COMMITMENT PROCEDURE CHANGES & DEFINITIONS

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AN ACT
RELATING TO COMMITMENT PROCEDURES; PROVIDING A DEFINITION FOR
"SERIOUS HARM TO SELF" AND "SERIOUS HARM TO OTHERS" IN THE
MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES CODE AND THE
ASSISTED OUTPATIENT TREATMENT ACT.
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) 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 a 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
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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 close 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 electroconvulsive treatment and
insulin coma treatment;
F. "court" means a district court of New Mexico;
G. "crisis triage center" means a health facility
that:
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(1) is licensed by the health care
authority; and
(2) provides stabilization of behavioral
health crises and may include residential and nonresidential
stabilization;
H. "department" or "division" means the behavioral
health services division of the health care authority;
I. "developmental or intellectual disability"
means a severe chronic disability attributable to
significantly subaverage general intellectual functioning
existing concurrently with deficits in adaptive behavior,
cerebral palsy, autism or neurological dysfunction that
requires similar treatment or habilitation;
J. "evaluation facility" means a community mental
health or developmental disability program, a crisis triage
center or a medical facility that has psychiatric or
developmental or intellectual disability services available,
including the New Mexico behavioral health institute at
Las Vegas, or, if none of those is reasonably available or
appropriate, the office of a physician or a certified
psychologist that is capable of performing a mental status
examination adequate to determine the need for involuntary
treatment;
K. "experimental treatment" means any mental
health or developmental disabilities treatment that presents
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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;
L. "habilitation" means the process by which
professional persons and their staff assist a client with a
developmental or an intellectual 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. "serious harm to others" means that within the
recent past, the person has inflicted or attempted to inflict
serious bodily harm on another or has acted in such a way as
to create a substantial risk of serious bodily harm to
another and it is more likely than not that the conduct will
be repeated in the near future;
N. "serious harm to self" means that:
(1) it is more likely than not that in the
near future, the person will attempt to cause self-inflicted
death or will intentionally cause serious bodily harm to the
person's self; or
(2) the person's recent behavior:
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(a) demonstrates that, as a result of a
mental disorder, the person lacks the decisional capacity to
satisfy the person's need for nourishment, personal or
medical care, shelter or self-protection and safety and that
it is more likely than not that the lack of decisional
capacity will result in death, serious bodily injury or
serious physical or mental debilitation in the near future if
treatment is not ordered; and
(b) makes it more likely than not that
the person will suffer serious physical debilitation in the
near future unless adequate treatment is provided pursuant to
the Mental Health and Developmental Disabilities Code;
O. "mental disorder" 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 or intellectual
disability;
P. "mental health or developmental or intellectual
disabilities professional" means a physician or other
professional who by training or experience is qualified to
work with persons with a mental disorder or a developmental
or intellectual 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
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granted admitting privileges at a hospital licensed by the
health care authority, if such privileges are required;
R. "protected health information" means
individually identifiable health information transmitted by
or maintained in an electronic form or any other form or
media that relates to the:
(1) past, present or future physical or
mental health or condition of a person;
(2) provision of health care to a person; or
(3) payment for the provision of health care
to a person;
S. "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
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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;
T. "qualified mental health professional licensed
for independent practice" means an independent social worker,
a licensed professional clinical mental health counselor, a
marriage and family therapist, a certified nurse
practitioner, a clinical nurse specialist with a specialty in
mental health or a licensed art therapist, all of whom by
training and experience are qualified to work with persons
with a mental disorder;
U. "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
V. "treatment" means any effort to accomplish a
significant change in the mental or emotional condition or
behavior of the client."
