevail, this section goes way beyond that. Depending on

what treatment is being recommended by the mental health care provider (paragraph C) there

could be a strong indication of incapacity. Sometimes, the mentally ill can have memories

enough to deny treatment but still need the recommended treatment due to their incapacity from

mental illness.

Additionally, DDPC notes there is a rather strong concern that an agent’s decisions shall be con-

sistent with any wishes or instructions the principal has expressed in their mental health power of

attorney. Many times patients do not want particular doctors or mental health care providers be-

cause they have had enough history and experience with those personnel that they cannot “fool”

them with their short-term behaviors; secondly, patients may ask for providers who are unobtain-

able at the time to provide mental health treatment for them at the time they may need it; thirdly,

patients, while “competent” may not always know what is the best form of medication for them

when they are “incompetent” (whether side-effects are pleasant or not); fourthly, it should be a

medical providers and agent’s decision as to what intervention should be tried before hospitaliza-

tion is considered, since the principal who lacks capacity cannot know or understand what treat-

ments are best for him/her at that time of incapacity. As for restraints, there should be a policy

developed universally for all patients – no matter what their disability is; and lastly, electrocon-

vulsive therapy should be the doctor’s and agent’s decisions, because if that is the indicated

treatment (or only last available treatment), then if the principal wants to get better – it should be

used.

Preferences about who can visit, while important as to the disposition of the incapacitated indi-

vidual, denies other people their rights to check on (as a check and balance system) their family

member, friend, guardian, etc.

If the person is allowed to refuse to any mental treatment, DDPC indicates they will lack capac-

ity very shortly, end up in a jail and a treatment guardian will appointed for them.

PERFORMANCE IMPLICATIONS

DOH indicates this bill is consistent with the Department of Health’s Strategic Plan, Program

Area 5 – Behavioral Health Services, Objective 1: Improve access, quality, and value of mental

health and substance abuse services.

Best practice in delivery of mental health services includes measures that promote, as does New

Mexico, the recovery and resilience of people receiving mental health services and their in-

volvement in decisions that affect their treatment. This bill provides an important tool used by

many states to further that effort and the goals of the New Mexico Behavioral Health Collabora-

tive.

House Bill 459/aHCPAC/aHJC/aHFl#1/aSJC – Page

5

NMCD notes, if an inmate has made advance treatment directives and then paroles or discharges

from a correctional facility, the mental health staff at the facility need to communicate those ad-

vance treatment directives to a mental health provider who may be treating the released inmate.

ADMINISTRATIVE IMPLICATIONS

DOH notes New Mexico’s single state entity for purchasing behavioral health services already

informs consumers of the value of advance directives in their consumer handbook. Further ac-

tivities can be undertaken as part of the ordinary course of work of DOH’s Office of Consumer

Affairs, by all Behavioral Health Collaborative agencies, by local behavioral health collabora-

tives and by the single state entity. Many states have adopted a number of promotional and edu-

cational activities to promote the use of mental health advance directives. For example, the Na-

tional Mental Health Association has developed a toolkit of resources for both mental health

providers and consumers to use in promoting successful implementation of psychiatric advance

directives. In New York over 15,000 advance directives have been completed as part of an ad-

vance directive training project.

DDPC indicates education of the mentally ill and the medical community as to this implications

and instructions would be overwhelming and likely not followed for many years – with the ex-

ception of the institutions. It is difficult enough to get doctors to treat New Mexican’s mentally

ill, who are not institutionalized, and this would add an extra burden that would likely decrease

the number of doctors available.

CONFLICT, DUPLICATION

Possible conflict with House Bill 174 in that, if House Bill 174 (Kendra’s Law) passes, some of

the provisions in this proposed legislation would be in direct conflict with that law. Addition-

ally, House Bill 459 duplicates Senate Bill 234.

OTHER SUBSTANTIVE ISSUES

DDPC indicates all the “rights” belong to the competent principal (as they should) but those

rights should not necessarily carry-over when one becomes incompetent due to mental illness.

Mental illness is difficult enough to treat without the competent person making all the decisions

while they are competent, which might not apply when they loose their competency to their men-

tal illness. It’s easy to call the shots before hand, but things change when people loose their

competency, especially when mental illness is involved.

ALTERNATIVES

DDPC suggests the Probate Code Power of Attorney with preferences and specific requirements

spelled out under the SPECIAL INSTRUCTIONS lines where the principal may give special in-

structions limiting or extending the powers you grant to your agent. The other alternative is to

add a mental health section to the power of attorney.

KBC/ML/nt:yr:nt