HB0588

HOUSE BILL 588

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

INTRODUCED BY

Rick Miera

AN ACT

RELATING TO MENTAL HEALTH DISORDERS; AMENDING THE MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES CODE TO PROVIDE FOR COMMUNITY ENGAGEMENT TEAMS TO ASSIST CLIENTS UNLIKELY TO LIVE SAFELY IN THE COMMUNITY AND WHO ARE NOT CAPABLE OF MAKING TREATMENT DECISIONS; MAKING THE BEHAVIORAL HEALTH SERVICES DIVISION OF THE HUMAN SERVICES DEPARTMENT RESPONSIBLE FOR OVERSIGHT OF COMMUNITY ENGAGEMENT TEAMS; ENACTING SUBSTANTIVE AND PROCEDURAL REQUIREMENTS FOR PROCEEDINGS SEEKING AN ORDER TO DETERMINE THE CAPACITY OF A CLIENT UNLIKELY TO LIVE SAFELY IN THE COMMUNITY; ENACTING SUBSTANTIVE AND PROCEDURAL REQUIREMENTS FOR PROCEEDINGS SEEKING APPOINTMENT OF A TREATMENT GUARDIAN FOR A CLIENT WHO IS UNLIKELY TO LIVE SAFELY IN THE COMMUNITY AND WHO IS NOT CAPABLE OF MAKING TREATMENT DECISIONS; 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. "capacity" means an individual's ability to understand and appreciate the nature and consequences of proposed mental health treatment, including significant benefits, risks and alternatives to the proposed mental health treatment, and to make and communicate an informed mental health treatment decision;

C. "case manager" means a person with specific skills, training and knowledge who manages and coordinates mental health resources and services;

[B.] D. "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 or any person who may be in need of mental health services;

E. "client living in the community" means a client living outside of an institution but not in a residential treatment or habilitation program;

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

G. "community engagement team" means a group created by any government or private funding stream to assist in the engagement of individuals who have a mental disorder, who lack capacity to make treatment decisions and who, without treatment, are unlikely to live safely in the community without support;

[D.] H. "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.] I. "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.] J. "court" means a district court of New Mexico;

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

[H.] L. "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.] M. "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.] N. "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.] O. "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.] P. "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;

Q. "institution" means a jail, a detention center, a prison or other correctional facility or a hospital and does not include a residential treatment or habilitation program;

R. "licensed independent mental health professional" means a physician, psychologist, independent social worker, marriage and family therapist, certified nurse practitioner with a specialty in mental health, clinical nurse specialist with a specialty in mental health, professional art therapist or professional clinical mental health counselor;

[M.] S. "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.] T. "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.] U. "mental [disability] disorder or illness" 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.] V. "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] disorder or illness or a developmental disability;

[Q.] W. "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.] X. "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;

Y. "recommended course of treatment" means an appropriate level of care based upon a client's presenting problem;

[S.] Z. "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.] AA. "treatment" means any effort to accomplish a significant change in the mental or emotional condition or behavior of the client; and

BB. "unlikely to live safely in the community" means that it is probable that, if left untreated, a client will suffer mental distress and experience deterioration of the ability to function independently and consistently maintain the client's health, safety or welfare without support and mental health services, as evidenced by current behavior showing an inability to refrain from behavior that threatens or endangers the client or others."

SECTION 2. A new section of the Mental Health and Developmental Disabilities Code is enacted to read:

"[NEW MATERIAL] COMMUNITY ENGAGEMENT TEAM--OVERSIGHT BY THE DIVISION.--

A. A community engagement team shall work with clients with mental health disorders and shall not work with clients whose sole diagnosis is a developmental disability, mental retardation or brain injuries.

B. A community engagement team shall have at least one member who is a licensed independent mental health professional and may include members who are case managers, community support workers or core service workers acting under the supervision of a licensed independent mental health professional.

C. In the absence of good cause given to the division, a community engagement team shall have at least one certified peer specialist who lives with a mental illness as a member of the team.

D. A community engagement team may act through one or more of its members authorized to act on its behalf.

E. A licensed independent mental health professional who is a member of a community engagement team may assess and determine capacity of clients that a court or special master has found eligible for community engagement team services.

F. A community engagement team shall strive to provide culturally appropriate services to the clients it serves.

G. The division may authorize the formation of community engagement teams to work with clients with mental health disorders in specified geographic service areas.

