Committee Substitute for HB0609JCS

HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR

HOUSE BILL 609

48th legislature - STATE OF NEW MEXICO - first session, 2007

AN ACT

RELATING TO HEALTH CARE; ENACTING THE MANDATED COMMUNITY TREATMENT ACT; PROVIDING FOR MANDATED COMMUNITY TREATMENT SERVICES TO TREAT MENTAL ILLNESS; PROVIDING FOR PENALTIES.

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

Section 1. SHORT TITLE.--This act may be cited as the "Mandated Community Treatment Act".

Section 2. DEFINITIONS.--As used in the Mandated Community Treatment Act:

A. "brain injury" means an injury to the brain of traumatic or acquired origin resulting in total or partial functional disability or psychosocial impairment, and "brain injury" applies to open and closed head injuries;

B. "capacity" means a person's ability to understand and appreciate the nature and consequences of proposed mental health treatment, including significant benefits and risks and alternatives to the proposed mental health treatment, and to make and communicate an informed mental health treatment decision;

C. "department" means the human services department;

D. "developmental disability" means a severe chronic disability that:

(1) is attributable to a mental or physical impairment or a combination of mental or physical impairments;

(2) is manifested before a person reaches twenty-two years of age;

(3) is expected to continue indefinitely;

(4) results in substantial functional limitations in three or more of the following areas of major life activities:

(a) self-care;

(b) receptive and expressive language;

(d) mobility;

(e) self-direction;

(f) capacity for independent living; or

(g) economic self-sufficiency; and

(5) reflects a person's need for a combination and sequence of special interdisciplinary or generic treatments or other supports and services that are of lifelong or extended duration and that are individually planned or coordinated;

E. "mandated community treatment" means outpatient services ordered by a court, including case management services or assertive community treatment team services, prescribed to treat a person's mental illness and to assist a person in living and functioning in the community or to attempt to prevent a relapse or deterioration that may reasonably be predicted to result in harm to the person or another, in serious attempts of suicide or in the need for involuntary hospitalization;

F. "mandated community treatment program" means a program that arranges and coordinates the provision of mandated community treatment, including monitoring treatment compliance by patients; evaluating and addressing the conditions or needs of persons subject to mandated community treatment; and ensuring compliance with court orders;

G. "mental illness" means a substantial disorder of a person's emotional processes, thoughts or cognition that grossly impairs judgment, behavior or capacity to recognize reality, but does not mean developmental disability or brain injury;

H. "patient" means a person receiving mandated community treatment pursuant to a court order;

I. "physician" means a medical doctor or psychologist licensed in New Mexico who by training or experience is qualified to work with individuals with mental illness;

J. "provider" means an individual or organization licensed, certified or otherwise authorized or permitted by law to provide diagnosis or mental health treatment in the ordinary course of business or practice of a profession; and

K. "respondent" means a person who is alleged in a petition, filed pursuant to the provisions of the Mandated Community Treatment Act, to meet the criteria for mandated community treatment.

Section 3. PROVIDERS--MANDATED COMMUNITY TREATMENT PROGRAM.--A provider may operate, direct and supervise a mandated community treatment program pursuant to the Mandated Community Treatment Act upon approval by the department. Providers may coordinate efforts to provide joint mandated community treatment programs. Nothing in the Mandated Community Treatment Act shall be construed to affect the ability of a provider to receive, admit or retain patients who otherwise meet the provisions of that act regarding receipt, retention or admission.

Section 4. MANDATED COMMUNITY TREATMENT--CRITERIA.--

A. A person may be ordered to obtain mandated community treatment if the court finds that there is no appropriate and feasible less-restrictive alternative and that the person:

(1) lacks capacity;

(2) is eighteen years of age or older;

(3) is suffering from a mental illness;

(4) refused voluntary mental health treatment designed to address the issues or behavior that gave rise to the petition or is unlikely to participate substantially in the voluntary treatment;

(5) in view of the person's treatment history and current behavior, is in need of mandated community treatment in order to prevent a relapse or deterioration that would likely result in serious harm to the person or another person;

(6) will likely benefit from mandated community treatment; and

(7) whose lack of compliance with treatment for mental illness that, prior to the filing of the petition, has resulted in at least one of the following:

(a) at least twice within the last forty-eight months been a significant factor in necessitating hospitalization or necessitating receipt of services in a forensic or other mental health unit or a correctional facility;

(b) resulted in one or more acts of serious violent behavior toward self or others or serious threats of, or attempts at, serious physical harm to self or others within the last forty-eight months;

(c) resulted in the person being hospitalized or incarcerated for at least six months for acts other than petty misdemeanors and the person is to be discharged or released within the next thirty days; or

(d) resulted in the person being hospitalized or incarcerated for a period of six months or more and the person was discharged or released within the past sixty days.

