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AN ACT

RELATING TO CHILDREN; CREATING A NEW CHILDREN'S MENTAL HEALTH

AND DEVELOPMENTAL DISABILITIES ACT THAT PROGRESSES FROM LEAST

TO MOST RESTRICTIVE SITUATIONS; REPEALING THE CHILDREN'S

MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES ACT.

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

Section 1. A new section of the Children's Code is

enacted to read:

"SHORT TITLE.--This act may be cited as the "Children's

Mental Health and Developmental Disabilities Act"."

Section 2. A new section of the Children's Code is

enacted to read:

"PURPOSES.--The purposes of the Children's Mental Health

and Developmental Disabilities Act are to:

A. provide children with access to appropriate

assessments, services and treatment;

B. provide children access to a continuum of

services to address their habilitation and treatment needs;

C. provide children with access to services for

identification, prevention and intervention for developmental

and mental health needs;

D. promote delivery of services in a culturally

appropriate, responsive and respectful manner;

E. protect the substantive and procedural rights

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of children regardless of service setting; and

F. encourage support for family as critical

members of the treatment or habilitation team whenever

clinically appropriate."

Section 3. A new section of the Children's Code is

enacted to read:

"SCOPE.--The provisions of the Children's Mental Health

and Developmental Disabilities Act shall apply to all children

in New Mexico except as otherwise set forth in the Children's

Code."

Section 4. A new section of the Children's Code is

enacted to read:

"DEFINITIONS.--As used in the Children's Mental Health

and Developmental Disabilities Act:

A. "aversive intervention" means any device or

intervention, consequences or procedure intended to cause pain

or unpleasant sensations, including interventions causing

physical pain, tissue damage, physical illness or injury;

electric shock; isolation; mechanical restraint; forced

exercise; withholding of food, water or sleep; humiliation;

water mist; noxious taste, smell or skin agents; and over-

correction;

B. "behavioral health services" means a

comprehensive array of professional and ancillary services for

the treatment, habilitation, prevention and identification of

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mental illnesses, behavioral symptoms associated with

developmental disabilities, substance abuse disorders and

trauma spectrum disorders;

C. "capacity" means a child's ability to:

(1) understand and appreciate the nature and

consequences of proposed health care, including its

significant benefits, risks and alternatives to proposed

health care; and

(2) make and communicate an informed health

care decision;

D. "chemical restraint" means a medication that is

not standard treatment for the patient's medical or

psychiatric condition that is used to control behavior or to

restrict a patient's freedom of movement;

E. "child" means a person who is a minor;

F. "clinician" means a person whose licensure

allows the person to make independent clinical decisions,

including a physician, licensed psychologist, psychiatric

nurse practitioner, licensed independent social worker,

licensed marriage and family therapist and licensed

professional clinical counselor;

G. "continuum of services" means a comprehensive

array of emergency, outpatient, intermediate and inpatient

services and care, including screening, early identification,

diagnostic evaluation, medical, psychiatric, psychological and

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social service care, habilitation, education, training,

vocational rehabilitation and career counseling;

H. "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;

(c) learning;

(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

other supports and services that are of lifelong or extended

duration that are individually planned or coordinated;

I. "evaluation facility" means a community mental

health or developmental disability program, a medical facility

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having psychiatric or developmental disability services

available or, if none of the foregoing is reasonably available

or appropriate, the office of a licensed physician or a

licensed psychologist, any of which shall be capable of

performing a mental status examination adequate to determine

the need for appropriate treatment, including possible

involuntary treatment;

J. "family" means persons with a kinship

relationship to a child, including the relationship that

exists between a child and a biological or adoptive parent,

relative of the child, a step-parent, a godparent, a member of

the child's tribe or clan or an adult with whom the child has

a significant bond;

K. "habilitation" means services, including

behavioral health services based on evaluation of the child,

that are aimed at assisting the child to prevent, correct or

ameliorate a developmental disability. The purpose of

habilitation is to enable the child to attain, maintain or

regain maximum functioning or independence. "Habilitation"

includes programs of formal, structured education and

treatment and rehabilitation services;

L. "individual instruction" means a child's

direction concerning a mental health treatment decision for

the child, made while the child has capacity and is fourteen

years of age or older, which is to be implemented when the

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child has been determined to lack capacity;

M. "least restrictive means principle" means the

conditions of habilitation or treatment for the child,

separately and in combination that:

(1) are no more harsh, hazardous or

intrusive than necessary to achieve acceptable treatment

objectives for the child;

(2) involve no restrictions on physical

movement and no requirement for residential care, except as

reasonably necessary for the administration of treatment or

for the protection of the child or others from physical

injury; and

(3) are conducted at the suitable available

facility closest to the child's place of residence;

N. "legal custodian" means a biological or

adoptive parent of a child unless legal custody has been

vested in a person, department or agency and also includes a

person appointed by an unexpired power of attorney;

O. "licensed psychologist" means a person who

holds a current license as a psychologist issued by the New

Mexico state board of psychologist examiners;

P. "likelihood of serious harm to self" means that

it is more likely than not that in the near future a child

will attempt to commit suicide or will cause serious bodily

harm to the child by violent or other self-destructive means,

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as evidenced by behavior causing, attempting or threatening

such harm, which behavior gives rise to a reasonable fear of

such harm from the child;

Q. "likelihood of serious harm to others" means

that it is more likely than not that in the near future the

child will inflict serious bodily harm on another person or

commit a criminal sexual offense, as evidenced by behavior

causing, attempting or threatening such harm, which behavior

gives rise to a reasonable fear of such harm from the child;

R. "mechanical restraint" means any device or

material attached or adjacent to the child's body that

restricts freedom of movement or normal access to any portion

of the child's body and that the child cannot easily remove

but does not include a protective or stabilizing device;

S. "medically necessary services" means clinical

and rehabilitative physical, mental or behavioral health

services that are:

(1) essential to prevent, diagnose or treat

medical conditions or are essential to enable the child to

attain, maintain or regain functional capacity;

(2) delivered in the amount, duration, scope

and setting that is clinically appropriate to the specific

physical, mental and behavioral health care needs of the

child;

(3) provided within professionally accepted

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standards of practice and national guidelines; and

(4) required to meet the physical, mental

and behavioral health needs of the child and are not primarily

for the convenience of the child, provider or payer;

T. "mental disorder" means a substantial disorder

of the child's emotional processes, thought or cognition, not

including a developmental disability, that impairs the

child's:

(1) functional ability to act in

developmentally and age-appropriate ways in any life domain;

(2) judgment;

(3) behavior; and

(4) capacity to recognize reality;

U. "mental health or developmental disabilities

professional" means a person who by training or experience is

qualified to work with persons with mental disorders or

developmental disabilities;

V. "out-of-home treatment or habilitation program"

means an out-of-home residential program that provides twenty-

four-hour care and supervision to children with the primary

purpose of providing treatment or habilitation to children.

"Out-of-home treatment or habilitation program" includes, but

is not limited to, treatment foster care, group homes and

residential treatment centers;

W. "parent" means a biological or adoptive parent

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of a child whose parental rights have not been terminated;

X. "physical restraint" means the use of physical

force without the use of any device or material that restricts

the free movement of all or a portion of a child's body, but

does not include:

(1) briefly holding a child in order to calm

or comfort the child;

(2) holding a child's hand or arm to escort

the child safely from one area to another; or

(3) intervening in a physical fight;

Y. "residential treatment or habilitation program"

means diagnosis, evaluation, care, treatment or habilitation

rendered inside or on the premises of a mental health or

developmental disabilities facility, hospital, clinic,

institution, supervisory residence or nursing home when the

child resides on the premises and where one or more of the

following measures is available for use:

(1) a mechanical device to restrain or

restrict the child's movement;

(2) a secure seclusion area from which the

child is unable to exit voluntarily;

(3) a facility or program designed for the

purpose of restricting the child's ability to exit

voluntarily; and

(4) the involuntary emergency administration

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of psychotropic medication;

Z. "restraint" means the use of a physical,

chemical or mechanical restraint;

AA. "seclusion" means the confinement of a child

alone in a room from which the child is physically prevented

from leaving;

BB. "treatment" means provision of behavioral

health services based on evaluation of the child, aimed at

assisting the child to prevent, correct or ameliorate a mental

disorder. The purpose of treatment is to enable the child to

attain, maintain or regain maximum functioning;

CC. "treatment team" means a team consisting of

the child, the child's parents unless parental rights have

specifically been limited pursuant to an order of a court,

legal custodian, guardian ad litem, treatment guardian,

clinician and any other professionals involved in treatment of

the child, other members of the child's family, if requested

by the child, and the child's attorney if requested by the

child, unless in the professional judgment of the treating

clinician for reasons of safety or therapy one or more members

should be excluded from participation in the treatment team;

and

DD. "treatment plan" means an individualized plan

developed by a treatment team based on assessed strengths and

needs of the child and family."