H. The division shall:

(1) be responsible for oversight of community engagement teams and for ensuring that community engagement team members practicing under licensure or certification are properly credentialed and working within their respective scopes of practice;

(2) in coordination with the administrative office of the courts, develop a form:

(a) application for community engagement team services;

(b) order to grant or deny an application for community engagement team services;

(d) order to grant or deny a petition for an order to evaluate the capacity of a client;

(e) petition for an order appointing a treatment guardian; and

(f) order to grant or deny a petition for an order appointing a treatment guardian;

(3) develop guidelines for reimbursement of community engagement team services;

(4) report annually to the behavioral health services subcommittee of the legislative health and human services committee on the community engagement teams operating under the supervision of the division throughout the state; and

(5) promulgate rules necessary or appropriate to implement the provisions of this section."

SECTION 3. A new section of the Mental Health and Developmental Disabilities Code is enacted to read:

"[NEW MATERIAL] ACCESS TO TREATMENT THROUGH A COMMUNITY ENGAGEMENT TEAM--ELIGIBILITY FOR COMMUNITY ENGAGEMENT TEAM SERVICES.--

A. An application for community engagement team services may be filed by any interested person who believes that a client living or found in the community:

(1) is eligible for and in need of mental health services;

(2) lacks capacity; and

(3) is unlikely to be able to live safely in the community but does not require immediate inpatient or emergency care pursuant to Section 43-1-10 or 43-1-11 NMSA 1978.

B. An application for community engagement team services shall be filed in the district court having jurisdiction over the person of the client or, pursuant to Rule 1-053 of the Rules of Civil Procedure for the District Courts, may be heard by a special master specifically appointed by the court to hear such applications pro bono.

C. A district court or special master shall evaluate the application within forty-eight hours of filing to determine the client's eligibility for community engagement team services.

D. Eligibility for community engagement team services shall be based upon a good faith determination by a district court or special master that the client who is the subject of the application for services:

(1) has a mental disorder;

(2) lacks decisional capacity or the client's decisional capacity is unknown; and

(3) is unlikely to be able to live safely in the community but does not require immediate inpatient or emergency care pursuant to Section 43-1-10 or 43-1-11 NMSA 1978.

E. If a district court or special master determines that the client is not eligible for community engagement team services, the district court or special master shall promptly notify the applicant of its decision in writing on a form prescribed by the division.

F. After a district court or special master grants an application for community engagement team services, the community engagement team:

(1) shall make reasonable efforts to engage and assess the client's capacity or, if such efforts are unsuccessful, petition a court to order an evaluation of the client's capacity;

(2) shall assist the client to access and receive appropriate services and support that enable the client to continue to live in the community, including resources for housing, food, transportation, mental health or other health treatment; and

(3) may assist the client in seeking the appointment of a treatment guardian.

G. Nothing in this section shall:

(1) prevent a mental health or developmental disabilities professional or other interested person from petitioning a court for the appointment of a treatment guardian without the involvement of a community engagement team; or

(2) require the involvement of a community engagement team prior to:

(a) initiating necessary emergency care pursuant to Section 43-1-10 NMSA 1978;

(b) seeking a civil commitment pursuant to Section 43-1-11 NMSA 1978; or

(c) seeking the appointment of a treatment guardian for a client in the community who is not eligible for, or in need of, community engagement team services."

SECTION 4. A new section of the Mental Health and Developmental Disabilities Code is enacted to read:

"[NEW MATERIAL] PROCEDURE FOR COMMUNITY ENGAGEMENT TEAM TO PETITION FOR AN ORDER TO EVALUATE CLIENT'S CAPACITY.--A petition for an order to evaluate the capacity of a client who has not been assessed by the community engagement team shall include:

A. a sworn affidavit by a member of the community engagement team stating that, based upon the affiant's reasonable belief after consideration of available information:

(1) the client is unlikely to live safely in the community;

(2) the client is in need of outpatient mental health services; and

(3) the client's capacity is unknown;

B. a detailed description of the efforts made by the community engagement team to engage and assess the client;

C. a copy of the application for community engagement team services and the order granting the application;

D. contact information for the person most knowledgeable about the client's interaction with the community engagement team;

E. the time and place where the client may be found for service of process and notice of hearing, if known; and

F. the name and contact information of the client's guardian, if any, or other suitable person upon whom service of process may be made pursuant to Subsection I of Rule 1-004 of the Rules of Civil Procedure for the District Courts."

