MENTAL HEALTH SELF ADVOCACY
If you are advocating for yourself and have mental health concerns, it is important to know both your federal and state laws under the Mental Health Code. In New Mexico, for example, there is a treatment guardianship for forced or involuntary medications and treatment. Always be sure your due process has not been violated.
PAIMI or Protection and Advocacy for Individuals with Mental Illness.
What is PAIMI?
The PAIMI Act (Protection and Advocacy for Individuals with Mental Illness) is a federal mandate that gives Disability Rights New Mexico (DRNM) their authority to investigate complaints of abuse, neglect, due process and rights violations in public and private facilities that provide overnight mental health treatment, including but not limited to the following:
- Psychiatric hospitals
- Residential treatment facilities
- Juvenile detention
- Community housing
- Jails and prisons
- Board and care homes
- Treatment foster care
- Group homes
Who Does PAIMI Serve?
Persons with significant mental illness or emotional impairment and:
- Who are an inpatient or resident in a public or private facility rendering mental health care or treatment;
- Who are in the process of being admitted to a public or private facility rendering mental health care or treatment, including persons being transported to such a facility;
- Who are involuntarily confined in a detention facility, jail or prison;
- Who have been discharged within 90-days from a facility that providedmental health care or treatment;
- Who are in a federal facility rendering mental health care or treatment.
What Does PAIMI Authorize DRNM To Do?
- Advocate to address issues related to abuse, neglect or other violations of rights.
- Establish ongoing presence in residential mental health care or treatment facilities, and relevant hospital units.
- Interact regularly with individuals who are current or potential recipients of DRNM services.
- Interact regularly with staff providing care or treatment.
- Communicate with family members, social and community service workersand others involved in providing care or treatment.
- Provide training, information and referral.
- Representation in civil commitment proceedings to appeal or otherwisechallenge acts or omissions which have subjected an individual to abuseor neglect or otherwise violated their rights.
- Systems Advocacy.Monitor compliance of rights and safety of residents in mental healthtreatment facilities.
How Can PAIMI Help You?
Let DRNM know if you, or someone you know, have been prevented from exercising their rights, obtaining appropriate mental health treatment, services or benefits.
Mental Health Legal Rights of Adults In New Mexico
What is a residential treatment program?
Where an individual resides on the premises of a mental health facility, hospital, clinic, institution or supervisory residence or nursing home for diagnosis, evaluation, care or treatment to change mental or emotional condition or behavior of individual.
What are some of the rights people have in residential treatment programs?
- Know your rights.
- Participate in legal process any time you believe your rights have been taken away or limited illegally or withoutgood cause.
- Speak to attorney at any time and be represented by an attorney at all court proceedings.
- See visitors of your choice on daily basis during visiting hours.
- Meet in private at any “reasonable” time with your attorney, clergy, physician, social worker or a psychologist.
- Make and receive confidential telephone calls including “reasonable” use of long distance.
- Send and receive sealed and uncensored mail and have access to postage stamps and writing material.
- Participate in religious worship; freedom from pressure not to do so or accept religious beliefs.
- Clean and comfortable bed and secure storage for personal belongings.
- Reasonable privacy in sleeping and personal hygiene practices.
- Daily physical and outdoor exercise including access to recreational areas and equipment.
- Appetizing, nourishing, well-balanced and varied diet.
- Prompt and adequate medical attention for physical ailment.
- Clean, safe and comfortable physical and psychological environment.
- Freedom from unnecessary or excessive medication.
- Involvement in preparation of treatment plan to meet your needs.
- Free from seclusion or restraint, except when necessary to prevent injury to yourself or others, or if behaviorcauses substantial interference with treatment unit.
- All information in medical records is confidential, including fact that you are receiving or have ever receivedmental health services.
- Refuse or consent to treatment, including medication. You must understand all information given to you aboutthe proposed treatment. Your consent must be voluntary and not obtained through force or threatening you in any way. You have the right to withdraw your consent at any time. If licensed physician believes that giving you psychotropic medication is necessary to protect you from serious harm, it can be given to you on emergency basis without your consent. Physician must write report in your medical file explaining why emergency medications had to be administered without your consent and was the least drastic means of protecting you from serious harm.
- Access your medical records and make copies. You may add information to your records to clarify or correct anything you feel is inaccurate. Your request to read your records may be denied because your physician or other mental health professional believes, and has noted in your records, that reading records would be harmful to you. If denied access to your records, you have the right to petition court for an order allowing you to read entire record.
