HOUSE BILL 1229
48th legislature - STATE OF NEW MEXICO - first session, 2007
INTRODUCED BY
Janice E. Arnold-Jones
AN ACT
RELATING TO CHILDREN; REQUIRING A PARENT'S CONSENT FOR MENTAL HEALTH TREATMENT OR RELEASE FROM TREATMENT FOR A CHILD UNDER EIGHTEEN YEARS OF AGE; REPEALING A PROVISION OF THE CHILDREN'S MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES ACT THAT PERMITS CHILDREN FROM FOURTEEN TO SEVENTEEN YEARS OF AGE TO RECEIVE AND TERMINATE MENTAL HEALTH TREATMENT WITHOUT PARENTAL CONSENT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 32A-6-11.1 NMSA 1978 (being Laws 1995, Chapter 207, Section 13, as amended) is amended to read:
"32A-6-11.1. CONSENT TO PLACEMENT IN A RESIDENTIAL TREATMENT OR HABILITATION PROGRAM--CHILDREN YOUNGER THAN [FOURTEEN] EIGHTEEN YEARS OF AGE.--
A. A child younger than [fourteen] eighteen years of age shall not receive residential treatment for mental disorders or habilitation for developmental disabilities, except as provided in this section or Section 32A-6-13 NMSA 1978.
B. A child younger than [fourteen] eighteen years of age may be admitted to a residential treatment or habilitation program with the informed consent of the child's parent, guardian or legal custodian for a period not to exceed sixty days, subject to the requirements of this section.
C. In order to admit a child younger than [fourteen] eighteen years of age to a residential treatment or habilitation program, the child's parent, guardian or legal custodian shall knowingly and voluntarily execute a consent to admission document prior to the child's admission. The consent to admission document shall be in a form designated by the supreme court. The consent to admission document shall include a clear statement of the parent's, guardian's or legal custodian's right to voluntarily consent to or refuse the child's admission; the parent's, guardian's or legal custodian's right to request the child's immediate discharge from the residential treatment program at any time; and the parent's, guardian's or legal custodian's rights when the parent, guardian or legal custodian requests the child's discharge and the child's physician, licensed psychologist or the director of the residential treatment facility determines that the child needs continued treatment. The facility shall ensure that each statement is clearly explained in the child's and parent's, guardian's or legal custodian's primary language, if that is their language of preference, and in a manner appropriate to the child's and parent's, guardian's or legal custodian's developmental abilities. Each statement shall be initialed by the child's parent, guardian or legal custodian.
D. The parent's, guardian's or legal custodian's executed consent to admission document shall be filed with the child's hospital records within twenty-four hours of the time of admission.
E. Upon the filing of the parent's, guardian's or legal custodian's consent to admission document in the child's hospital records, the director of the residential treatment or habilitation program or the director's designee shall, on the next business day following the child's admission, notify the district court or the special commissioner regarding the admission and provide the child's name, date of birth and the date and place of admission. The court or special commissioner shall, upon receipt of notice regarding a child's admission to a residential treatment or habilitation program, establish a sequestered court file.
F. The director of a residential treatment or habilitation program or the director's designee shall, on the next business day following the child's admission, petition the court to appoint a guardian ad litem for the child. When the court receives the petition, the court shall appoint a guardian ad litem. The court may order the parent to reimburse the state pursuant to the provisions of the Children's Code.
G. Within seven days of a child's admission to a residential treatment or habilitation program, a guardian ad litem, representing the child's best interests and in accordance with the provisions of the Children's Mental Health and Developmental Disabilities Act, shall meet with the child, the child's parent, guardian or legal custodian and the child's clinician. The guardian ad litem shall determine the following:
(1) whether the child's parent, guardian or legal custodian understands and consents to the child's admission to a residential treatment or habilitation program;
(2) whether the admission is in the child's best interests; and
(3) whether the admission is appropriate for the child and is consistent with the least drastic means principle.