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Section 5. A new section of the Children's Code is

enacted to read:

"COMPETENCE.--The fact that a child has received

treatment or habilitation services or has been accepted at or

admitted to a hospital or institutional facility shall not

constitute a sufficient basis for a finding of incompetence or

the denial of a right or benefit of any nature that the child

would otherwise have."

Section 6. A new section of the Children's Code is

enacted to read:

"RIGHTS RELATED TO TREATMENT AND HABILITATION--SCOPE.--

The rights set forth in the Children's Mental Health and

Developmental Disabilities Act shall apply to a child who is

physically present and receiving treatment or habilitation

services in New Mexico. A child who receives treatment or

habilitation services shall have rights with respect to such

treatment or habilitation, regardless of where services are

provided."

Section 7. A new section of the Children's Code is

enacted to read:

"RIGHT TO INDIVIDUALIZED TREATMENT OR HABILITATION

SERVICES AND PLAN.--

A. A child receiving mental health or habilitation

services shall have the right to prompt treatment and

habilitation pursuant to an individualized treatment plan and

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consistent with the least restrictive means principle.

B. A preliminary treatment plan shall be prepared

within seven days of initial provision of mental health or

habilitation services.

C. An individualized treatment or habilitation

plan shall be prepared within twenty-one days of the provision

of mental health or habilitation services.

D. The individualized treatment or habilitation

plan shall be developed by the child's treatment team. The

child and the child's legal custodian and parent shall, to the

maximum extent possible, be involved in the preparation of the

child's individualized treatment or habilitation plan.

E. An individualized treatment or habilitation

plan shall include:

(1) a statement of the nature of the

specific problem and the specific needs of the child;

(2) a statement of the least restrictive

conditions necessary to achieve the purposes of treatment or

habilitation;

(3) a description of intermediate and long-

range goals, with the projected timetable for their

attainment;

(4) a statement and rationale for the plan

of treatment or habilitation for achieving these intermediate

and long-range goals;

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(5) specification of staff responsibility

and a description of the proposed staff involvement with the

child in order to attain these goals;

(6) criteria for release to less restrictive

settings for treatment or habilitation, criteria for discharge

and a projected date for discharge; and

(7) provision for access to cultural

practices and traditional treatments in accordance with the

child's assessed needs, and for an Indian child, culturally

competent placement, treatment and practices and, after

appropriate consent, tribal consultation.

F. A treatment or habilitation plan for a child in

an out-of-home treatment or habilitation program shall be

based on documented assessments that may include assessments

of mental status; intellectual function; psychological status,

including the use of psychological testing; psychiatric

evaluation and medication; education, vocation, psychosocial

assessment, physical status and the child's cultural needs.

G. The child's progress in attaining the goals and

objectives set forth in the individualized treatment or

habilitation plan shall be monitored and noted in the child's

records, and revisions in the plan may be made as

circumstances require. The members of the child's treatment

team shall be informed of major changes and shall have the

opportunity to participate in decisions."

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Section 8. A new section of the Children's Code is

enacted to read:

"SPECIAL RULES APPLICABLE TO AVERSIVE INTERVENTION.--

A. An intervention expressly listed in the

"aversive intervention" definition in Section 4 of the

Children's Mental Health and Developmental Disabilities Act is

prohibited.

B. A treatment plan containing an aversive

intervention not specifically listed in Section 4 of the

Children's Mental Health and Developmental Disabilities Act

shall be submitted to the human rights committee of the

department of health in advance of a meeting, except in

emergency situations. The human rights committee shall review

the plan along with the following additional information as

available:

(1) baseline or base rate data;

(2) review of the child's current situation

and environment;

(3) the child's history, including previous

interventions and results;

(4) the possible adverse effects, if any, of

the proposed treatment plan;

(5) success and failure criteria for

discontinuing the proposed aversive intervention; and

(6) a written evaluation by the clinician

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proposing the treatment plan or the intervention.

C. The human rights committee of the department of

health shall not approve an intervention specifically listed

in the definition of "aversive intervention" in Section 4 of

the Children's Mental Health and Developmental Disabilities

Act.

D. An invitation to participate in the review

shall be extended to the child, the child's legal custodian,

the clinician and any other mental health or developmental

disability professional who has proposed the treatment. A

written or oral presentation shall be made to the human rights

commission by the mental health or developmental disability

professional proposing the treatment.

E. The results of the human rights committee of

the department of health review shall be reported to the

clinician, the child and the child's legal custodian within

three working days.

F. The department shall work in collaboration with

the department of health to promulgate rules for implementing

a human rights committee pursuant to this section."

Section 9. A new section of the Children's Code is

enacted to read:

"RESTRAINT, GENERALLY.--A child has the right to be free

from the use of physical, chemical or mechanical restraint

used for the convenience of a caregiver or as a substitute for

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a planned program for behavior support. However, nothing in

this subsection shall prohibit the use of:

A. a protective apparatus needed to protect a

child from imminent harm, consistent with the least

restrictive means principle;

B. a medical restraint prescribed by a physician

or dentist as a health-related protective measure during the

conduct of a specific medical, surgical or dental procedure;

and

C. appropriate mechanical supports used to achieve

proper body position and balance."

Section 10. A new section of the Children's Code is

enacted to read:

"PHYSICAL RESTRAINT AND SECLUSION.--

A. In a mental health or developmental disability

treatment or habilitation setting, physical restraint and

seclusion shall not be used unless such use is necessary to

protect a child or another from imminent, serious physical

harm or unless another less intrusive, nonphysical

intervention has failed or been determined inappropriate.

B. A treatment and habilitation program shall

provide a child and the child's legal custodian with a copy of

the policies and procedures governing the use of restraint and

seclusion.

C. When a child is in a restraint or in seclusion,

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the mental health or developmental disabilities professional

shall document:

(1) any less intrusive interventions that

were attempted or determined to be inappropriate prior to the

incident;

(2) the precipitating event immediately

preceding the behavior that prompted the use of restraint or

seclusion;

(3) the behavior that prompted the use of a

restraint or seclusion;

(4) the names of the mental health or

developmental disabilities professional who observed the

behavior that prompted the use of restraint or seclusion;

(5) the names of the staff members

implementing and monitoring the use of restraint or seclusion;

and

(6) a description of the restraint or

seclusion incident, including the type and length of the use

of restraint or seclusion, the child's behavior during and

reaction to the restraint or seclusion and the name of the

supervisor informed of the use of restraint or seclusion.

D. The documentation shall be maintained in the

child's medical, mental health or educational record and

available for inspection by the child's legal custodian.

E. The child's legal custodian shall be notified

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immediately after each time restraint or seclusion is used.

If the legal custodian is not reasonably available, the mental

health or developmental disability professional shall document

all attempts to notify the legal custodian and shall send

written notification within one business day.

F. After an incident of restraint or seclusion,

the mental health or developmental disabilities professional

involved in the incident shall conduct a debriefing with the

child in which the precipitating event, unsafe behavior and

preventive measures are reviewed with the intent of reducing

or eliminating the need for future restraint or seclusion.

The debriefing shall be documented in the child's record and

incorporated into the next treatment plan review.

G. As promptly as possible, but under no

circumstances later than five calendar days after a child has

been subject to restraint or seclusion, the treatment team

shall meet to review the incident and revise the treatment

plan as appropriate. The treatment team shall identify any

known triggers to the behavior that necessitated the use of

restraint or seclusion and recommend preventive measures that

may be used to calm the child and eliminate the need for

restraint or seclusion. In a subsequent review of the

treatment plan, the treatment team shall review the success or

failure of preventive measures and revise the plan, if

necessary, based on such review.