B. If the person has an advance directive or a personal representative, agent, surrogate, guardian or individual designated by the person to make mental health care treatment decisions, the court shall consider any advance directives or directions by the personal representative, agent, surrogate, guardian or individual designated by the person in determining the written treatment plan.

C. A court shall consider the person's explicit directions in a valid advance directive in consideration of ordering mandated community treatment, except if the treatment requested:

(1) is infeasible, medically ineffective or unavailable; or

(2) conflicts with other applicable law.

D. A court may not order mandated community treatment if it finds a need for involuntary commitment pursuant to the Mental Health and Developmental Disabilities Code.

E. A court shall not enter any order requiring treatment or services that would contradict the person's explicit directions in a valid advance directive that was in effect prior to the filing of the petition for an order authorizing mandated community treatment, except that an advance directive stating that no mandated community treatment should be imposed may be contradicted if the provisions of the Mandated Community Treatment Act are met.

Section 5. PETITION TO THE COURT.--

A. A petition for an order authorizing mandated community treatment may be filed in the district court in the county in which the respondent is present or reasonably believed to be present. A petition shall be filed only by the following persons:

(1) a person eighteen years of age or older who resides with the respondent;

(2) the parent or spouse of the respondent;

(3) the sibling or child of the respondent, provided that the sibling or child is eighteen years of age or older;

(4) a treatment guardian;

(5) the director of a hospital where the respondent is hospitalized;

(6) the director of a public or charitable organization or agency or a home where the respondent resides or that provides mental health services to the respondent;

(7) a treating physician, where practicable;

(8) a provider or social services official of the city or county where the respondent is present or reasonably believed to be present;

(9) a parole officer or probation officer assigned to supervise the respondent;

(10) an authorized law enforcement officer who has completed crisis intervention training; or

(11) a person designated under a valid mental health care treatment advanced directive who is the authorized agent according to the provisions of the Mental Health Care Treatment Decisions Act and who has personal knowledge of the respondent and the facts as required in Subsection B of this section.

B. The petition shall include:

(1) each criterion for mandated community treatment pursuant to Section 4 of the Mandated Community Treatment Act;

(2) facts that form the basis of the petitioner's knowledge of the respondent and the respondent's behavior, and that support the petitioner's belief that the respondent meets each criterion for mandated community treatment as set forth in Section 4 of the Mandated Community Treatment Act; provided that the hearing on the petition need not be limited to the stated facts; and

(3) whether the respondent is present or is reasonably believed to be present within the county where the petition is filed.

C. The petition shall be accompanied by an affidavit of a physician, who shall not be the petitioner, which shall state that:

(1) no more than ten days prior to the filing of the petition for mandated community treatment, the respondent was offered voluntary mental health treatment designed to address the issues or behavior that gave rise to the petition and that the respondent either refused or was unlikely to participate substantially in voluntary treatment;

(2) the physician has personally examined the respondent no more than ten days prior to the filing of the petition, or that the physician or the physician's designee has made appropriate attempts to elicit the cooperation of the respondent but has not been successful in persuading the respondent to submit to an examination; and

(3) the physician has reason to believe, based on reliable information available to the physician, that the respondent meets the criteria for mandated community treatment, that the physician recommends mandated community treatment for the respondent and that the physician is willing and able to examine the respondent and testify at the hearing on the petition.

Section 6. HEARING--EXAMINATION BY A PHYSICIAN.--

A. Upon receipt of the petition, the court shall fix a date for a hearing no later than seven days after the date of service or attempted service. A copy of the petition and notice of hearing shall be served in the same manner as a summons on the petitioner, the respondent, the physician whose affirmation or affidavit accompanied the petition, the provider and any other person the court deems advisable.