Can any of these rights be restricted?
- Some of these rights can be denied or restricted by your clinician for “good cause” or for safety or therapeutic reasons.
- If rights are denied or restricted, your clinician must document in your medical record the reason and how long rights will be denied. The right must be restored when the reason for denial no longer exists.
What is the difference between Voluntary versus Involuntary?
- Involuntary means that a person has been committed by the court or brought to the program during an emergency and unwilling or unable to agree to admission.
- Voluntary means a person has agreed to the admission for up to 30 days. As a voluntary patient you can request discharge at any time by notifying the director, clinician or other staff. It is a good idea to make your request for discharge in writing and keep a copy for yourself, although not necessary. The program may refuse your request because you need and probably will benefit from continued treatment. The program must file a petition for a Commitment Hearing to hold you against your will.What is a Commitment Hearing?
- The court will decide if you will be discharged or make an order based on “clear and convincing evidence” to involuntarily continue your admission.
- Hearing must be held within 5 days of your request to be released if you are voluntary patient. For an involuntary patient, the hearing will be held within 7 days of admission. You will be represented by an attorney to present evidence and cross-examine witnesses.
What is a Treatment Guardian?
- Any interested person can petition court for appointment of treatment guardian when a person is believed to be incapable of making own mental health treatment decisions. A hearing must be held within 3 court days of filed petition.
- Court may appoint treatment guardian if court finds by “clean and convincing evidence” that person is not capable of making own treatment decision.
- Appointment is for a limited time of up to one year.
- Treatment guardian must consult with individual regarding opinions and decisions about any proposedtreatments including medications.
- May appeal decision of treatment guardian by filing petition with court within 3 calendar days of receiving noticeof treatment guardian’s decision.
Who do I contact if my rights have been improperly denied?
If a person thinks that any rights in brochure have been improperly denied or restricted, call Disability Rights New Mexico and ask to speak with a Mental Health Advocate.
This information is a publication of Disability Rights New Mexico. Development and reproduction of this brochure is supported through a grant from the U.S. Department of Health and Human Services (#SMX 359700B), pursuant to the provisions of the PAIMI (Protection and Advocacy for Individuals with Mental Illness) Act.
Permission is granted to reproduce this brochure for training and educational purposes, provided credit is given to Disability Rights New Mexico.
In May of 1986, Congress passes legislation requiring each state to provide protection and advocacy services to persons receiving mental health services in residential facilities. In New Mexico, Disability Rights New Mexico (DRNM) provides these services. DRNM is an independent, non-profit agency that has been providing advocacy services to persons in New Mexico with disabilities since 1979.
Mental health advocates at DRNM investigate complaints regarding incidents of abuse or neglect of persons receiving mental health services in hospitals, community residential programs, nursing homes, boarding homes, jails, prisons, and forensic settings, or within three months of discharge from such a facility. In addition to physical abuse, mental cruelty, or failure to provide a safe and humane environment, complaints regarding inappropriate or
inadequate treatment services can also be reviewed and/or investigated. DRNM can assist with issues such as the right to refuse treatment or the exercise of personal rights within a residential treatment program.
As an advocacy agency, DRNM is committed to protecting the rights of recipients of mental health services an following their wishes whenever reasonable and possible. While it is DRNM’s policy to use informal methods of negotiation and problem solving first, the agency has the authority to take legal action on behalf of clients.
Mental Health Rights In-Patient for Adults (Over 14 in NM)
Advance Directives for Mental Health
Why An Advance Directive?
Why Should I Fill Out A Psychiatric Advance Directive?
(Sometimes the best defense is a good offense) An advance directive spells out what you want done in a time of crisis as a result of your mental illness. It enables you to choose who you want to make mental health treatment decisions for you. It can also let others know your plans for the care of your children, pets, or home. This directive does not “activate” unless your capacity to make mental health treatment decisions becomes impaired. You can also use this document to describe those behaviors which are “indicators” of impaired capacity which you think might activate the advance directive. An advance directive helps you maintain control in a time of mental health crisis and may prevent the crisis from worsening. Here are a number of important reasons why consumers should consider completing advance directives for mental health care:
- Anadvancedirectivehelpsyoumaintainchoiceandcontrolinthetreatmentyou receive, according to your knowledge of what works best for you in managing your mental health care. This includes medication and treatment you do and do not want
- An advancedirectiveincreasesthepossibilitythattherewillbecontinuityofcarein times of crisis, including place, type, and personnel involved in treatment.