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H. Physical restraint shall be applied only by a

mental health or developmental disabilities professional

trained in the appropriate use of physical restraint.

I. In applying physical restraint, a mental health

or developmental disabilities professional shall use only

reasonable force as is necessary to protect the child or other

person from imminent and serious physical harm.

J. Seclusion shall be applied only by mental

health or developmental disabilities professionals who are

trained in the appropriate use of seclusion.

K. At a minimum, a room used for seclusion shall:

(1) be free of objects and fixtures with

which a child could self-inflict bodily harm;

(2) provide the mental health or

developmental disabilities professional an adequate and

continuous view of the child from an adjacent area; and

(3) provide adequate lighting and

ventilation.

L. During the seclusion of a child, the mental

health or developmental disabilities professional shall:

(1) view the child placed in seclusion at

all times; and

(2) provide the child placed in seclusion

with:

(a) an explanation of the behavior that

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resulted in the seclusion; and

(b) instructions on the behavior

required to return to the environment.

M. At a minimum, a mental health or developmental

disabilities professional shall reassess a child in restraint

or seclusion every thirty minutes.

N. The use of a mechanical restraint is prohibited

in a mental health and developmental disability treatment

setting unless the treatment setting is certified by and meets

the requirements of the joint commission for the accreditation

of health care organizations.

O. This section does not prohibit a mental health

or developmental disabilities professional from using a

protective or stabilizing device:

(1) as prescribed by a health professional;

or

(2) for a child with a disability, in

accordance with a written treatment plan, including but not

limited to a school individualized education plan or behavior

intervention plan."

Section 11. A new section of the Children's Code is

enacted to read:

"TRAINING REQUIRED FOR A PROFESSIONAL WHO USES RESTRAINT

OR SECLUSION.--A mental health or developmental disabilities

professional who administers restraint or seclusion shall

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receive training in current professionally accepted practices

and standards regarding:

A. positive behavior interventions strategies and

supports;

B. functional behavior assessment and behavior

intervention planning;

C. prevention of self-injurious behaviors;

D. methods for identifying and defusing

potentially dangerous behavior; and

E. restraint and seclusion, to the extent that

each may be used in the treatment setting."

Section 12. A new section of the Children's Code is

enacted to read:

"PERSONAL RIGHTS OF A CHILD IN AN OUT-OF-HOME TREATMENT

OR HABILITATION PROGRAM--SCOPE.--

A. A child in an out-of-home treatment or

habilitation program shall have, in addition to other rights

set forth in the Children's Mental Health and Developmental

Disabilities Act, the right to:

(1) be placed in a manner consistent with

the least restrictive means principle;

(2) have access to the state's designated

protection and advocacy system and access to an attorney of

the child's choice, provided that the child is not entitled to

appointment of an attorney at public expense, except as

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otherwise provided in Subsection C of Section 13 of the

Children's Mental Health and Developmental Disabilities Act;

(3) receive visitors of the child's own

choosing on a daily basis, subject to restrictions imposed in

the best interests of the child by the child's clinician for

good cause. Hours during which visitors may be received shall

be limited only in the interest of effective treatment and the

reasonable efficiency of the program and shall be sufficiently

flexible to accommodate the individual needs of the child and

the child's visitors. Notwithstanding the provisions of this

subsection, each child has the right to receive visits from

the child's attorney, physician, psychologist, clergy,

guardian ad litem, representatives from the state's protection

and advocacy system or children, youth and families department

in private at any reasonable time, irrespective of visiting

hours, provided the visitor shows reasonable cause for

visiting at times other than normal visiting hours;

(4) have writing materials and postage

stamps reasonably available for the child's use in writing

letters and other communications. Reasonable assistance shall

be provided for writing, addressing and posting letters and

other documents upon request. The child has the right to send

and receive sealed and uncensored mail. The child has the

right to reasonable private access to telephones and, in cases

of personal emergencies when other means of communication are

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not satisfactory, the child shall be afforded reasonable use

of long distance calls; provided that for other than mail or

telephone calls to a court, an attorney, a physician, a

psychologist, a clergy, a guardian ad litem, a representative

from the state's protection and advocacy system or a social

worker, mailing or telephone privileges may be restricted by

the child's clinician for good cause shown. A child who is

indigent shall be furnished writing, postage and telephone

facilities without charge;

(5) reasonable access to a legal custodian

and a family member through visitation, videoconferencing,

telephone access and opportunity to send and receive mail.

In-person-visitation is preferred and reasonable efforts shall

be made to facilitate such visitation unless the child and

family choose otherwise. Access by legal custodians and

family members to the child shall be limited only in the

interest of effective treatment and the reasonable efficiency

of the program and shall be sufficiently flexible to

accommodate the individual needs of legal custodians and

family members. Treatment needs that justify limitation on

the access rights of a legal custodian or family member must

be specifically documented by the clinician in the child's

record and any such limitation automatically expires in seven

days;

(6) follow or abstain from the practice of

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religion. The program shall provide appropriate assistance in

this connection, including reasonable accommodations for

religious worship and transportation to nearby religious

services. A child who does not wish to participate in

religious practice shall be free from pressure to do so or to

accept religious beliefs;

(7) a humane psychological and physical

environment. The child shall be provided a comfortable bed

and adequate changes of linen and reasonable secure storage

space for personal possessions. Except when curtailed for

reasons of safety or therapy as documented in the child's

record by the child's physician, the child shall be afforded

reasonable privacy in sleeping and personal hygiene practices;

(8) reasonable daily opportunities for

physical exercise and outdoor exercise and reasonable access

to recreational areas and equipment, including equipment

adapted to the child's developmental and physical needs;

(9) a nourishing, well-balanced, varied and

appetizing diet;

(10) prompt and adequate medical attention

for a physical ailment. Each child shall receive a complete

physical examination upon admission, except when documentation

is provided that the child has had such examination within the

six months immediately prior to the current admission. Each

child shall receive a complete physical examination every

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twelve months thereafter;

(11) a clean, safe and comfortable

environment in a structure that complies with applicable fire

and safety requirements;

(12) appropriate medication and freedom from

unnecessary or excessive medication. Medication shall not be

used as discipline, as a substitute for programs, for the

convenience of staff or in quantities that interfere with the

child's treatment or habilitation program. No medication

shall be administered unless by written order of a clinician

licensed to prescribe medication or by an oral order noted

immediately in the patient's medical record and signed by that

clinician within twenty-four hours. All prescriptions for

psychotropic medications must be reviewed at least every

thirty days. Notation of each child's medication shall be

kept in the child's medical records and shall include a

notation by the clinician licensed to prescribe medication of

the behavioral or symptomatic baseline data upon which the

medication order was made; and

(13) a free public education. The child

shall be educated in regular classes with nondisabled children

whenever appropriate. In no event shall a child be allowed to

remain in an out-of-home treatment or habilitation program for

more than ten days without receiving educational services. If

the child's placement in an out-of-home treatment or

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habilitation program is required by an individualized

education plan that conforms to the requirements of state and

federal law, the sending school is responsible for the

provision of education to the child. In all other situations,

the local school district in which the out-of-home treatment

or habilitation program is located is responsible for the

provision of educational services to the child. Nothing in

this subsection shall limit a child's right to public

education under state, tribal or federal law.

B. A child receiving services in an out-of-home

treatment or habilitation program, including but not limited

to residential treatment or habilitation programs, shall be

provided notice of rights immediately upon admission to such

program."

Section 13. A new section of the Children's Code is

enacted to read:

"LEGAL REPRESENTATION OF CHILDREN.--

A. A child shall be represented by an attorney at

all commitment or treatment guardianship proceedings under the

Children's Mental Health and Developmental Disabilities Act if

the child is fourteen years of age or older or by a guardian

ad litem if the child is under fourteen years of age.