H. If a guardian ad litem determines that the child's parent, guardian or legal custodian understands and consents to the child's admission and that the admission is in the child's best interests, is appropriate for the child and is consistent with the least drastic means principle, the guardian ad litem shall so certify on a form designated by the supreme court. The form, when completed by the guardian ad litem, shall be filed in the child's patient record kept by the residential treatment or habilitation program, and a copy shall be forwarded to the court or special commissioner within seven days of the child's admission. The guardian ad litem's statement shall not identify the child by name.
I. Upon reaching the age of majority, a child who was admitted to a residential treatment or habilitation program pursuant to this section may petition the district court for the records of the district court regarding all matters pertinent to the child's admission to a residential treatment or habilitation program. The district court, upon receipt of the petition and upon a determination that the petitioner is in fact a child who was admitted to a residential treatment or habilitation program, shall provide all court records regarding the admission to the petitioner, including all copies in the court's possession.
J. [Any] A child's parent, guardian or legal custodian who consents to admission of [his] the child to a residential treatment or habilitation program has the right to request the child's immediate discharge from the residential treatment or habilitation program, subject to the provisions of this section. If a child's parent, guardian or legal custodian informs the director, a physician or any other member of the residential treatment or habilitation program staff that the parent, guardian or legal custodian desires the child to be discharged from the program, the director, physician or other staff shall provide for the child's immediate discharge and remit the child to the parent's, guardian's or legal custodian's care. The residential treatment or habilitation program shall also notify the child's guardian ad litem. A child whose parent, guardian or legal custodian requests [his] the child's immediate discharge shall be discharged to the parent; except when the director of the residential treatment program, a physician or a licensed psychologist determines that the child requires continued treatment and that the child meets the criteria for involuntary residential treatment. In that event, the director, physician or licensed psychologist shall, on the first business day following the child's parent's, guardian's or legal custodian's request for release of the child from the program, request that the children's court attorney initiate involuntary residential treatment proceedings. The children's court attorney may petition the court for such proceedings. The child has a right to a hearing regarding [his] the child's continued treatment within seven days of the request for release.
K. A child who is admitted to a residential treatment or habilitation program pursuant to this section shall have [his] the child's admission reviewed at the end of the sixty-day period following the date of the child's initial admission to the program. The child's physician or licensed psychologist shall review the child's residential treatment or habilitation program and determine whether it is in the best interests of the child to continue the admission. If the child's physician or licensed psychologist concludes that continuation of the residential treatment or habilitation program is in the child's best interests, the child's clinician shall so state in a form to be filed in the child's patient records. The residential treatment or habilitation program shall notify the guardian ad litem for the child at least seven days prior to the date that the sixty-day period is to end or, if necessary, request a guardian ad litem pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act. The guardian ad litem shall then personally meet with the child, the child's parent, guardian or legal custodian and the child's clinician and ensure that the child's parent, guardian or legal custodian understands and consents to the child's continued admission to the residential treatment or habilitation program. If the guardian ad litem determines that the child's parent, guardian or legal custodian understands and consents to the child's continued admission to the residential treatment or habilitation program, that the continued admission is in the child's best interest, that the placement continues to be appropriate for the child and consistent with the least drastic means principle and that the clinician has recommended the child's continued stay in the program, the guardian ad litem shall so certify on a form designated by the supreme court. The disposition of these forms shall be as set forth in this section, with one copy going in the child's patient record and the other being sent to the district court in a manner that preserves the child's anonymity. This procedure shall take place every sixty days following the child's last admission or a guardian ad litem's certification, whichever occurs first.
L. When a guardian ad litem determines that the child's parent, guardian or legal custodian does not understand or consent to the child's admission to a residential treatment or habilitation program, that the admission is not in the child's best interests, that the placement is inappropriate for the child or is inconsistent with the least drastic means principle or that the child's clinician has not recommended a continued stay by the child in the residential treatment or habilitation program, [the child shall be released or] involuntary placement procedures shall be initiated.
