This handbook is a publication of Protection and Advocacy System, Inc., 1720 Louisiana Blvd. NE, Albuquerque, NM 87110. Development and reproduction of this handbook is one of many activities supported through a federal grant from the U.S. Department of Health and Human Services (#SMX 359700B), pursuant to the provisions of the Protection and Advocacy for Individuals with Mental Illness Act. The views expressed in this handbook are those of Protection and Advocacy System and do not necessarily reflect the views of the U.S. Department of Health and Human Services.
Permission is granted to reproduce this handbook for training and educational purposes provided credit is given to the Protection and Advocacy System.
LEGAL RIGHTS OF AN
Note: The words and phrases in italic throughout this booklet are defined in the Glossary.
When you receive mental health services on an in-patient or out-patient basis, you have the same rights under the United States Constitution as any other citizen. In additional to your constitutional rights, New Mexico law guarantees the rights described in this booklet. Some of these rights can be limited or taken away, but only when it is believed to be in the interests of effective treatment. Due process of law must be followed before any of your rights can be limited, unless there is a clear emergency.
Throughout this booklet we have attempted to explain what your rights are in New Mexico, which rights can be limited or taken away, and the procedures that must be followed by those who wish to limit or take away a right because they believe it is in your best interests. It is our hope that this information will provide you with the knowledge you need to protect your rights, preserve your dignity, and advocate on your own behalf.
It is important to note that the information contained in this booklet refers to your rights as a voluntary or involuntary patient, but some do not apply to those with criminal charges. While many of these rights also apply to treatment in criminal settings, the procedures outlined here are part of our civil (non-criminal) code.
In May of 1986, Congress passed legislation requiring each state to provide protection and advocacy services to persons receiving mental health services in residential facilities. In New Mexico, these services are provided by the Protection and Advocacy System in Albuquerque. The P & A System 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 P & A investigate complaints regarding incidents of abuse or neglect of persons receiving mental health services in hospitals, community residential programs, nursing homes, boarding homes and 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. P & A staff 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, P & A is committed to protecting the rights of recipients of mental health services, and following their wishes wherever reasonable and possible. While it is P & A’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.
To request assistance or obtain more information about the legal rights of persons with disabilities, you can contact the PROTECTION AND ADVOCACY SYSTEM AT 256-3100 (ALBUQUERQUE) or 1-800-432-4682 (STATEWIDE TOLL-FREE). Protection and Advocacy also has a satellite office in Las Vegas, New Mexico. The number in Las Vegas is 425-5265.
You have the right to know your rights and to participate in the legal process any time you believe your rights have been taken away or limited either illegally or without good cause. You have the right to speak to a lawyer at any time and to be represented by a lawyer at all court proceedings. If you cannot afford a lawyer one will be appointed for you by the court, free of charge. You may also contact the Protection and Advocacy System at 256-3100 (Albuquerque) of 425-5265 (Las Vegas) or 1-800-432-4682 (statewide toll-free) whenever you have a question about your rights.
B. Right to A SAFE AND HUMANE ENVIRONMENT
Whether you are a voluntary or involuntary patient, you have the right to be free from harm, abuse and neglect and to be treated with respect and dignity. In other words, you have the right to a safe and humane environment. This includes:
You have the right to communicate with anyone you choose while an in-patient in any mental health treatment program. This includes:
private conversations with a lawyer, physician, social worker, psychologist, or member of the clergy, of your choosing, at any reasonable time;
the right to see other visitors daily during visiting hours;
reasonable access to writing materials and stamps and a reasonable amount of help in writing, addressing, and mailing letters (Your mail must be sent out unopened. Any mail addressed to you cannot be opened or read by anyone but you);
reasonable access to a telephone in private, to make and receive local calls (In the case of a personal emergency, you have the right to make reasonable long distance calls); and
writing materials, postage, or telephone calls free of charge, if you cannot afford to pay for them.
Your physician can place limitations on your communication rights for good cause related to your therapy. Your right to visit with your lawyer, physician, psychologist, clergy or social worker can never be taken away from you. The reasons for any limitations must be written in your case record. The right to call your attorney cannot be limited at any time.
You have the right to receive prompt and humane treatment for any physical or psychological problems you may have regardless of your ability to pay. The treatment must be the least drastic means available, and the overall goal of your treatment should be to help you function independently. Your treatment rights include:
a complete physical examination when you are admitted to a treatment program (unless you have had one within the last two days) and once every 12 months from then on;
a treatment plan developed within 14 days of admission, designed to meet your special needs;
the right to help design and update your treatment plan which must include the following:
a description of your problems and needs;
a description of the least restrictive environment in which your needs can be met;
treatment goals and how long it might take to meet each goal;
a description of how your treatment plan will help you achieve your goals;
assignment of staff members to help you achieve your goals and what else will do to help you; and
what you have to do or accomplish before you can be sent to a less restrictive environment or be discharged and how long that might take.
treatment or habilitation plans shall also include the following assessments: mental status exam, intellectual function, psychological function, vocational, social, medication and physical assessments.