B. When a child has not retained an attorney or a

guardian ad litem in a commitment or treatment guardian

proceeding and is unable to do so, the court shall appoint an

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attorney or a guardian ad litem to represent the child in the

proceeding. Only an attorney with appropriate experience

shall be appointed as an attorney or a guardian ad litem for

the child. Whenever reasonable and appropriate, the court

shall appoint a guardian ad litem or attorney who is

knowledgeable about the child's cultural background.

C. A child of any age shall have access to the

state's designated protection and advocacy system and access

to an attorney of the child's choice, provided that the child

is not entitled to appointment of an attorney at public

expense, except as set forth in Subsections A and B of this

section.

D. A child shall not be represented or counseled

by an attorney or guardian ad litem who has a conflict of

interest, including but not limited to any conflict of

interest resulting from prior representation of the child's

parent, guardian, legal custodian or residential treatment or

habilitation program."

Section 14. A new section of the Children's Code is

enacted to read:

"CONSENT FOR SERVICES--CHILDREN UNDER FOURTEEN YEARS OF

AGE.--

A. Except as provided in Subsection B of this

section, the informed consent of a child's legal custodian

shall be required before treatment or habilitation, including

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psychotherapy or psychotropic medications, is administered to

a child under fourteen years of age.

B. A child under fourteen years of age may

initiate and consent to an initial assessment with a clinician

and for medically necessary early intervention service limited

to verbal therapy as set forth in this section. The purpose

of the initial assessment is to allow a clinician to interview

the child and determine what, if any, action needs to be taken

to ensure appropriate mental health or habilitation services

are provided to the child. The clinician may conduct an

initial assessment and provide medically necessary early

intervention service limited to verbal therapy with or without

the consent of the legal custodian if such service will not

extend beyond two calendar weeks. If, at any time, the

clinician has a reasonable suspicion that the child is an

abused or neglected child, the clinician shall immediately

make a child abuse and neglect report."

Section 15. A new section of the Children's Code is

enacted to read:

"CONSENT FOR SERVICES--CHILDREN FOURTEEN YEARS OF AGE OR

OLDER.--

A. A child fourteen years of age or older is

presumed to have capacity to consent to treatment without

consent of the child's legal custodian, including consent for

individual psychotherapy, group psychotherapy, guidance

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counseling, case management, behavioral therapy, family

therapy, counseling, substance abuse treatment or other forms

of verbal treatment that do not include aversive

interventions. Nothing in this section shall be interpreted

to provide a child fourteen years of age or older with

independent consent rights for the purposes of the provision

of special education and related services as set forth in

federal law.

B. Psychotropic medications may be administered to

a child fourteen years of age or older with the informed

consent of the child. When psychotropic medications are

administered to a child fourteen years of age or older, the

child's legal custodian shall be notified by the clinician.

C. A clinician or other mental health and

developmental disabilities professional shall promote the

healthy involvement of a child's legal custodians and family

members in developing and implementing the child's treatment

plan, including appropriate participation in treatment for

children fourteen years of age or older. However, nothing in

this section shall limit the rights of a child fourteen years

of age or older to consent to services and to consent to

disclosure of mental health records."

Section 16. A new section of the Children's Code is

enacted to read:

"CONSENT FOR SERVICES--DETERMINATION OF CAPACITY FOR

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CHILDREN FOURTEEN YEARS OF AGE OR OLDER.--

A. When a child fourteen years of age or older has

been determined according to the provisions of this section to

lack capacity, the child's legal custodian may make a mental

health or habilitation decision for the child unless the child

objects to such decision or the legal custodian's assumption

of authority to make mental health or developmental disability

treatment decisions or determination of lack of capacity.

Nothing in this subsection:

(1) permits a legal custodian to consent to

placement of a child in a residential treatment or

habilitation program without the proper consent of the child

if the child is fourteen years of age or older; or

(2) in any way, limits a child's right to

involuntary commitment procedures as set forth in the

Children's Mental Health and Developmental Disabilities Act.

B. The determination that a child fourteen years

of age or older lacks or has recovered capacity shall be made

by two clinicians, one of whom shall be a person who works

with children in the ordinary course of that clinician's

practice.

C. A child fourteen years of age or older shall

not be determined to lack capacity solely on the basis that

the child chooses not to accept the treatment recommended by

the mental health or developmental disabilities professional.

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D. A child fourteen years of age or older may at

any time contest a determination that the child lacks capacity

by a signed writing or by personally informing a clinician

that the determination is contested. A clinician who is

informed by a child that such determination is contested shall

promptly communicate that the determination is contested to

any supervising provider or institution at which the child is

receiving care. Such a challenge shall prevail unless

otherwise ordered by the court in a proceeding brought

pursuant to the treatment guardianship provisions of the

Children's Mental Health and Developmental Disabilities Act.

E. A determination of lack of capacity under the

Children's Mental Health and Developmental Disabilities Act

shall not be evidence of incapacity for any other purpose.

F. The legal custodian shall communicate an

assumption of authority as promptly as practicable to the

child fourteen years of age or older and to the clinician and

to the supervising mental health or developmental disability

treatment and habilitation provider.

G. If more than one legal custodian assumes

authority to act as an agent, the consent of both shall be

required for nonemergency treatment. In an emergency, the

consent of one legal custodian is sufficient, but the treating

mental health professional shall provide the other legal

custodian with oral notice followed by written documentation.

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H. If more than one legal custodian assumes

authority to act as an agent and the legal custodians do not

agree on a nonemergency mental health treatment decision and

the clinician is so informed, the clinician shall not treat

the child unless a treatment guardian is appointed pursuant to

the provisions of the Children's Mental Health and

Developmental Disabilities Act.

I. A legal custodian shall make treatment

decisions in accordance with a child's individual

instructions, if any, and other wishes to the extent known to

the legal custodian. Otherwise, the legal custodian shall

make decisions in accordance with the legal custodian's

determination of the child's best interests. In determining

the child's best interests, the legal custodian shall consider

the child's personal values to the extent known to the legal

custodian.

J. A mental health treatment decision made by a

legal custodian for a child fourteen years of age or older who

has been determined to lack capacity shall not be made solely

on the basis of the child's pre-existing physical or medical

condition or pre-existing or projected disability.

K. A mental health treatment decision made by a

legal custodian for a child fourteen years of age or older who

has been determined to lack capacity is effective without

judicial approval unless contested by the child.

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L. If no legal custodian or agent is reasonably

available to make mental health or habilitation decisions for

the child, any interested party may petition for the

appointment of a treatment guardian."

Section 17. A new section of the Children's Code is

enacted to read:

"TREATMENT GUARDIANSHIP PROCEEDINGS.--

A. If no legal custodian is reasonably available

to make mental health decisions for a child fourteen years of

age or older who has been determined to lack capacity or if a

clinician who proposes a course of treatment objects to a

challenge made by the child to a determination of incapacity,

the clinician shall request that the children's court attorney

petition the court for appointment of a treatment guardian to

make a substitute decision for the child.

B. In a treatment guardian proceeding, the court

shall appoint an attorney for the child unless the child

already has an attorney available.

C. A petition shall be served on the child and the

child's attorney. A hearing on the petition shall be held

within three business 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.

D. If, after the hearing, the court finds that the

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child is not capable of making treatment decisions and

treatment is needed, the court shall order the appointment of

a treatment guardian. When appointing a treatment guardian,

the court shall appoint the child's legal custodian unless the

legal custodian is not readily available or the court finds

that such an appointment is not in the child's best interests.

E. The treatment guardian shall make a decision on

behalf of the child based on the treatment guardian's best

judgment of whether the treatment appears to be in the child's

best interests and is consistent with the least restrictive

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.

The treatment guardian shall give consideration to previous

decisions made by the child in similar circumstances when the

child was able to make treatment decisions and shall make the

decision in accordance with the values of the child if known,

or in the best interests of the child if the values are not

known; provided that, if the child has given an individual

instruction that is available to the treatment guardian, the

instruction shall be followed.

F. If a child who is not a resident of a

residential treatment and habilitation program has a treatment

guardian and refuses to comply with the decision of the

treatment guardian, the treatment guardian may obtain an

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enforcement order. The enforcement order may authorize a

peace officer to take the child into custody or to transport

the child to an evaluation facility and may authorize the

facility to forcibly administer treatment. The treatment

guardian shall consult with the clinician who is proposing

treatment, the child's attorney or guardian ad litem and, as

deemed appropriate, interested friends or relatives of the

child. The evaluation facility shall comply with the

treatment guardian's decision unless the clinician finds it to

be against the best interests of the child.