B. The respondent shall be represented by counsel at all stages of the proceedings. In the event the respondent does not retain counsel, the court shall appoint an attorney, who shall be paid a reasonable fee from the court-appointed attorney fee fund administered by the administrative office of the courts.

C. On motion of any party or on its own motion, the court may extend the date of the hearing, if deemed necessary, to provide reasonable opportunity for the respondent's attorney to adequately review the recommended mandated community treatment plan.

D. If the respondent fails to appear at the hearing after notice, and significant attempts to elicit the attendance of the respondent have failed, the court may conduct the hearing in the respondent's absence. If the hearing is conducted without the respondent present, the court shall set forth the factual basis for conducting the hearing without the presence of the respondent.

E. The court shall not order mandated community treatment for the respondent unless a physician, who has personally examined the respondent of the petition within ten days prior to the filing of the petition, testifies in person at the hearing. Testimony shall include:

(1) the facts that support the allegation that the respondent meets each criterion for mandated community treatment and that the treatment is the least restrictive alternative or least drastic means;

(2) the recommended mandated community treatment and the rationale for the recommended mandated community treatment, including the efficacy of such treatment; and

(3) if the recommended mandated community treatment includes medication, the types or classes of medication that should be authorized, the beneficial and detrimental physical and mental effects of such medication and whether such medication should be self-administered or should be administered by an authorized professional.

F. If the respondent has refused to be examined by a physician and the court finds reasonable grounds to believe that the allegations of the petition are true, the court may direct a law enforcement officer to take the respondent into custody and transport the respondent to a provider for examination by a physician. Upon the request of a physician, the court may request a provider to transport the respondent to a hospital operating a mandated community treatment program or to any other hospital authorized to receive such persons. The examination of the respondent may be performed by the physician whose affidavit accompanied the petition. If the examination is performed by another physician, the examining physician shall be authorized to consult with the physician whose affidavit accompanied the petition. No respondent taken into custody pursuant to this subsection shall be detained longer than necessary or longer than twenty-four hours. Consent to examination on the part of the respondent shall not be deemed to be consent for treatment. An order for examination as provided for in this section of the Mandated Community Treatment Act shall not override the respondent's right to refuse treatment as provided for in Section 43-1-15 NMSA 1978.

G. The respondent may request a second opinion and be examined by a willing physician of the respondent's choice using public or private resources available to the respondent. The physician may testify about this examination at the request of the respondent or the respondent's attorney.

Section 7. WRITTEN LICENSED PHYSICIAN TREATMENT PLAN.--

A. The court shall not order mandated community treatment unless an examining physician:

(1) develops and provides to the court a proposed written treatment plan; and

(2) testifies to explain the written proposed treatment plan.

B. In developing a written proposed treatment plan, the physician shall take into account an advance directive, if existing, and provide the following persons with an opportunity to actively participate in the development of the plan:

(1) the respondent;

(2) the treating physician; and

(3) upon the request of the respondent, an individual significant to the respondent, including any relative, close friend or individual otherwise concerned with the welfare of the respondent. If the petitioner is a provider, the plan shall be provided to the court no later than the date of the hearing on the petition.

C. The written proposed treatment plan may include:

(1) evidence-based services such as the following:

(a) case management, community support services or an assertive community treatment team to provide care coordination;

(b) counseling, psychotherapy or individual or group therapy;

(d) periodic blood tests or urinalysis to determine compliance with prescribed medications;

(e) day or partial-day programming activities;

(f) educational and vocational training or activities;

(g) psychosocial rehabilitation services;

(h) alcohol or substance abuse treatment and counseling, and periodic tests for presence of alcohol or illegal drugs for a person with a history of alcohol or substance abuse;

(i) peer support services;

(j) crisis respite; or

(k) supervision of living arrangements; or

(2) complementary and alternative health practices, including traditional healing, chiropractic, acupuncture and other similar practices.

D. If the written proposed treatment plan includes medication, the plan shall include at least one other service and:

(1) reasonable assistance in addressing the respondent's basic human needs, including food, clothing and shelter; and

(2) specific actions, treatment and services designed to restore the respondent to a condition that would allow for the mandated community treatment order to be vacated.