YOU ALSO HAVE THE RIGHT
Unless you have been found incompetent by a court of law or you have been found incapable of informed consent and have had a treatment guardian appointed, you have the right to refuse or consent to treatment. You have this right even if you have been committed and are an involuntary patient.
You have the right to be fully informed about any suggested treatment or therapy before giving your consent. (This includes the use of medication.) To be fully informed, you must be told orally or in writing:
the problem for which treatment or therapy is proposed;
what the treatment or therapy is and how it works;
the risks and consequences of the treatment or therapy;
the likelihood that the treatment or therapy will be successful;
the possible alternatives; and
the consequences of not receiving the treatment or therapy.
For your consent to be valid, you must be able to understand all the information given to you about the treatment or therapy. Your consent must be voluntary, and not obtained by forcing you or threatening you in any way. You have the right to change your mind and withdraw your consent for any treatment or therapy at any time.
Your informed and written consent is required for the following treatments or therapies:
psychosurgery;
convulsive therapy
experimental treatment; or
behavior modification programs using averse stimuli.
However, if a licensed physician believes that giving you psychotropic medication is necessary to protect you from serious harm, it can be given to you on an emergency basis without your consent. If this is done, the physician must write a report in your case record that explains the emergency and the reason that giving you psychotropic medication without your consent was the least drastic means of protecting you from serious harm.
Psychotropic medication can be given without consent under emergency conditions for only 3 working days. Then you have the right to a court proceeding which will determine if you are legally competent to refuse or consent to treatment. If it is determined by the court that you are not competent to make your own treatment decisions, a treatment guardian will be appointed to make a decision on your behalf.
It is your right to have all information that is shared with staff or written in your case record held in strictest confidence, including the fact that you are receiving or have ever received mental health services. This confidential information cannot be shared with any other individual, facility, or agency without your written permission, except under the following circumstances:
You have the right to read your case record, treatment plan, or any information the facility or agency has about you and to make copies of that information. You may also add information to your records in order to clarify or correct anything you feel is inaccurate. Your corrections and clarifications must be included any time your record is sent to another person, facility, or agency.
Your request to read your records may be denied because your physician or other mental health professional believes, and has noted in your record, that reading them would be harmful to you. If you are denied access to your records, you have the right to petition the court for an order allowing you to read the entire record.
Civil rights are basic rights granted to every citizen in our society. You cannot be denied any of your civil rights just because you are being treated in a mental health treatment program. You are considered to be legally competent to make you own decisions and to manage your own affairs unless you have been found incompetent by a court of law. Your civil rights include:
the right to practice the religion of your choice and to receive a reasonable amount of help in getting to nearby religious services;
the right to not follow or participate in the practice of religion;
the right, as a voluntary patient or client, to discharge yourself from a mental health treatment program at any time. (Sometimes discharging yourself against medical advice can result in a refusal by your insurance company to pay your bill. You should check first with your insurance company.);
the right to vote and to register to vote;
the right to receive, buy, sell, hold or give away your property;
the right to marry, make a will, or enter into any legal contract;
the right to express your opinions;
the right not to be discriminated against in any manner because of your race, color, sex, religion, national origin, age, handicap, degree of disability, or ability to pay.
If you are receiving mental health services as an out-patient from a community mental health center, you have the following rights:
Civil commitment is a court proceeding to determine if it is necessary to send a person involuntarily to a mental health treatment program because he or she is believed to have a mental disorder that makes him or her a danger to self or others, and will benefit from treatment. The court may order that a person believed to be mentally disordered receive a mental health evaluation and treatment in a mental health treatment program.
A person can be held involuntarily for mental health evaluation and treatment for up to 7 days before a civil commitment hearing is held, if it is an emergency. For a person to be held involuntarily on an emergency basis, a licensed physician must determine that:
the person has a mental disorder; and
the person will likely inflict bodily harm to self and others in the near future; and
holding the person involuntarily is necessary to prevent that harm.
A police office may also hold a person on an emergency basis if:
the person could otherwise be arrested; or
the person has just attempted suicide; or
the officer has good reason to believe that the person, because of a mental disorder, will inflict serious bodily harm to self or others, and that holding the person involuntarily is necessary to prevent that harm.
If you are held in a jail by the police because they believe you have a mental disorder, and you have not been charged with a crime, you have the right:
to be taken to an evaluation facility as soon as possible and no later than 24 hours from the time you are taken to jail;
to be separated from other inmates;
to not be identified on records used only to record custody of prisoners;
to be protected from committing suicide; and
to be treated with the respect and dignity that every citizen who is neither accused not convicted of a crime deserves.