G. A child, physician or other professional

wishing to contest the decision of the treatment guardian may

do so by filing a petition with the court within three

calendar days or the next business day, whichever is later, of

receiving notice of the treatment guardian's decision. The

child shall be represented by counsel in all proceedings

before the court. The court may overrule the treatment

guardian's decision if it finds that decision to be against

the best interests of the child. The court shall rule within

seven days of the filing of the petition.

H. If both a petition for an enforcement order and

a petition to contest the treatment guardian's decision are

filed, they shall be heard in the same proceeding at the same

time.

I. When the court appoints a treatment guardian,

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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 still lacks capacity, 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 does not have capacity to make treatment or habilitation

decisions at the time of the hearing. The court shall appoint

an attorney for the child, and the child shall have the right

to be present and to present evidence at all such hearings.

J. If, during the period of a treatment guardian's

power, the treatment guardian, the child, the treatment

provider or a member of the child's family believes that the

child has regained capacity, that person may petition the

court for a termination of the treatment guardianship. If the

court finds the child has regained capacity, it shall

terminate the power of the treatment guardian and restore to

the child the power to make treatment decisions.

K. A treatment guardian shall have only those

powers enumerated in the Children's Mental Health and

Developmental Disabilities Act.

L. If a clinician licensed to prescribe medication

believes that the administration of psychotropic medication is

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necessary to protect the child from serious harm that could

occur while the provisions of this section are being

satisfied, the licensed clinician may order or administer the

medication on an emergency basis. When medication is

administered to a child on an emergency basis, the clinician

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 restrictive 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

legal custodian and the child's attorney or guardian ad litem

shall be notified by the residential treatment or habilitation

program. If the child is not in a residential setting, the

clinician shall petition for a pickup order pursuant to

Section 19 of the Children's Mental Health and Developmental

Disabilities Act and have the child transported to a

residential facility where the medication will be

administered."

Section 18. A new section of the Children's Code is

enacted to read:

"INDIVIDUAL INSTRUCTIONS.--

A. A child fourteen years of age or older who has

capacity also has the right to direct the child's own

treatment in the event of later incapacity. To do so, the

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child may give an individual instruction regarding the child's

own treatment or habilitation. The individual instruction may

be limited to take effect only if a specified condition

arises.

B. An individual instruction shall be effective

without judicial approval and shall be written and signed by

the child and the child's legal custodian and signed by a

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

that the child and the child's legal custodian are known to

the witness, that they signed the individual instruction for

mental health treatment in the witness' presence and that they

appear to have capacity and are not acting under duress, fraud

or undue influence.

C. A witness to an individual instruction shall

not be related to the child or the child's legal custodian by

blood or marriage, the child's attending qualified health care

professional or an owner, operator or employee of a mental

health facility at which the child is receiving care or of any

parent organization, subsidiary or contractor of the mental

health facility.

D. If the child's legal custodian refuses to

consent to the individual instruction, the child may petition

the court for determination of whether the individual

instruction is in the child's best interest.

E. A child's legal custodian or treatment guardian

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shall make treatment decisions in accordance with the child's

individual instruction unless the treatment requested is

infeasible or unavailable or would not offer the child any

significant benefit as determined by the child's clinician.

F. The individual instruction shall be implemented

by the child's legal custodian under this section only upon

certification that the child lacks capacity. The instruction

shall cease to be effective upon a determination that the

child has recovered capacity.

G. Written certification that a child lacks or has

recovered capacity or that another condition exists that

affects an individual instruction shall be made according to

the provisions of the Children's Mental Health and

Developmental Disabilities Act. A child while having capacity

may revoke all or part of an individual instruction for mental

health treatment at any time and in any manner that

communicates an intent to revoke.

H. The fact that a child has executed a written

individual instruction for treatment shall not constitute an

indication of mental illness.

I. A clinician who knows the existence of an

individual instruction for mental health treatment, a

revocation or a challenge to a determination or certification

of lack of capacity shall obtain a copy and shall place it in

the child's health care record.

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J. A clinician shall disclose an individual

instruction for mental health treatment to other clinicians

only when it is determined that the disclosure is necessary to

provide treatment in accordance with an individual

instruction."

Section 19. A new section of the Children's Code is

enacted to read:

"EMERGENCY MENTAL HEALTH EVALUATION AND CARE.--

A. A peace officer may detain and transport a

child for emergency mental health evaluation and care in the

absence of a legally valid order from the court only if the

peace officer:

(1) has reasonable grounds to believe the

child has just attempted suicide;

(2) based upon personal observation and

investigation, has reasonable grounds to believe that the

child, as a result of a mental disorder, presents a likelihood

of serious harm to self or others and that immediate detention

is necessary to prevent such harm. The peace officer shall

convey the peace officer's beliefs to the admitting physician

or licensed psychologist immediately upon the officer's

arrival at the evaluation facility;

(3) has certification from a clinician that

the child, as a result of a mental disorder, presents a

likelihood of serious harm to self or others and that

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immediate intervention is necessary to prevent the harm; or

(4) has an involuntary placement order

issued by a tribal court that orders the child to be admitted

to an evaluation facility.

B. A peace officer shall immediately transport a

child detained under this section to an evaluation facility.

In the case of an extreme emergency, the child may be held for

a period of up to twenty-four hours in temporary emergency

placement in:

(1) a foster home licensed to provide

specialized or therapeutic care;

(2) a facility operated by a licensed child

services agency that meets standards promulgated by the

department for the care of children who present the likelihood

of serious harm to themselves or others; and

(3) residential care on an emergency basis.

C. A child shall not be held for the purposes of

emergency mental health evaluation or care in a jail or other

facility intended or used for the incarceration of adults

charged with criminal offenses or for the detention of

children alleged or adjudicated to be delinquent children.

D. The director of an evaluation facility shall

accomplish an emergency evaluation upon the request of a

child's legal custodian, a peace officer, a detention facility

administrator or the administrator's designee or upon the

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certification of a clinician. A court order is not required

under this section. If an application is made to a court, the

court's power to act in furtherance of an emergency admission

shall be limited to ordering that:

(1) the child be seen by a clinician prior

to transport to an evaluation facility; and

(2) a peace officer transport the child to

an evaluation facility.

E. The admitting physician or licensed

psychologist shall evaluate whether reasonable grounds exist

to detain the child for evaluation and treatment, and, if

reasonable grounds are found, the child shall be detained. If

the admitting physician or licensed psychologist determines

that reasonable grounds do not exist to detain the child for

evaluation and treatment, the child shall not be detained but

shall be released to the custody of the child's legal

custodian.

F. Upon arrival at an evaluation facility, the

child shall be informed orally and in writing by the

evaluation facility of the purpose and possible consequences

of the proceedings, the allegations in the petition, the

child's right to a hearing within seven days, the child's

right to counsel and the child's right to communicate with an

attorney or a guardian ad litem and an independent mental

health professional of the child's own choosing. A child

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shall have the right to receive necessary and appropriate

treatment.

G. A peace officer who transports a child to an

evaluation facility pursuant to the provisions of this section

shall not require a court order to be reimbursed by the

referring county.

H. If a child is transported to or detained at an

evaluation facility and is not released to the child's legal

custodian, the peace officer transporting the child shall give

written notice thereof as soon as possible within twenty-four

hours to the child's legal custodian, together with a

statement of the reason for taking the child into custody."

Section 20. A new section of the Children's Code is

enacted to read:

"CONSENT TO PLACEMENT IN A RESIDENTIAL TREATMENT OR

HABILITATION PROGRAM--CHILDREN YOUNGER THAN FOURTEEN YEARS OF

AGE.--

A. A child younger than fourteen years of age

shall not receive residential treatment for a mental disorder

or habilitation for a developmental disability, except as

provided in this section.

B. A child younger than fourteen years of age may

be admitted to a residential treatment or habilitation program

for a period not to exceed sixty days with the informed

consent of the child's legal custodian, subject to the

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requirements of this section.