E. If the written proposed treatment plan includes medication, the plan shall state whether such medication should be self-administered or should be administered by an authorized professional and shall specify the type and dosage range of medication most likely to provide maximum benefit for the respondent.

F. If the written proposed treatment plan includes alcohol or substance abuse counseling and treatment, the plan may include a provision requiring relevant testing for either alcohol or illegal substances; provided that the physician's clinical basis for recommending such plan provides sufficient facts for the court to find that:

(1) the respondent has a history of alcohol or substance abuse that is clinically related to the mental illness; and

(2) such testing is necessary to prevent a relapse or deterioration that would be likely to result in serious harm to the respondent or others.

G. The written proposed treatment plan shall not include electroconvulsive therapy.

H. Testimony about the written proposed treatment plan shall include an explanation of the recommended treatment and services, the rationale for the recommended treatment and services and the facts that establish that such treatment is the least restrictive alternative or least drastic means for the respondent at that time.

I. The respondent or the respondent's attorney shall be afforded an opportunity to offer testimony about why previously offered treatment was refused and may present testimony or witnesses describing an alternative treatment plan and the facts that establish that such a treatment plan is the most appropriate for the respondent and the least restrictive alternative or least drastic means for the respondent at that time.

Section 8. DISPOSITION.--

A. If after hearing all relevant evidence, the court finds that the criteria as set forth in Section 4 of the Mandated Community Treatment Act have been established by clear and convincing evidence, the court shall order the respondent to receive mandated community treatment for an initial period not to exceed six months.

B. In making its determination, the court shall take into consideration the reasons offered by the respondent as to why previously offered treatment was refused.

C. In its order, the court shall state the mandated community treatment that the respondent is to receive, adopting the written proposed treatment plan or an alternative treatment plan that is appropriate for the respondent based on testimony received. A court may order the respondent to self-administer medication or accept the administration of such medication by an authorized professional as part of a mandated community treatment program.

D. The order may specify the type and dosage range of medications and shall be effective for the duration of the respondent's mandated community treatment. The treating physician may change the type and dosage of the medications to achieve optimal benefit within accepted treatment practices with the respondent's permission. The court may not order treatment that has not been recommended by the examining or treating physician or proposed by the respondent.

E. If after hearing all relevant evidence, the court finds that the criteria for mandated community treatment set forth in Section 4 of the Mandated Community Treatment Act have been established by clear and convincing evidence, but the court has yet to be provided with a written proposed treatment plan and testimony pursuant to Section 7 of that act, the court shall order the petitioning provider or other appropriate provider to examine the respondent, the respondent's treatment history and any valid advance directive and deliver to the court a written proposed treatment plan and testimony pursuant to Section 7 of that act as soon as practicable. Upon receiving the written proposed treatment plan and testimony, the court may order mandated community treatment as provided in Subsection A of this section.

F. If the petitioner is a provider that operates a mandated community treatment program, the court order shall direct the provider to provide or arrange for all mandated community treatment for the respondent throughout the period of the order. The respondent's expressed desires about the preferred provider of treatment or services in the court-ordered treatment plan shall be considered provided the court deems the choice to be reasonable and consistent with the treatment plan.

G. The provider of the mandated community treatment to the respondent shall apply to the court for approval before instituting a proposed material change in the court-ordered treatment plan for the respondent unless the change is contemplated in the order. An application for approval shall be served upon those persons required to be served with notice of a petition for an order authorizing mandated community treatment pursuant to this section. Nonmaterial changes may be instituted by the mandated community treatment program without court approval.

H. In the event the treating physician or provider determines that the respondent no longer meets the criteria for mandated community treatment pursuant to Section 4 of the Mandated Community Treatment Act, the treating physician or provider shall notify the court within ten days of that determination and seek an order vacating the court order compelling the patient to undergo mandated community treatment.

I. For purposes of this section, "material change" means an addition or deletion of a category of treatment or service in the court-ordered treatment plan or a substantial deviation without the patient's agreement from the terms of the existing order relating to the administration or type of medications.