SECTION 5. A new section of the Mental Health and Developmental Disabilities Code is enacted to read:

"[NEW MATERIAL] APPOINTMENT OF AN ATTORNEY TO REPRESENT A CLIENT--NOTICE TO A CLIENT AND THE CLIENT'S ATTORNEY--BASIS FOR AN ORDER FOR EVALUATION OF CAPACITY--CONTENTS OF ORDER.--

A. Upon petition by a community engagement team seeking an order to evaluate the capacity of a client who has not been assessed by the community engagement team, the court shall:

(1) appoint an attorney to represent the client; and

(2) serve a copy of the petition and notice of hearing on the client and the client's attorney.

B. Service of the petition and notice of hearing upon the client may be made by:

(1) a member of the community engagement team;

(2) a member of the community engagement team who, upon request, shall be accompanied by a peace officer; or

(3) the sheriff's department.

C. The court shall consider the petition, the application for community engagement services and all other evidence in support of a petition seeking an order for evaluation of a client's capacity and may order an evaluation of the client's capacity if the court finds by clear and convincing evidence that:

(1) the client is unlikely to live safely in the community;

(2) the client is in need of outpatient mental health services; and

(3) the client's capacity is unknown.

D. Before ruling on a petition for an order to evaluate capacity, the court may require the affiant of the sworn statement required in Subsection A of Section 4 of this 2013 act to appear personally and may examine the affiant under oath.

E. The order granting the petition requesting an evaluation of the capacity of a client:

(1) shall set forth specific findings upon which the order is based; and

(2) may, upon the recommendation of the community engagement team, order:

(a) a peace officer to accompany a community engagement team member to assess the client at the client's residence or where the client can be found;

(b) a peace officer to take the client into custody and transport the client to an evaluation facility; and

(c) an evaluation facility to conduct an evaluation of the client's capacity and, upon a finding that the client lacks capacity, to recommend a course of treatment and to provide a copy of the evaluation and recommended course of treatment, if any, to both the court and the community engagement team within twenty-four hours after the evaluation.

F. Under no circumstances shall an order for evaluation of capacity require or allow a client to be transported to, or detained in, a jail.

G. A hearing on a petition seeking an order to evaluate capacity for a client living in the community shall be held within ten days of service of the petition and notice of hearing.

H. If the client fails to appear for the hearing after notice of hearing has been served pursuant to this section, the court may consider the sworn testimony of witnesses and other relevant evidence in making its decision to order an evaluation of capacity.

I. Within ten days of receiving notice of the court's decision ordering a capacity evaluation, provided the client did not attend the hearing on the petition or waive the right to appear after consultation with an attorney, the client has the right to move for reconsideration of the court's order on the basis of new evidence.

J. If the court grants the client's request for hearing on the client's motion for reconsideration, the motion shall be heard within ten days after the entry of the order setting the date for the hearing on the motion.

K. The clerk of the court shall serve a copy of the order setting hearing on the motion for reconsideration on:

(1) the client;

(2) legal counsel for the client; and

(3) all parties, other than the client, to the proceeding that resulted in the order to evaluate capacity." SECTION 6. A new section of the Mental Health and Developmental Disabilities Code is enacted to read:

"[NEW MATERIAL] PROCEDURE FOR A COMMUNITY ENGAGEMENT TEAM TO PETITION FOR AN ORDER APPOINTING A TREATMENT GUARDIAN.--

A. A community engagement team may petition for an order appointing a treatment guardian:

(1) if the community engagement team has assessed a client and made a determination that the client lacks capacity; or

(2) based upon a determination that a client lacks capacity made by an evaluation facility as a result of a petition by the community engagement team for an order to evaluate the client's capacity.

B. A petition seeking the appointment of a treatment guardian regarding a client that the community engagement team has assessed as lacking capacity shall include:

(1) a sworn affidavit by a member of the community engagement team stating that, based upon the affiant's reasonable belief after assessment of the client and consideration of available information:

(a) the client is unlikely to live safely in the community;

(b) the client is in need of outpatient mental health services; and

(2) the facts specifically describing the assessment made of the client upon which the community engagement team's determination that the client lacks capacity is based;

(3) a copy of the application for community engagement services and order granting the application;

(4) a recommended course of treatment with the following information:

(a) the name and address of the recommended treatment provider and hours of operation;

(b) contact information for the person most knowledgeable about the client's interaction with the community engagement team; and

(5) the name and contact information of the client's guardian, if any, or other suitable person upon whom service of process may be made pursuant to Subsection I of Rule 1-004 of the Rules of Civil Procedure for the District Courts.