C. In order to admit a child younger than fourteen

years of age to a residential treatment or habilitation

program, the child's 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 legal custodian's right to voluntarily consent to or

refuse the child's admission, the legal custodian's right to

request the child's immediate discharge from the residential

treatment program at any time and the legal custodian's rights

when the legal custodian requests the child's discharge and

the child's physician, licensed psychologist or the director

of the residential treatment or habilitation program

determines that the child needs continued treatment. The

residential treatment or habilitation program shall ensure

that each statement is clearly explained in the child's and

legal custodian's primary language, if that is their language

of preference, and in a manner appropriate to the child's and

legal custodian's developmental abilities. Each statement

shall be initialed by the child's legal custodian.

D. The legal custodian's executed consent to

admission document shall be filed with the child's treatment

records within twenty-four hours of the time of admission.

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E. Upon the filing of the 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 appointed pursuant to Section 25

of the Children's Mental Health and Developmental Disabilities

Act 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.

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 legal custodian and the child's clinician. The

guardian ad litem shall determine the following:

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(1) whether the child's 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 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 fourteen, 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

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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, unless there

is a showing that release of records would cause substantial

harm to the child. Upon reaching the age of eighteen, a

person who was admitted to a residential or treatment or

habilitation program as a child may petition the district

court for such records, and the district court shall provide

all court records regarding the admission to the petitioner,

including all copies in the court's possession.

J. A legal custodian who consents to admission of

a 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 legal custodian

informs the director, a physician or other member of the

residential treatment or habilitation program staff that the

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

legal custodian's care. The residential treatment or

habilitation program shall also notify the child's guardian ad

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litem. A child whose legal custodian requests the child's

immediate discharge shall be discharged, except when the

director of the residential treatment or habilitation 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 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 the child's

continued treatment within seven days of the request for

release.

K. A residential treatment or habilitation program

shall review the admission of a child at the end of a sixty-

day period after the date of initial admission, and the

child's physician or licensed psychologist shall review the

admission to 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

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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 legal custodian and the child's clinician

and ensure that the child's 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 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 restrictive 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.

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L. When a guardian ad litem determines that the

child's 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 restrictive 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 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 legal custodian

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 Court-

Ordered Services Act."

Section 21. A new section of the Children's Code is

enacted to read:

"VOLUNTARY RESIDENTIAL TREATMENT OR HABILITATION FOR

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CHILDREN FOURTEEN YEARS OF AGE OR OLDER.--

A. A child fourteen years of age or older shall

not receive treatment for mental disorders or habilitation for

developmental disabilities on a voluntary residential basis,

except as provided in this section.

B. An admission of a child fourteen years of age

or older to a residential treatment or habilitation program is

voluntary when it is medically necessary and consented to by

the child and the child's legal custodian as set forth in this

section, provided that the admission does not exceed sixty

days, subject to the requirements of this section.

C. To have a child voluntarily admitted to a

residential treatment or habilitation program, the child and

the child's legal custodian shall knowingly and voluntarily

execute, prior to admission, a child's voluntary consent to

admission document. The document shall include a clear

statement of the child's right to voluntarily consent or to

request an immediate discharge from the residential treatment

or habilitation program at any time; and the child's rights

when the child requests a discharge and the child's physician,

licensed psychologist or the director of the residential

treatment or habilitation program determines the child needs

continued treatment. The residential treatment or

habilitation program shall ensure that each statement is

clearly explained in the child's and legal custodian's primary

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language, if that is their language of preference, and in a

manner appropriate to the child's and legal custodian's

developmental abilities, and each statement shall be initialed

by the child and the child's legal custodian.

D. A child who is admitted on a voluntary basis

has a right to an attorney. Prior to admission, the

residential treatment or habilitation program shall inform the

child's legal custodian of the child's right to an independent

attorney within seventy-two hours. If the child's legal

custodian is unable to obtain an independent attorney, the

legal custodian may petition the court to appoint an attorney

for the child. If the child's legal custodian obtains an

independent attorney for the child, the legal custodian shall

notify the residential treatment or habilitation program of

that attorney's name within seventy-two hours of the child's

voluntary admission.

E. The child's executed voluntary consent to

admission document shall be filed in the child's treatment

record within twenty-four hours of the time of admission.

F. Upon the filing of the child's voluntary

consent to admission document in the child's treatment record,

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 of the admission, giving the

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child's name, date of birth and the date and place of

admission. Upon receipt of notice of a child's voluntary

admission to a residential treatment or habilitation program,

the court or special commissioner shall establish a

sequestered court file.

G. If within seventy-two hours of the child's

voluntary admission the child has not met with an independent

attorney and the child's legal custodian has not notified the

residential treatment or habilitation program of the name of

the child's independent attorney, the residential treatment or

habilitation program shall during the next business day

petition the court to appoint an attorney. When the court

receives the petition, the court shall appoint an attorney.

H. If within seventy-two hours of the child's

voluntary admission the child has met with an independent

attorney or the child's legal custodian has notified the

residential treatment or habilitation program of the name of

the child's independent attorney, the residential treatment or

habilitation program shall during the next business day notify

the court or the special commissioner of the name of the

child's independent attorney.

I. Within seven days of the admission, an attorney

representing the child pursuant to the provisions of the

Children's Mental Health and Developmental Disabilities Act

shall meet with the child. At the meeting with the child, the

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attorney shall explain to the child the following:

(1) the child's right to an attorney;

(2) the child's right to terminate the

child's voluntary admission and the procedures to effect

termination;

(3) the effect of terminating the child's

voluntary admission and options of the clinician and other

interested parties to petition for an involuntary admission;

and

(4) the child's rights under the provisions

of the Children's Mental Health and Developmental Disabilities

Act, including the right to:

(a) legal representation;

(b) a presumption of competence;

(c) receive daily visitors of the

child's choice;

(d) receive and send uncensored mail;

(e) have access to telephones;

(f) follow or abstain from the practice

of religion;

(g) a humane and safe environment;

(h) physical exercise and outdoor

exercise;

(i) a nourishing, well-balanced, varied

and appetizing diet;

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(j) medical treatment;

(k) educational services;

(l) freedom from unnecessary or

excessive medication;

(m) individualized treatment and

habilitation; and

(n) participation in the development of

the individualized treatment plan and access to that plan on

request.

J. If the attorney determines that the child

understands the child's rights and that the child voluntarily

and knowingly desires to remain as a patient in a residential

treatment or habilitation program, the attorney shall so

certify on a form designated by the supreme court. The form,

when completed by the attorney, shall be filed in the child's

patient record at 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

attorney's statement shall not identify the child by name.

K. Upon reaching the age of fourteen, a child who

was a voluntary admittee to a residential treatment or

habilitation program may petition the district court for the

records of the court regarding all matters pertinent to the

child's voluntary admission to a residential treatment or

habilitation program. The court, upon receipt of the petition

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and upon a determination that the petitioner was in fact the

child who was a voluntary admittee to a residential treatment

or habilitation program, shall give all court records

regarding the admission to the petitioner, including all

copies in the court's possession unless there is a showing

that provision of records would cause substantial harm to the

child. A person who was admitted to a residential or

treatment or habilitation program as a child, upon reaching

the age of eighteen, may petition the district court for such

records and the district court shall provide all court records

regarding the admission to the petitioner, including all

copies in the court's possession.

L. Any child voluntarily admitted to a residential

treatment or habilitation program has the right to an

immediate discharge from the residential treatment or

habilitation program upon the child's request, except as

provided in this section. If a child informs the director,

clinician or other member of the residential treatment or

habilitation program staff that the child desires to be

discharged from the voluntary program, the director, clinician

or other staff member shall provide for the child's immediate

discharge. The residential treatment or habilitation program

shall not require that the child's request be in writing.

Upon the request, the residential treatment or habilitation

program shall notify the child's legal custodian to take

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custody of the child and remit the child to the legal

custodian's care. The residential treatment or habilitation

program shall also notify the child's attorney. If the

child's 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 legal custodian 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 Court-Ordered

Services Act. A child requesting immediate discharge shall be

discharged, except in those situations when the director of

the residential treatment or habilitation 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 or habilitation services as

otherwise provided under the Children's Mental Health and

Developmental Disabilities Act. In that event, the director,

physician or licensed psychologist, after making the

determination, shall, on the first business day following the

child's request for release from the voluntary program,

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request that the child's court attorney initiate involuntary

placement proceedings. The child's court attorney may

petition for such a placement. The child has a right to a

hearing on the child's continued treatment within five days of

the child's request for release.