Section 9. APPLICATIONS FOR ADDITIONAL PERIODS OF TREATMENT.--

A. If a provider determines that the condition of a patient requires further mandated community treatment, the provider shall seek, prior to the expiration of the period of mandated community treatment ordered by the court, a second or subsequent order authorizing continued mandated community treatment for a period not to exceed one year from the date of the second or subsequent order. If the court's disposition of the application does not occur prior to the expiration date of the current order, the current order shall remain in effect until the court's disposition. A person subject to a subsequent petition or the person's attorney of record shall have the right to request that a six-person jury hear evidence and make findings as to whether the criteria for mandated community treatment continue to be met. The person subject to a subsequent petition found by the court to be subject to continuing mandated community treatment shall have a right to an expedited appeal. An order for an additional period of treatment shall be obtained pursuant to the provisions of the Mandated Community Treatment Act.

B. A court order requiring periodic blood tests or urinalysis for the presence of alcohol or illegal drugs shall be subject to review after six months by a physician, who shall be authorized to terminate the blood tests or urinalysis without further action by the court.

Section 10. APPLICATION FOR AN ORDER TO STAY, VACATE OR MODIFY--COMPLAINTS.--

A. In addition to any other right or remedy available by law with respect to the order for mandated community treatment, the patient, the patient's counsel or anyone acting on the patient's behalf may apply to the court to stay, vacate or modify the order. A copy of the application shall be served on the appropriate provider and the original petitioner. In the event the treating physician or provider determines that the patient no longer meets the criteria as set forth in Section 4 of the Mandated Community Treatment Act, the physician or provider shall notify the court within ten days of that determination and seek an order vacating the court order compelling the patient to undergo mandated community treatment.

B. At all times during the court process and during the mandated community treatment, the respondent shall be treated with respect and dignity and provided with as much autonomy as possible. Disagreement with the court-ordered treatment plan or the recommendations of the treating physician shall not be considered evidence by itself of clinical incapacity to make informed decisions.

C. If a respondent has a complaint about the treatment provided pursuant to a court order for mandated community treatment, the respondent may file a complaint through regular procedures as provided by law or regulation with the department. The department shall investigate the complaint and assist the respondent in seeking a resolution of the complaint to the extent possible.

Section 11. FAILURE TO COMPLY WITH MANDATED COMMUNITY TREATMENT.--

A. A physician may determine that a patient has failed to comply with mandated community treatment if, in the clinical judgment of the physician:

(1) the patient has failed or has refused to comply with the treatment ordered by the court;

(2) sufficient efforts were made to solicit compliance and the qualifications of the person making the efforts to solicit compliance were appropriate to those efforts; and

(3) the patient may be in need of an examination to determine whether the patient has a mental illness for which involuntary hospitalization is necessary. In determining whether the patient is in need of such an examination, the physician may consider the patient's refusal of any form of treatment or refusal to take or the patient's failure of a blood test, urinalysis or alcohol or drug test as required by the court order.

B. Upon the request of a physician making a determination set forth in Subsection A of this section, a provider may transport a patient to the hospital operating a mandated community treatment program or to any other hospital authorized by the department to receive such persons.

C. If deemed necessary and upon the request of a physician, a provider may request the aid of a law enforcement officer to take the patient into custody and transport the patient to the hospital operating the mandated community treatment program or to any hospital authorized by the department to receive such persons. A law enforcement officer may carry out a provider's directive pursuant to this section.

D. The patient may be retained for observation, care, treatment and further examination in the hospital for up to seventy-two hours to permit a physician to determine whether the patient has a mental illness and is in need of mandated community treatment pursuant to the Mandated Community Treatment Act. Any continued involuntary retention in a hospital beyond the initial seventy-two-hour period shall be in accordance with the provisions of the Mental Health and Developmental Disabilities Code relating to the involuntary admission and retention of a person. If at any time during the seventy-two-hour period the person is determined not to meet the involuntary admission and retention provisions of the Mandated Community Treatment Act and the person does not agree to stay in the hospital as a voluntary or informal patient, the patient shall be released.

E. A patient's failure to comply with an order of mandated community treatment is not by itself grounds for involuntary civil commitment or a finding of contempt of court.