- An advance directive may decrease the possibility of involuntary treatment.
- If involuntary treatment does occur, a mental health care directive should have a direct impact on the treatment you do receive, including time in the hospital, the use of medications, place of treatment and treatment plan upon release.
- Preparing a mental health care directive creates an excellent opportunity to develop an effective crisis intervention plan and to discuss it with family, friends, treatment professionals and others before a crisis arises. This includes the opportunity to discuss approaches that are effective and those that hinder rather than help in times of crisis.
- An advance directive allows you to authorize the release of information at a time when your capacity to make authorization is clear. It also enables you to state whom you do and do not want notified at the time of hospitalization.
- An advancedirective,particularlytheappointmentofanagentwhoyoutrust,canbe an effective alternative to the court-appointed guardian.
- An advancedirectivecanincludehowyouwantyourfamily,pets,andfinancescared for while you are receiving treatment.
- Theimplementationofanadvancedirectivecanhelprestoreself-confidenceandallay fears and panic in a time of crisis. This helps in terms of stabilization and recovery.
- New Mexico does not require you to fill out a specific form. However, it does require three things. A. You must sign the advance directive. B. You must have it witnessed and if you wish, have it notarized. C. If you appoint an agent, have the agent sign that he or she is accepting the appointment. That may be done on a separate piece of paper, but it may be helpful to have the signed acceptance as part of your advance directive.
What Does the Law Require an Advance Direction to Have?
New Mexico law does not require that anyone fill out a specific form. However, it does require three things.
- You must sign the psychiatric advance directive (PAD).
- You must have it witnessed and if you wish, have it notarized.
- If you appointanagent,theagentmustsignthatheor she is accepting the appointment. That may be done on a separate piece of paper, but may be helpful to have the signed acceptance as part of your psychiatric advance directive (PAD).
Mental Health Rights for Minors in New Mexico
Treatment Guardianship in New Mexico
What is a Treatment Guardian?
A person appointed by a court to make mental health treatment decisions on behalf of an individual who the court finds by “clear and convincing” evidence is not capable of making their own treatment decisions or informed consent.
What is Informed Consent?
A physician has a duty to provide information about recommended treatment. A person who uses this information and, after considering the risks and benefits of proposed treatment, decides to accept or reject treatment is practicing informed consent or making an informed decision. A person is assumed to be capable of giving or withholding informed consent. If it is believed that a person is not capable of informed consent, a petition for a treatment guardian may be filed.
What is the Procedure for Petitioning for a Treatment Guardian?
A “Petition for Appointment of Treatment Guardian” must be filed with a District court. A copy of the petition is served to the individual who is subject of the petition and their attorney. A hearing must be held within 3 court days. At the hearing, the individual has the right to be present, be represented by an attorney, present and cross –examine witnesses. The court will determine by “clear and convincing” evidence whether the individual is capable of informed consent or not.
Who can petition the court for a treatment guardian?
Any mental health professional, Developmental Disabilities professional, physician or any interested person who believes the individual is incapable of informed consent can petition a court for the appointment of a treatment guardian.
How long can a treatment guardian be appointed?
Appointment by a court can be no longer than 1 year. If at the end of the treatment guardian appointment; the treatment guardian believes the individual is still incapable of making their own mental health treatment decisions, the treatment guardian may petition the court for a reappointment or appointment of new a treatment guardian. The individual will be represented by an attorney at the hearing and has the right to be present and present evidence supporting individual’s ability to make their own mental health treatment decisions. If the court finds at the time of the hearing that the individual is incapable of informed consent, the treatment guardian appointment may be extended or a new guardian appointed.
Who can be a treatment guardian?
The court will give priority to a court-appointed guardian then to an agent designed or nominated by the individual when the individual was capable of informed consent. An individual may request who is appointed as their treatment guardian including friends, family members or significant others.
What Does a Treatment Guardian Do?
A treatment guardian makes mental health treatment decisions on behalf of an individual who was found by the court to be incapable of making their own mental health treatment decisions. The treatment guardian must consult with the individual, consider their expressed opinions and consider previous decisions made by the individual in similar circumstances when the individual was capable of informed consent, about any proposed mental health treatment. The treatment guardian shall also consult with mental health providers, the individual’s attorney, interested friends, relatives, other agents or guardians when reasonably practical in making mental health treatment decisions for the individual. The treatment guardian will make decisions about accepting mental health treatment if it appears that the treatment is in the individual’s best interest and is the least drastic means for accomplishing the treatment objective.
