HOUSE BILL 220

51st legislature - STATE OF NEW MEXICO - first session, 2013

INTRODUCED BY

Jane E. Powdrell-Culbert

AN ACT

RELATING TO MENTAL HEALTH; AMENDING SECTIONS OF THE MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES CODE TO EXPAND THE CLASS OF HEALTH PRACTITIONERS PERMITTED TO CERTIFY THAT A PERSON PRESENTS A LIKELIHOOD OF SERIOUS HARM TO THE PERSON OR OTHERS; RECONCILING MULTIPLE AMENDMENTS TO THE SAME SECTION OF LAW IN LAWS 2007.

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

     SECTION 1. Section 43-1-3 NMSA 1978 (being Laws 1977, Chapter 279, Section 2, as amended by Laws 2007, Chapter 46, Section 42 and by Laws 2007, Chapter 325, Section 9) is amended to read:

     "43-1-3. DEFINITIONS.--As used in the Mental Health and Developmental Disabilities Code:

          A. "aversive stimuli" means anything that, because it is believed to be unreasonably unpleasant, uncomfortable or distasteful to the client, is administered or done to the client for the purpose of reducing the frequency of a behavior, but does not include verbal therapies, physical restrictions to prevent imminent harm to self or others or psychotropic medications that are not used for purposes of punishment;

          B. "client" means any patient who is requesting or receiving mental health services or any person requesting or receiving developmental disabilities services or who is present in a mental health or developmental disabilities facility for the purpose of receiving such services or who has been placed in a mental health or developmental disabilities facility by the person's parent or guardian or by any court order;

          C. "code" means the Mental Health and Developmental Disabilities Code;

          D. "consistent with the least drastic means principle" means that the habilitation or treatment and the conditions of habilitation or treatment for the client, separately and in combination:

                (1) are no more harsh, hazardous or intrusive than necessary to achieve acceptable treatment objectives for the client;

                (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 client or others from physical injury; and

                (3) are conducted at the suitable available facility closest to the client's place of residence;

          E. "convulsive treatment" means any form of mental health treatment that depends upon creation of a convulsion by any means, including but not limited to electroconvulsive treatment and insulin coma treatment;

          F. "court" means a district court of New Mexico;

          G. "department" or "division" means the behavioral health services division of the human services department;

          H. "developmental disability" means a disability of a person that is attributable to mental retardation, cerebral palsy, autism or neurological dysfunction that requires treatment or habilitation similar to that provided to persons with mental retardation;

          I. "evaluation facility" means a community mental health or developmental disability program or a medical facility that has psychiatric or developmental disability services available, including the New Mexico behavioral health institute at Las Vegas, the Los Lunas medical center or, if none of the foregoing is reasonably available or appropriate, the office of a licensed physician or a certified psychologist, and that is capable of performing a mental status examination adequate to determine the need for involuntary treatment;

          J. "experimental treatment" means any mental health or developmental disabilities treatment that presents significant risk of physical harm, but does not include accepted treatment used in competent practice of medicine and psychology and supported by scientifically acceptable studies;

          K. "grave passive neglect" means failure to provide for basic personal or medical needs or for one's own safety to such an extent that it is more likely than not that serious bodily harm will result in the near future;

          L. "habilitation" means the process by which professional persons and their staff assist a client with a developmental disability in acquiring and maintaining those skills and behaviors that enable the person to cope more effectively with the demands of the person's self and environment and to raise the level of the person's physical, mental and social efficiency. "Habilitation" includes but is not limited to programs of formal, structured education and treatment;

          M. "licensed practitioner" means one of the following individuals:

                (1) a physician licensed pursuant to the Medical Practice Act;

                (2) an osteopathic physician licensed pursuant to Chapter 61, Article 10 NMSA 1978;

                (3) a psychologist licensed pursuant to the Professional Psychologist Act;

                (4) a certified psychiatric nurse practitioner licensed pursuant to the Nursing Practice Act;

                (5) a psychiatric physician assistant licensed as a physician assistant pursuant to the Medical Practice Act or as an osteopathic physician assistant pursuant to the Osteopathic Physicians' Assistants Act;

                (6) an independent social worker licensed pursuant to the Social Work Practice Act; or

                (7) a professional clinical mental health counselor licensed pursuant to the Counseling and Therapy Practice Act;

          [M.] N. "likelihood of serious harm to oneself" means that it is more likely than not that in the near future the person will attempt to commit suicide or will cause serious bodily harm to the person's self by violent or other self-destructive means, including but not limited to grave passive neglect;

          [N.] O. "likelihood of serious harm to others" means that it is more likely than not that in the near future a person will inflict serious, unjustified 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 person;