Section 12. SEQUESTRATION AND CONFIDENTIALITY OF RECORDS.--

A. A petition initiating proceedings pursuant to the provisions of the Mandated Community Treatment Act shall be entitled "In the Matter of ..........................." and shall set forth with specificity:

(1) the facts necessary to invoke the jurisdiction of the court;

(2) the name, birth date and last known residence address of the respondent of the petition; and

(3) any other substantive matters required by the Mandated Community Treatment Act to be set forth in the petition.

B. All records or information concerning a party to a proceeding pursuant to the Mandated Community Treatment Act, including all pleadings and other documents filed in the matter, social records, diagnostic evaluations, psychiatric or psychological reports, videotapes, transcripts and audio recordings of interviews and examinations, recorded testimony and the mandated community treatment plan that was produced or obtained as part of a proceeding pursuant to the Mandated Community Treatment Act, shall be confidential and closed to the public.

C. The records described in Subsection B of this section shall be disclosed only to the parties and:

(1) court personnel;

(2) the respondent's attorney, personal representative, agent, surrogate, guardian or individual designated by the person to make health care decisions;

(3) law enforcement officials requested by the court to perform any duties or functions related to the respondent as deemed appropriate by the court;

(4) providers involved in the evaluation or treatment of the respondent; or

(5) any other person or entity, by order of the court, having a legitimate interest in the case or the work of the court including persons selected to evaluate the Mandated Community Treatment Act pursuant to Section 15 of that act.

D. Whoever intentionally and unlawfully releases any information or records closed to the public pursuant to the Mandated Community Treatment Act or releases or makes other unlawful use of the records in violation of that act is guilty of a petty misdemeanor.

Section 13. CRIMINAL PROSECUTION--CIVIL PENALTIES.--A person who knowingly makes a false statement or knowingly provides false information or false testimony in a petition or hearing pursuant to the provisions of the Mandated Community Treatment Act is subject to criminal prosecution, fines, penalties, attorney fees or court costs as determined by the court.

Section 14. EDUCATIONAL MATERIALS.--The department, in consultation with the administrative office of the courts, shall prepare educational and training materials on the provisions of the Mandated Community Treatment Act and the Mental Health Care Treatment Decisions Act that shall be made available to providers, judges, court personnel, law enforcement officials and the general public.

Section 15. EVALUATION OF THE MANDATED COMMUNITY TREATMENT ACT.--

A. The department shall conduct a study, subject to available resources, of the Mandated Community Treatment Act after it has been in effect for five years and shall report its analysis of the effect of that act to the appropriate interim legislative committees no later than September 1, 2013. The report shall include:

(1) analyses of the diagnoses of respondents;

(2) treatment histories of the respondents prior to the time of the filing of the petition to the extent the information is available;

(3) the length of time prior to the filing of the petition since respondents were last in a residential treatment setting or inpatient setting;

(4) the number of petitions filed and the number granted;

(5) the funding sources utilized by respondents and providers to pay for mandated community treatment;

(6) the number of contacts the patient had with providers providing services under the Mandated Community Treatment Act;

(7) the effectiveness of services provided for persons subject to mandated community treatment plans compared to services for similar persons not subject to mandated community treatment plans;

(8) the satisfaction of persons subject to mandated community treatment plans with treatment received pursuant to those plans and other services and treatment received; and

(9) incidence of homelessness, hospitalization, arrests, incarceration of patients before mandated community treatment, to the extent available, and information on the incidence during mandated community treatment.

B. The human services department shall report annually to the appropriate interim legislative committees on the data gathered pursuant to Subsection A of this section, subject to available resources.

C. The department shall require mandated community treatment programs and providers and physicians that implement such orders to provide such information and data about the persons subject to mandated community treatment and about the treatment and services they receive as may be necessary to monitor the implementation of the Mandated Community Treatment Act and to ensure that the evaluation is conducted.

Section 16. PREEMPTION.--County and municipal ordinances are preempted when they conflict with the Mandated Community Treatment Act.

Section 17. DELAYED REPEAL.--Sections 1 through 16 of this act are repealed effective June 30, 2017.

Section 18. SEVERABILITY.--If any part or application of the Mandated Community Treatment Act is held invalid, the remainder or its application to other situations or persons shall not be affected.

Section 19. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2007.

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