If you have been held for emergency mental health examination and treatment, the physician, the State of New Mexico, or the evaluation facility has 5 days to petition the court for a civil commitment hearing if they believe you meet those standards. (You have the right to apply to be a voluntary patient at any time, but your application may be denied.) While at the evaluation facility, you have the right to be told immediately orally or in writing:
the reason you are there;
what will happen if you are committed;
who is asking the court to commit you and why;
that you have the right to a hearing withing7 days;
that you have the right to a lawyer;
that you have the right to be in touch with a lawyer and an independent mental health professional of your choosing; and
that you have the right to receive necessary and appropriate treatment.
When there is no emergency but it is believed that an adult has a mental disorder and is likely to inflict serious bodily harm to self or others, any interested person can request the district attorney to investigate and determine if there is good cause to commit that person for a 30-day period. If the district attorney determines that good cause exists, a civil commitment hearing is requested. The court may then issue a summons to the person believed to be mentally disordered to appear at a hearing no less than 5 days from the date of petition. The person is required to have a mental health evaluation before coming to the hearing. Anyone who does not show up for this civil commitment hearing or who did not have a mental health evaluation before coming to the hearing, can be held involuntarily at an evaluation facility for up tp 7 days before another hearing is held.
Change From Voluntary Patient To Involuntary Patient
A voluntary patient of client in a mental health treatment program who decides to leave the program can be held involuntarily at the facility if the director of the program or a physician believes that the person is a danger to self or others. On the first business day following the person’s request to be discharged, the director or physician must submit a request to the district attorney to begin civil commitment proceedings. A civil commitment hearing must be held within 5 days from the date of the person’s request for discharge.
30-Day Commitment
Once a petition for civil commitment has been filed with the court, you and your lawyer must receive a copy. You can make the decision to waive your right to a hearing after talking to your lawyer. (If you choose to waive your right to a hearing, you can be involuntarily committed for up to 30 days.) At the civil commitment hearing you have the right:
At this first hearing the court may order commitment for up to 30 days if it is found by clear and convincing evidence:
Within 21 days of the beginning of the 30 days commitment period, a physician, the State of New Mexico, or the evaluation facility may petition the court for an extended commitment. An extended commitment proceeding must be held before the end of the 30-day commitment unless you choose to waive your right to a court proceeding. (If you give up your right to a court proceeding, you can be involuntarily committed for the extended period.) You have the same rights at this proceeding as you do at a 30-day commitment hearing, plus you have the right:
to request a jury trial; and
to appeal the decision to a higher court.
After the extended commitment hearing the court can order commitment for up to 6 months unless you have been committed twice in a row; commitment can then be for up to one year. When the commitment period ends, you can be held involuntarily only after a new court proceeding. While you are serving a civil commitment period, you have all the rights described in this booklet and the same rights as any citizen, except the right to choose where you live and to come and go as you please. You also have the right:
to request the court to re-examine your commitment order at any time. The court must hear your request if at least 60 days have passed since the court last considered your commitment. (A friend or relative can do this for you.);
to apply for voluntary patient status; or
to petition for a writ of habeas corpus. (A writ of habeas corpus tests the legality of the original commitment process. It can be used to declare your original commitment invalid if any of the procedures for civil commitment were improper. A friend or relative can petition for you.)
If the director of the facility where you have been committed believes that you have improved and that it is no longer in your best interests to stay at the facility, you can be released on convalescent status. The director can order that you return to the facility any time it is believed that you require in-patient treatment again, until the end of your commitment period. If you do not return to the facility voluntarily when such an order is made the facility may ask the court to hold a hearing and order the police to take you back. Once your commitment period ends, you cannot be ordered to return to the facility without a new civil commitment hearing.
The director can also officially discharge you from the facility while you are released on convalescent status. If that is done you cannot be ordered to return even if your commitment period has not ended.
The fact that a person is receiving mental health services, or ever has, does not mean that he or she is incompetent or incapacitated, nor does being involuntarily committed to a treatment program mean that a person is incompetent or incapacitated. To be found legally incompetent or incapacitated requires a court proceeding in which the person who believes someone is incompetent or incapacitated must prove that because of a disability the person is unable to manage his/her affairs, property or financial affairs or both.
If a person is unable to manage his/her property and affairs effectively and there is property which will require protection, a conservator may be appointed by a probate court to manage the property for the person. If a person is found by the court to be incapacitated and unable to make personal decisions, the court may appoint a guardian to make some or all decisions for the incapacitated person.
During any guardianship, conservatorship or competency proceeding in court, you have the following rights:
to be represented by a lawyer;
to have your side of the story told;
to have your own independent mental health professional testify on your behalf;
to cross-examine witnesses;
to have a private hearing, if you choose; and
to be present at the proceeding.