What kinds of mental health treatment can a treatment guardian authorize?
A treatment guardian may consent to any mental health treatment including psychotropic medication. The treatment guardian’s power may be limited by the court order appointing the treatment guardian. A treatment guardian does not have the authority to make decisions about any other medical treatment.
Can a treatment guardian admit me to the hospital?
No. A treatment guardian can’t admit an individual into the hospital or agree to extend a “voluntary admission” to a mental health treatment facility.
Can facility administer emergency medications before a treatment guardian is appointed?
Emergency medications can be initiated by a licensed physician if it is necessary to protect an individual from serious harm which would occur while the treatment guardian is being sought. The treating physician must prepare and place in an individual’s medical record a report explaining the nature of the emergency and reason that no treatment less drastic than administration of psychotropic medication without an individual’s consent would protect the individual from serious harm. Upon a sworn application from the treating physician, the court may issue an order permitting the treating physician to continue to administer psychotropic medication until a treatment guardian is appointed if a petition for the appointment of a treatment guardian has been filed with the court. A hearing on the appointment of a treatment guardian is held within 3 court days of the filed petition.
Can a treatment guardian decision be appealed?
Yes. An individual appointed a treatment guardian, physician or other professional must file an appeal with a court within 3 days of receiving notice of the treatment guardian’s decision. The individual will be represented by an attorney at the hearing. The court may overrule the treatment guardian’s decision if the court finds the decision to be against the best interests of the individual.
Can a treatment guardian be used outside of a mental health treatment facility?
Yes. The treatment guardian can be used to make mental health treatment decisions in a community setting. Additionally, the treatment guardian may apply to the court for an “enforcement” order that authorizes the individual to be taken to an evaluation facility if the treatment guardian believes that the individual has been noncompliant with mental health treatment decision(s) made by the treatment guardian. This order may authorize a peace officer to take the individual into custody and transport the individual to an evaluation facility. This order may also authorize the facility to forcibly administer medications.
When can a treatment guardian appointment be terminated?
A petition to remove the treatment guardian can be filed in a court by the individual, treatment provider, family member, individual’s attorney or another person once the individual has regained the ability to make their own mental health treatment decisions. If the court finds the individual capable of making their own mental health treatment decisions, it can terminate the treatment guardian’s appointment and restore power back to the individual to make their own mental health treatment decisions.
Can a treatment guardian be appointed for a child?
If the child is under the age of 14, the legal custodian’s consent is required before mental health treatment including administration of medications. A child 14 years of age or older is presumed to have capacity to consent to mental health treatment including medications without the consent of his or her legal custodians. If a child 14 years of age or older is believed to lack capacity to consent to mental health treatment then the child’s legal custodian may make mental health treatment decisions for the child unless the child objects or challenges the determination that he or she lacks capacity. The challenge will prevail unless a petition for a treatment guardian is filed in a court and the court finds that the child is not capable of making his or her own mental health treatment decision and appoints a treatment guardian. The court will appointment the child’s legal custodian as the child’s treatment guardian unless the legal custodian is not readily available or the court finds that appointing the child’s legal custodian is not in the child’s best interests. The treatment guardian shall consult with the child and consider his or her expressed opinions regarding any proposed mental health treatment.
The hearing on the appointment of a treatment guardian will be held within 3 days of the petition being filed with a court. The child will be presented by an attorney and has the right to be present, to present witnesses and to cross –examine opposing witnesses.
Are treatment guardians legally protected?
The Mental Health Code states that treatment guardians cannot be held liable in civil or criminal suits as long as they are acting in good faith.
This information is a publication of Disability Rights New Mexico. Development and reproduction of this information is one of many activities supported through a federal grant from the U.S. Department of Health and Human Services (#SMX359700B), pursuant to the provisions of the Protection and Advocacy for Individuals with Mental Illness Act. The views expressed in this brochure are those of Disability Rights New Mexico and do not necessarily reflect the views of the U.S. Department of Health and Human Services.
Permission is granted to reproduce this brochure for training and educational purposes provided credit is given to Disability Rights New Mexico.
Mental Health Code (NM Statute)