M. A child who is voluntarily admitted to a

residential treatment or habilitation program shall have the

child's voluntary admission reviewed at the end of a sixty-day

period from the date of the child's initial admission to the

program. The review shall be accomplished by having the

child's physician or licensed psychologist review the child's

treatment and determine whether it would be in the best

interests of the child to continue the voluntary admission.

If the child's physician or licensed psychologist concludes

that continuation of treatment 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 record. The residential

treatment or habilitation program shall notify the child's

attorney at least seven days prior to the date that the sixty-

day period is to end or, if necessary, request an attorney

pursuant to the provisions of the Children's Mental Health and

Developmental Disabilities Act. The attorney shall then

personally meet with the child and ensure that the child

understands the child's rights as set forth in this section,

that the child understands the method for voluntary

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termination of the child's admission and that the child

knowingly and voluntarily consents to the child's continued

treatment. If the attorney determines that the child

understands these rights and that the child voluntarily and

knowingly desires to remain in the residential treatment or

habilitation program and that the clinician has recommended

the continued stay in the program, the attorney 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 from the last admission or attorney's

certification, whichever comes first.

N. If the attorney determines that the child does

not voluntarily desire to remain in the program or if the

child's clinician has not recommended continued stay by the

child in the residential treatment or habilitation program,

the child shall be released pursuant to the involuntary

placement procedures set forth in this section and the

Children's Mental Health and Developmental Disabilities Act

shall be followed."

Section 22. A new section of the Children's Code is

enacted to read:

"INVOLUNTARY RESIDENTIAL TREATMENT.--

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A. A child may not receive treatment for mental

disorders or habilitation for developmental disabilities on an

involuntary residential basis except as provided in this

section.

B. A child afforded rights under the Children's

Mental Health and Developmental Disabilities Act shall be

advised of those rights at that child's first appearance

before the court on a petition under that act.

C. A child has the right to be placed in a

residential treatment or habilitation program only when the

placement is medically necessary.

D. A person who believes that a child, as a result

of a mental disorder or developmental disability, is in need

of residential mental health or developmental disabilities

services may request that a children's court attorney file a

petition with the court for the child's involuntary placement.

The petition shall include a detailed description of the

symptoms or behaviors of the child that support the

allegations in the petition, a list of prospective witnesses

for involuntary placement and a summary of matters to which

they will testify. The petition should also contain a

discussion of the alternatives to residential care that have

been considered and the reasons for rejecting the

alternatives. A copy of the petition shall be served upon the

child, the child's legal custodian and the child's attorney or

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guardian ad litem.

E. The court shall, upon receiving the petition,

appoint counsel for the child unless the child has retained an

attorney or an attorney or guardian ad litem has been

appointed pursuant to the provisions of the Children's Mental

Health and Developmental Disabilities Act. The attorney or

guardian ad litem shall represent the child at all stages of

the proceedings.

F. If, after interviewing the child, the child's

attorney or guardian ad litem determines that the child

understands the child's rights and desires to waive the

child's presence at the hearing on the issue of involuntary

placement, the attorney or guardian ad litem shall submit a

verified written statement to the court explaining the

attorney's or guardian ad litem's understanding of the child's

intent. If the court is satisfied that the child has

voluntarily and knowingly waived the child's right to be

present at the hearing, the child may be involuntarily placed

in a residential treatment or habilitation program at a

hearing at which the child is not present. By waiving the

right to be present at the involuntary placement hearing, the

child waives no other rights.

G. An involuntary placement hearing shall be held

within seven days of the emergency admission of the child to a

residential treatment or habilitation program under this

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section. An involuntary placement hearing shall be held

within five days from a child's declaration that the child

desires to terminate the child's voluntary admission to a

residential treatment or habilitation program if the child's

clinician has assessed and documented that involuntary

placement is necessary.

H. At the involuntary placement hearing, the child

shall:

(1) at all times be represented by counsel;

(2) have the right to present evidence,

including the testimony of a mental health and developmental

disabilities professional of the child's own choosing;

(3) have the right to cross-examine

witnesses;

(4) have the right to a complete record of

the proceedings; and

(5) have the right to an expeditious appeal

of an adverse ruling.

I. The legal custodian of a child involved in an

involuntary placement hearing shall have automatic standing as

witnesses and shall be allowed to testify by telephone or

through a written affidavit if circumstances make personal

testimony too burdensome.

J. The court shall include in its findings either

a statement of the child's legal custodian's opinion about

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whether the child should be involuntarily placed in a

residential treatment or habilitation program, a statement

detailing the efforts made to ascertain the legal custodian's

opinion or a statement of why it was not in the child's best

interests to have the legal guardian involved.

K. The court shall make an order involuntarily

placing the child in a residential treatment or habilitation

program upon a showing by clear and convincing evidence that:

(1) as a result of mental disorder or

developmental disability the child needs the treatment or

habilitation services proposed;

(2) as a result of mental disorder or

developmental disability the child is likely to benefit from

the treatment or habilitation services proposed;

(3) the proposed involuntary placement is

consistent with the treatment or habilitation needs of the

child; and

(4) the proposed involuntary placement is

consistent with the least restrictive means principle.

L. If the court determines that the child does not

meet the criteria for involuntary placement set forth in this

section, it may order the child to undergo nonresidential

treatment or habilitation as may be appropriate and necessary

or it may order no treatment. If the court determines that

the child should not be involuntarily placed in a residential

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treatment or habilitation program and if the child's legal

custodian refuses to take custody of the child, the court

shall refer the case to the department for an abuse and

neglect investigation. The department may take the child into

custody pursuant to the provisions of the Abuse and Neglect

Act or the Family in Need of Court-Ordered Services Act.

M. A child receiving involuntary residential

treatment or habilitation services for a mental disorder or

developmental disability under this section shall have a right

to periodic review of the child's involuntary placement at the

end of every involuntary placement period. An involuntary

placement period shall not exceed sixty days. At the

expiration of an involuntary placement period, the child may

continue in residential care only after a new involuntary

placement hearing and entry of a new order of involuntary

placement for one involuntary placement period. Nothing set

forth in the Children's Mental Health and Developmental

Disabilities Act prohibits a child, who has been involuntarily

placed and thereafter discharged and released, from

subsequently voluntarily consenting to admission under the

provisions of that act.

N. If the person seeking the involuntary placement

of a child to a residential treatment or habilitation program

believes that the child is likely to cause serious bodily harm

to self or to others during the period that would be required

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to hold an involuntary placement hearing as provided in this

section, the child may be admitted to residential care on an

emergency basis. If the child is admitted on an emergency

basis, appointment of counsel and other procedures shall then

take place as provided elsewhere in this section."

Section 23. A new section of the Children's Code is

enacted to read:

"LIABILITY OF PERSONS PROVIDING TREATMENT OR

HABILITATION SERVICES.--

A. A person providing mental health and

developmental disability services to a child and a treatment

facility providing mental health and developmental disability

services to a child shall not be liable if:

(1) the child does not require detention,

treatment or services;

(2) the admission or treatment was made

solely on the basis of misrepresentations by a child seeking

treatment or habilitation services or by a child's legal

custodian, provided the professional or the facility's staff

acted in good faith; or

(3) the admission was made 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.

B. Nothing in the Children's Mental Health and

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Developmental Disabilities Act shall be construed to relieve

any professional or facility from liability for negligence or

intentional misconduct in the diagnosis, treatment or services

provided to any child.

C. Nothing in the Children's Mental Health and

Developmental Disabilities Act shall be construed to relieve

any professional or facility from a duty pursuant to reporting

laws relating to the detection of child abuse."