C. A petition seeking the appointment of a treatment guardian following a determination that a client lacks capacity made by an evaluation facility as a result of a petition filed by the community engagement team for an order to evaluate the client's capacity shall include:

(1) a sworn affidavit by a member of the community engagement team stating that, based upon the affiant's reasonable belief after assessment of the client and after consideration of available information:

(a) the client is unlikely to live safely in the community;

(b) the client is in need of outpatient mental health services; and

(2) a copy of the report of the evaluation facility and of the evaluation facility's recommended course of treatment, if any, made pursuant to court order as a result of a petition by the community engagement team for an order to evaluate the client's capacity, stating that the client lacks capacity;

(3) a copy of the application for community engagement services and the order granting the application;

(4) unless already provided by the evaluation facility, a recommended course of treatment with the following information:

(a) the name and address of the recommended treatment provider and hours of operation; and

(b) contact information for the person most knowledgeable about the client's interaction with the community engagement team;

(5) the time and place where the client may be found for service of process and notice of hearing, if known; and

(6) the name and contact information of the client's guardian, if any, or other suitable person upon whom service of process may be made pursuant to Subsection I of Rule 1-004 of the Rules of Civil Procedure for the District Courts."

SECTION 7. A new section of the Mental Health and Developmental Disabilities Code is enacted to read:

"[NEW MATERIAL] APPOINTMENT OF AN ATTORNEY TO REPRESENT A CLIENT--NOTICE TO A CLIENT AND THE CLIENT'S ATTORNEY--BASIS FOR AN ORDER APPOINTING TREATMENT GUARDIAN--CONTENTS OF ORDER.--

A. Upon petition by a community engagement team seeking the appointment of a treatment guardian for a client who lacks capacity, the court shall:

(1) appoint an attorney to represent the client; and

(2) serve a copy of the petition and notice of hearing on the client and the client's attorney.

B. Service of the petition and notice of hearing upon the client may be made by:

(1) a member of the community engagement team;

(2) a member of the community engagement team who, upon request, shall be accompanied by a peace officer; or

(3) the sheriff's department.

C. The court shall consider the petition, the application for community engagement services and all other evidence in support of a petition seeking the appointment of a treatment guardian, and if the court finds by clear and convincing evidence that the client is not capable of making the client's own treatment decisions, the court may order the appointment of a treatment guardian.

D. Before ruling on a petition for an order to appoint a treatment guardian, the court may require the affiant of the sworn statement required in Paragraph (1) of Subsection B of Section 6 of this 2013 act to appear personally and may examine the affiant under oath.

E. The order granting or denying a petition for an order appointing a treatment guardian shall set forth specific findings upon which the order is based.

F. A hearing to appoint a treatment guardian for a client living in the community shall be held within:

(1) ten days of service of the petition if no capacity evaluation was ordered; or

(2) twenty days of service of the petition if an order for a capacity evaluation was granted.

G. If the client fails to appear for the hearing to appoint a treatment guardian after notice of hearing has been served pursuant to this section, the court may consider the sworn testimony of witnesses and other relevant evidence in making its decision to appoint a treatment guardian.

H. Within ten days of receiving notice of the appointment of a treatment guardian, provided the client did not attend the hearing on the petition or waive the right to appear after consultation with an attorney, the client has the right to move for reconsideration of the court's appointment of a treatment guardian on the basis of new evidence.

I. If the court grants the client's request for hearing on the client's motion for reconsideration, the motion shall be heard within ten days after the entry of the order setting the date for the hearing on the motion.

J. The clerk of court shall serve a copy of the order setting hearing on the motion for reconsideration on:

(1) the client;

(2) legal counsel for the client;

(3) all parties, other than the client, to the proceeding that resulted in the appointment of a treatment guardian; and

(4) the treatment guardian."

SECTION 8. A new section of the Mental Health and Developmental Disabilities Code is enacted to read:

"[NEW MATERIAL] IMMUNITY FROM LIABILITY.--Persons providing community engagement team services, acting on behalf of a community engagement team or serving as members of a community engagement team shall not be liable in any civil or criminal action if they are acting in good faith and without malicious purpose."

SECTION 9. A new section of the Mental Health and Developmental Disabilities Code is enacted to read:

"[NEW MATERIAL] CONFIDENTIALITY.--Community engagement teams established pursuant to the Mental Health and Developmental Disabilities Code and rules promulgated by the division shall be considered a provider of services consistent with federal and state confidentiality laws that allow the exchange of health information for treatment purposes."

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