SECTION 2. Section 43-1B-2 NMSA 1978 (being Laws 2016,
Chapter 84, Section 2, as amended) is amended to read:
"43-1B-2. DEFINITIONS.--As used in the Assisted
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Outpatient Treatment Act:
A. "advance directive for mental health treatment"
means an individual instruction or power of attorney for
mental health treatment made pursuant to the Mental Health
Care Treatment Decisions Act;
B. "agent" means an individual designated in a
power of attorney for health care to make a mental health
care decision for the individual granting the power;
C. "assertive community treatment" means a team
treatment approach designed to provide comprehensive
community-based psychiatric treatment, rehabilitation and
support to persons with serious and persistent mental
disorders;
D. "assisted outpatient treatment" means
categories of outpatient services ordered by a district
court, including case management services, comprehensive
community support services, intensive outpatient services,
care coordination or assertive community treatment team
services, prescribed to treat a patient's mental disorder and
to assist a patient in living and functioning in the
community or to attempt to prevent a relapse or deterioration
that may reasonably be predicted to result in harm to the
patient or another or the need for hospitalization. Assisted
outpatient treatment may include:
(1) medication;
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(2) periodic blood tests or urinalysis to
determine compliance with prescribed medications;
(3) individual or group therapy;
(4) day or partial-day programming
activities;
(5) educational and vocational training or
activities;
(6) alcohol and substance abuse treatment
and counseling;
(7) periodic blood tests or urinalysis for
the presence of alcohol or illegal drugs for a patient with a
history of alcohol or substance abuse;
(8) supervision of living arrangements; and
(9) any other services prescribed to treat
the patient's mental disorder and to assist the patient in
living and functioning in the community, or to attempt to
prevent a deterioration of the patient's mental or physical
condition;
E. "covered entity" means a health plan, a health
care clearinghouse or a health care provider that transmits
any health information in electronic form;
F. "guardian" means a judicially appointed
guardian having authority to make mental health care
decisions for an individual;
G. "least restrictive appropriate alternative"
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means treatment and conditions that:
(1) are no more harsh, hazardous or
intrusive than necessary to achieve acceptable treatment
objectives; and
(2) do not restrict physical movement or
require residential care, except as reasonably necessary for
the administration of treatment or the protection of the
patient;
H. "serious harm to others" means that within the
recent past, the person has inflicted or attempted to inflict
serious bodily harm on another or has acted in such a way as
to create a substantial risk of serious bodily harm to
another and it is more likely than not that the conduct will
be repeated in the near future;
I. "serious harm to self" means that:
(1) it is more likely than not that in the
near future, the person will attempt to cause self-inflicted
death or will intentionally cause serious bodily harm to the
person's self; or
(2) the person's recent behavior:
(a) demonstrates that, as a result of a
mental disorder, the person lacks the decisional capacity to
satisfy the person's need for nourishment, personal or
medical care, shelter or self-protection and safety and that
it is more likely than not that the lack of decisional
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capacity will result in death, serious bodily injury or
serious physical or mental debilitation in the near future if
treatment is not ordered; and
(b) makes it more likely than not that
the person will suffer serious physical debilitation in the
near future unless adequate treatment is provided pursuant to
the Assisted Outpatient Treatment Act;
J. "mandated service" means a service specified in
a court order requiring assisted outpatient treatment;
K. "participating municipality or county" means a
municipality or county that has entered into a memorandum of
understanding with its respective district court with respect
to the funding of such district court's administrative
expenses, including legal fees, for proceedings pursuant to
the Assisted Outpatient Treatment Act;
L. "patient" means a person receiving assisted
outpatient treatment pursuant to a court order;
M. "power of attorney for health care" means the
designation of an agent to make health care decisions for the
individual granting the power, made while the individual has
capacity;
N. "provider" means an individual or organization
licensed, certified or otherwise authorized or permitted by
law to provide mental or physical health diagnosis or
treatment in the ordinary course of business or practice of a
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profession;
O. "qualified professional" means a physician,
licensed psychologist, prescribing psychologist, certified
nurse practitioner or clinical nurse specialist with a
specialty in mental health, or a physician assistant with a
specialty in mental health;
P. "qualified protective order" means, with
respect to protected health information, an order of a
district court or stipulation of parties to a proceeding
under the Assisted Outpatient Treatment Act;
Q. "respondent" means a person who is the subject
of a petition or order for assisted outpatient treatment;
R. "surrogate decision-maker" means:
(1) an agent designated by the respondent;
(2) a guardian; or
(3) a treatment guardian; and
S. "treatment guardian" means a person appointed
pursuant to Section 43-1-15 NMSA 1978 to make mental health
treatment decisions for a person who has been found by clear
and convincing evidence to be incapable of making the person's
own mental health treatment decisions."