Section 24. A new section of the Children's Code is

enacted to read:

"DISCLOSURE OF INFORMATION.--

A. Except as otherwise provided in the Children's

Mental Health and Developmental Disabilities Act, a person

shall not, without the authorization of the child, disclose or

transmit any confidential information from which a person

well-acquainted with the child might recognize the child as

the described person or any code, number or other means that

could be used to match the child with confidential information

regarding the child.

B. When the child is under fourteen years of age,

the child's legal custodian is authorized to consent to

disclosure on behalf of the child. Information shall also be

disclosed to a court-appointed guardian ad litem without

consent of the child or the child's legal custodian.

C. A child fourteen years of age or older with

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capacity to consent to disclosure of confidential information

shall have the right to consent to disclosure of mental health

and habilitation records. A legal custodian who is authorized

to make health care decisions for a child has the same rights

as the child to request, receive, examine, copy and consent to

the disclosure of medical or other health care information

when evidence exists that such a child whose consent to

disclosure of confidential information is sought does not have

capacity to give or withhold valid consent and does not have a

treatment guardian appointed by a court. If the legal

custodian is not authorized to make decisions for a child

under the Children's Mental Health and Developmental

Disabilities Act, the person seeking authorization shall

petition the court for the appointment of a treatment guardian

to make a decision for such a child.

D. Authorization from the child shall not be

required for the disclosure or transmission of confidential

information when the disclosure or transmission:

(1) is necessary for treatment of the child

and is made in response to a request from a clinician;

(2) is necessary to protect against a clear

and substantial risk of imminent serious physical injury or

death inflicted by the child on self or another;

(3) is determined by a clinician not to

cause substantial harm to the child and a summary of the

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child's assessment, treatment plan, progress, discharge plan

and other information essential to the child's treatment is

made to a child's legal custodian or guardian ad litem;

(4) is to the primary caregiver of the child

and the information disclosed was necessary for the continuity

of the child's treatment in the judgment of the treating

clinician who discloses the information;

(5) is to an insurer contractually obligated

to pay part or all of the expenses relating to the treatment

of the child at the residential facility. The information

disclosed shall be limited to data identifying the child,

facility and treating or supervising physician and the dates

and duration of the residential treatment. It shall not be a

defense to an insurer's obligation to pay that the information

relating to the residential treatment of the child, apart from

information disclosed pursuant to this section, has not been

disclosed to the insurer;

(6) is to a protection and advocacy

representative pursuant to the federal Developmental

Disabilities Assistance and Bill of Rights Act and the federal

Protection and Advocacy for Mentally Ill Individuals

Amendments Act of 1991; and

(7) is pursuant to a court order issued for

good cause shown after notice to the child and the child's

legal custodian and opportunity to be heard is given. Before

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issuing an order requiring disclosure, the court shall find

that:

(a) other ways of obtaining the

information are not available or would not be effective; and

(b) the need for the disclosure

outweighs the potential injury to the child, the clinician-

child relationship and treatment services.

E. A disclosure ordered by the court shall be

limited to the information that is essential to carry out the

purpose of the disclosure. Disclosure shall be limited to

those persons whose need for the information forms the basis

for the order. An order by the court shall include such other

measures as are necessary to limit disclosure for the

protection of the child, including sealing from public

scrutiny the record of a proceeding for which disclosure of a

child's record has been ordered.

F. An authorization given for the transmission or

disclosure of confidential information shall not be effective

unless it:

(1) is in writing and signed; and

(2) contains a statement of the child's

right to examine and copy the information to be disclosed, the

name or title of the proposed recipient of the information and

a description of the use that may be made of the information.

G. The child has a right of access to confidential

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information about the child and has the right to make copies

of information about the child and submit clarifying or

correcting statements and other documentation of reasonable

length for inclusion with the confidential information. The

statements and other documentation shall be kept with the

relevant confidential information, shall accompany it in the

event of disclosure and shall be governed by the provisions of

this section to the extent the statements or other

documentation contain confidential information. Nothing in

this subsection shall prohibit the denial of access to the

records when a physician or other mental health or

developmental disabilities professional believes and notes in

the child's medical records that the disclosure would not be

in the best interests of the child. In all cases, the child

has the right to petition the court for an order granting

access.

H. Information concerning a child disclosed under

this section shall not be released to any other person, agency

or governmental entity or placed in files or computerized data

banks accessible to any persons not otherwise authorized to

obtain information under this section. Notwithstanding the

confidentiality provisions of the Delinquency Act and the

Abuse and Neglect Act, information disclosed under this

section shall not be re-released without the express consent

of the child or legal custodian authorized under the

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Children's Mental Health and Developmental Disabilities Act to

give consent and any other consent necessary for redisclosure

in conformance with state and federal law, including consent

that may be required from the professional or the facility

that created the document.

I. Nothing in the Children's Mental Health and

Developmental Disabilities Act shall limit the confidentiality

rights afforded by federal statute or regulation.

J. The department shall promulgate rules for

implementing disclosure of records pursuant to this section

and in compliance with state and federal law and the

Children's Court Rules."

Section 25. A new section of the Children's Code is

enacted to read:

"SPECIAL COMMISSIONER.--A court may conduct the

proceedings required by the Children's Mental Health and

Developmental Disabilities Act or may, by general or special

order, appoint a special commissioner to do so. The special

commissioner shall be a licensed attorney. Upon conclusion of

the hearing, the special commissioner shall file findings and

recommendations with the court promptly."

Section 26. A new section of the Children's Code is

enacted to read:

"TRANSPORTATION.--When a child is to be placed in a

residential treatment or habilitation program or to be

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returned to the program during placement, the court ordering

the placement or authorizing the return of the child may

direct the sheriff, the New Mexico state police or other

appropriate persons to furnish suitable transportation in

order to effect the placement or return by contacting the

department for directions as to the destination of the child."

Section 27. A new section of the Children's Code is

enacted to read:

"VIOLATION OF A CHILD'S RIGHTS.--A child who believes

that rights established by the Children's Mental Health and

Developmental Disabilities Act or by the constitution of the

United States or the constitution of New Mexico have been

violated shall have a right to petition the court for redress.

The child shall be represented by counsel. The court shall

grant relief as is appropriate, subject to the provisions of

the Tort Claims Act."

Section 28. A new section of the Children's Code is

enacted to read:

"COST OF CARE.--An indigent child may receive care and

treatment at a state-operated facility without charge. The

governing authorities of the facility may require payment for

the cost of care and treatment from others pursuant to

established fee schedules based on ability to pay."

Section 29. A new section of the Children's Code is

enacted to read:

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"RECOGNITION OF TRIBAL COURT INVOLUNTARY PLACEMENT

ORDERS.--

A. Notwithstanding the provisions of any other law

to the contrary, an involuntary placement order for a child

issued by a tribal court shall be recognized and enforced by

the district court for the judicial district in which the

tribal court is located. The involuntary placement order

shall be filed with the clerk of the district court. The

tribal court, as the court of original jurisdiction, shall

retain jurisdiction and authority over the child.

B. A child placed in an evaluation facility

pursuant to the provisions of this section shall be subject to

the continuing jurisdiction of the tribal court; provided that

any decisions regarding discharge or release of the child from

the evaluation facility shall be made by the administrator of

that facility. Prior to discharging or releasing the child,

the facility shall:

(1) make custody arrangements with the

child's legal custodian; and

(2) establish a plan for the child's

aftercare.

C. When an Indian child is placed in an evaluation

facility pursuant to the provisions of this section, any

outpatient treatment of the Indian child shall be provided in

the same manner as treatment would be provided for any other

child.

D. When an Indian child requires emergency

treatment or habilitation, that treatment or habilitation

shall be provided pursuant to the provisions of the Children's

Mental Health and Developmental Disabilities Act.

E. An Indian child residing on or off a

reservation, as a citizen of this state, shall have the same

right to services available to other children of the state."

Section 30. TEMPORARY PROVISION.--In keeping with

Section 8 of the Children's Mental Health and Developmental

Disabilities Act, the department of health shall promulgate

rules for the operation of a human rights committee charged

with review and evaluation of a treatment plan that includes

aversive intervention.

Section 31. REPEAL.--Sections 32A-6-1 through 32A-6-22

NMSA 1978 (being Laws 1995, Chapter 207, Sections 1 through 10

and 12 through 24, as amended) are repealed.

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