M. If the child's parent, guardian or legal custodian is unavailable to take custody of the child [and immediate discharge of the child would endanger the child], the residential treatment or habilitation program may detain the child until a safe and orderly discharge is possible. If the child's family refuses to take physical custody of the child, the residential treatment or habilitation program shall refer the case to the department for an abuse and neglect or family in need of court-ordered services investigation. The department may take the child into protective custody pursuant to the provisions of the Abuse and Neglect Act or the Family in Need of Services Act."
Section 2. Section 32A-6-14 NMSA 1978 (being Laws 1995, Chapter 207, Section 16) is amended to read:
"32A-6-14. TREATMENT AND HABILITATION OF CHILDREN--
LIABILITY.--
A. Any child shall have the right, with [or without] parental consent, to consent to and receive individual psychotherapy, group psychotherapy, guidance, counseling or other forms of verbal therapy that do not include any aversive stimuli or substantial deprivations.
B. No psychosurgery or convulsive treatment shall be performed on a child except by order of a court upon a finding that the treatment is necessary to prevent serious harm to the child. Consent of a child or [his] the child's parent, guardian or legal custodian to the treatment without a court order shall be invalid and shall not be a defense against any legal action that might be brought against the provider of the treatment.
C. No psychotropic medications or interventions involving aversive stimuli or substantial deprivation shall be administered to any child without proper consent of the child's parent. If the child is capable of understanding the proposed nature of treatment and its consequences and is capable of informed consent, [his] the child's consent shall be obtained before the treatment is performed.
D. Psychotropic medications or interventions involving aversive stimuli may be administered to a child under the age of fourteen only with the informed consent of the child's parent, guardian or legal custodian. When psychotropic medications or interventions involving aversive stimuli are administered to a child under the age of fourteen, the child's guardian ad litem shall be notified by the residential treatment or habilitation program.
E. Psychotropic medications or interventions involving aversive stimuli may be administered to a child fourteen years of age or older with the informed consent of the [child] child's parent. When psychotropic medications or interventions involving aversive stimuli are administered to a child fourteen years of age or older, the child's parent, guardian or legal custodian shall be notified by the residential treatment or habilitation program. If the consent of the child is not obtained, or if the mental health or developmental disabilities professional or physician who is proposing this or any other course of treatment or any other interested person believes that the child is incapable of informed consent, and the treatment provider or another interested person believes that the administration of the drug or program is necessary to protect the child from serious harm, any interested party may request that the children's court attorney petition the court for appointment of a treatment guardian to make a substitute decision for the child. The petition shall be served on the child and the child's attorney. A hearing on the petition shall be held within three court days. At the hearing, the child shall be represented by counsel and shall have the right to be present, to present witnesses and to cross-examine opposing witnesses. If after the hearing the court finds that the child is not capable of making treatment decisions, the court may order the appointment of a treatment guardian. When appointing a treatment guardian for the child, the court shall appoint the child's parent or guardian unless the child is in the custody of the department or the court finds that the child's parent or guardian is unable or unwilling to act in the child's best interests. When the child is in the custody of the department, the court shall appoint the child's legal custodian as treatment guardian, unless the court finds that the legal custodian is unable or unwilling to act in the child's best interests. The treatment guardian shall make a decision on behalf of the child whether to accept treatment, depending on whether the treatment appears to be in the child's best interests and is consistent with the least drastic means principle for accomplishing the treatment objective. In making this decision, the treatment guardian shall consult with the child and consider the child's expressed opinions, if any, even if those opinions do not constitute valid consent or rejection of treatment. The treatment guardian shall give consideration to any previous decisions made by the child in similar circumstances when the child was able to make treatment decisions. If a child, who is not a resident of a medical facility and for whom a treatment guardian has been appointed, refuses to comply with the decision of the treatment guardian, the treatment guardian may apply to the court for an enforcement order. The enforcement order may authorize any peace officer to take the child into custody and to transport the child to an evaluation facility and may authorize the facility to forcibly administer treatment. The treatment guardian shall consult with the physician or other professional who is proposing treatment, the child's attorney and interested friends or relatives of the child as the treatment guardian deems appropriate in making this decision. A child, physician or other professional wishing to appeal the decision of the treatment guardian may do so by filing an appeal with the court within three calendar days of receiving notice of the treatment guardian's decision. In such a decision, the child shall be represented by counsel. The court may overrule the treatment guardian's decision if it finds that decision to be against the best interests of the child.