          [O.] P. "mental disability" means substantial disorder of a person's emotional processes, thought or cognition that grossly impairs judgment, behavior or capacity to recognize reality, but does not mean developmental disability;

          [P.] Q. "mental health or developmental disabilities professional" means a physician or other professional who by training or experience is qualified to work with persons with a mental disability or a developmental disability;

          [Q. "physician" or "certified psychologist", when used for the purpose of hospital admittance or discharge, means a physician or certified psychologist who has been granted admitting privileges at a hospital licensed by the department of health, if such privileges are required;]

          R. "psychosurgery":

                (1) means those operations currently referred to as lobotomy, psychiatric surgery and behavioral surgery and all other forms of brain surgery if the surgery is performed for the purpose of the following:

                     (a) modification or control of thoughts, feelings, actions or behavior rather than the treatment of a known and diagnosed physical disease of the brain;

                     (b) treatment of abnormal brain function or normal brain tissue in order to control thoughts, feelings, actions or behavior; or

                     (c) treatment of abnormal brain function or abnormal brain tissue in order to modify thoughts, feelings, actions or behavior when the abnormality is not an established cause for those thoughts, feelings, actions or behavior; and

                (2)  does not include prefrontal sonic treatment in which there is no destruction of brain tissue;

          S. "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 or supervisory residence or nursing home when the client resides on the premises; and

          T. "treatment" means any effort to accomplish a significant change in the mental or emotional condition or behavior of the client."

     SECTION 2. Section 43-1-10 NMSA 1978 (being Laws 1977, Chapter 279, Section 9, as amended) is amended to read:

     "43-1-10. EMERGENCY MENTAL HEALTH EVALUATION AND CARE.--

          A. A peace officer may detain and transport a person for emergency mental health evaluation and care in the absence of a legally valid order from the court only if:

                (1) the person is otherwise subject to lawful arrest;

                (2) the peace officer has reasonable grounds to believe the person has just attempted suicide;

                (3) the peace officer, based upon [his] the peace officer's own observation and investigation, has reasonable grounds to believe that the person, as a result of a mental [disorder] disability, presents a likelihood of serious harm to himself or herself or to others and that immediate detention is necessary to prevent such harm. Immediately upon arrival at the evaluation facility, the peace officer shall be interviewed by the admitting physician or [his] the admitting physician's designee; or

                (4) a licensed [physician or a certified psychologist] practitioner has certified that the person, as a result of a mental [disorder] disability, presents a likelihood of serious harm to himself or herself or to others and that immediate detention is necessary to prevent such harm. [Such] The certification shall constitute authority to transport the person.

          B. An emergency evaluation under this section shall be accomplished upon the request of a peace officer or jail or detention facility administrator or [his] that person's designee or upon the certification of a licensed [physician or certified psychologist] practitioner as described in Subsection C of this section. 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 client be seen by a [certified] licensed psychologist or psychiatrist prior to transport to an evaluation facility; and

                (2) a peace officer transport the person to an evaluation facility.

          C. An evaluation facility may accept a person for an emergency-based admission [any person] when a licensed [physician or certified psychologist] practitioner certifies that [such] the person, as a result of a mental [disorder] disability, presents a likelihood of serious harm to himself or herself or to others and that immediate detention is necessary to prevent such harm. [Such] A licensed practitioner's certification shall constitute authority to transport the person.

          D. [Any] A person detained under this section shall, whenever possible, be taken immediately to an evaluation facility. Detention facilities shall be used as temporary shelter for such persons only in cases of extreme emergency for protective custody, and no person taken into custody under the provisions of the code shall remain in a detention facility longer than necessary and in no case longer than twenty-four hours. If use of a detention facility is necessary, the proposed client shall:

                (1) [shall] not be held in a cell with prisoners;

                (2) [shall] not be identified on records used to record custody of prisoners;

                (3) [shall] be provided adequate protection from possible suicide attempts; and

                (4) [shall] be treated with the respect and dignity due every citizen who is neither accused nor convicted of a crime.

          E. The admitting physician or [certified] licensed psychologist shall evaluate whether reasonable grounds exist to detain the proposed client for evaluation and treatment, and, if [such] reasonable grounds are found, the proposed client shall be detained. If the admitting physician or [certified] licensed psychologist determines that reasonable grounds do not exist to detain the proposed client for evaluation and treatment, the proposed client shall not be detained.

          F. Upon arrival at an evaluation facility, the proposed client 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, [his] the right to a hearing within seven days, [his] the right to counsel and [his] the right to communicate with an attorney and an independent mental health professional of [his] the proposed client's own choosing and shall have the right to receive necessary and appropriate treatment.

          G. A peace officer who transports [any] a proposed client to an evaluation facility under the provisions of this section shall not require a court order to be reimbursed by the referring county."

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