F. When the court appoints a treatment guardian, it shall specify the length of time during which the treatment guardian may exercise treatment guardian powers, up to a maximum period of one year. If at the end of the guardianship period the treatment guardian believes that the child is still incapable of making treatment decisions, the treatment guardian shall petition the court for reappointment or for appointment of a new treatment guardian. The guardianship shall be extended or a new guardian shall be appointed only if the court finds the child is, at the time of the hearing, incapable of understanding and expressing an opinion regarding treatment decisions. The child shall be represented by counsel and shall have the right to be present and to present evidence at all such hearings.
G. If during the period of a treatment guardian's power the treatment guardian, the child, the treatment provider, a member of the child's family or the child's attorney believes that the child has regained competence to make treatment decisions, that person may petition the court for a termination of the treatment guardianship. If the court finds the child is capable of making treatment decisions, it shall terminate the power of the treatment guardian and restore to the child the power to make treatment decisions.
H. A treatment guardian shall only have those powers enumerated in the Children's Mental Health and Developmental Disabilities Act.
I. If a licensed physician believes that the administration of psychotropic medication is necessary to protect the child from serious harm that could occur while the provisions of this section are being satisfied, the licensed physician may administer the medication on an emergency basis. When medication is administered to a child on an emergency basis, the treating physician shall prepare and place in the child's medical records a report explaining the nature of the emergency and the reason that no treatment less drastic than administration of psychotropic medication without proper consent would have protected the child from serious harm. When medication is administered to a child on an emergency basis, the child's parent, guardian or legal custodian and the child's attorney or guardian ad litem shall be notified by the residential treatment or habilitation program.
J. Liability of persons providing mental health and developmental disability services to children shall be as follows:
(1) no mental health or developmental disability professional or treatment facility is required to detain, treat or provide services to a child when the child does not require detention, treatment or services;
(2) no mental health or developmental disability professional or facility may be held liable solely on the basis of misrepresentations made to them by a child seeking treatment or habilitation services or by a child's parent, provided the professional or the facility's staff acted in good faith;
(3) no mental health or developmental disability professional or facility may be held liable solely on the basis of reliance upon a tribal court order, provided the mental health or developmental professional or the facility's staff acted in good faith;
(4) nothing in the Children's Mental Health and Developmental Disabilities Act shall be construed to relieve any professional or facility from liability for negligence in the diagnosis, treatment or services provided to any child; and
(5) nothing in the Children's Mental Health and Developmental Disabilities Act shall be construed to relieve any professional or facility from duties placed on them by reporting laws relating to the detection of child abuse.
K. A parent shall be responsible for the cost of mental health services provided to the parent's child. This section does not affect the right of any child to receive free mental health or developmental disability services under any publicly supported program or the right of any parent to reimbursement from, or payment on the child's behalf by, any publicly supported program or private insurer; provided that the state shall pay no more than four hundred dollars ($400) per day for the cost of such services. The state may adjust this rate. However, any adjustment should be based on a cost analysis conducted by the department and reviewed by the legislative finance committee."
Section 3. REPEAL.--Section 32A-6-12 NMSA 1978 (being Laws 1995, Chapter 207, Section 14, as amended) is repealed.
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