A guardian or conservator may be appointed by the court for a specified period of time or for an indefinite period. A request for this kind of order may be made by informal letter to the judge.
A person can be found incapacitated or unable to function in limited areas. A guardian or conservator is then appointed to make decisions for the person only in the specific areas listed in the court order.
If it is believed that a person is not capable or making his/her own treatment decisions, and interested person can petition the court for appointment of a treatment guardian. The treatment guardian has the legal authority to make decisions about the kind of treatment the person will receive. Once a petition has been filed, there must be a hearing within 3 working days.
A treatment guardian can be appointed for a limited amount of time, not to exceed one year. At the end of that appointment a new hearing must be held before the guardian can continue to have the legal authority the make treatment decisions. You, your lawyer, your relatives, or your guardian have the right to petition the court at any time to end the treatment guardianship.
Before making decisions, the treatment guardian is required to consult with you and consider your opinions and any previous decisions you have made under similar circumstances. Your, your physician, or mental health professional have 3 days after hearing the treatment guardian’s decision, to appeal to the court. You have the right to be represented by a lawyer during the appeal. The court may overrule the treatment guardian’s decision if it believes that it is not in your best interests.
Advocate: To speak out in support of a position or cause; a person who speaks out in support of a position or cause.
Appeal: To challenge a court decision in a higher court.
Aversive Stimuli: Anything which, because it is believed to be unreasonable, unpleasant, uncomfortable or distasteful, is used to cause a behavior to occur less often (does not include talk therapies, physical restrictions to prevent harm to self or others, or psychotropic medications which are not used as punishment).
Behavior modification programs: Programs designed to change a person’s behavior, usually by rewarding some types of behavior and punishing or ignoring other types of behavior.
Case record: The written record containing a person’s past and current treatment, therapy, behavior, personal and family history, evaluations, and/or treatment plan.
Civil commitment: A court order requiring a person to receive mental health evaluation and treatment as an in-patient or out-patient.
Civil commitment hearing: A court procedure where it is decided if a person should be sent involuntarily to a mental health treatment program because it is believed he or she has a mental disorder that makes him/her a danger to self or others.
Clear and convincing evidence: Proof sufficient to persuade a reasonably minded person.
Competency: A person’s ability to understand the nature and effect of his/her actions and to make rational decisions.
Competent: Having competency.
Consent: Oral or written permission. In order for consent for treatment to be sufficient under the law, you must be fully informed as to the problem for which the treatment is proposed, a description of the treatment and how it works, the risks and consequences of the treatment, the likelihood that the treatment will be successful, the possible alternatives, and the consequences of receiving no treatment.
Conservator: A person appointed by the court to manage the money and/or property for someone who has been found incompetent or incapacitated.
Convalescent status: When a person who has been committed as an in-patient in a treatment program is given permission to leave by the director of the program before the commitment period has ended.
Convulsive therapy: Electric shock or insulin coma shock treatments.
Court order: A judge’s ruling, usually in written form.
Cross-examine: To question a witness in court who has testified for the other side.
District attorney: A lawyer elected or appointed to serve the people within a certain geographical area as prosecutor for the state.
Due process of law: A general principle of law which guarantees that certain procedures must be followed before a person’s rights or property can be taken away.
Evaluation: The observation, testing, and diagnosis of persons believed to have a mental disorder by a mental health professional; and/or the written report of such findings.
Evaluation facility: A community mental health program, a medical facility having psychiatric services available, the Las Vegas Medical Center, or if none of these is reasonably available or appropriate, the office of a licensed physician.
Experimental treatment: Any mental health treatment which may present significant risk of physical harm (does not include accepted treatment used in competent practice of medicine and psychology and supported by scientifically acceptable studies.)
Extended commitment proceeding: A court hearing or jury trial where extended commitment is decided.
Facility: The place that serves to house a treatment program.
Grave passive neglect: Not taking proper care of yourself to the extent that your life is in some danger.
Guardian: A person appointed by the court to make decisions as to care, custody, and control of a person who has been found to be incapacitated (or is a minor).
Incapacitated: To be unable, because of a disability, to make and communicate decisions.
Incompetent: Lacking the ability to understand the nature and effect of one’s actions and to make rational decisions.
Independent mental health professional: A mental health professional who is not associated with the person, party, program or agency that is bringing court action against a person.
In-patient: a person receiving mental health services while living in a hospital, nursing home, or community residential program such as a halfway house or transitional home.
Involuntary patient or client: A person who is ordered by the court to receive mental health services either as an in-patient or out-patient.
Jury: A group of impartial people assigned at a trial or hearing to make the final decision based on the facts that have been presented in the case.
Least drastic means: The legal requirement that a person’s treatment be nor more harsh, hazardous or intrusive than is necessary to protect the person from harm; the least restriction of a person’s physical movements (care should be provided as close as possible to a person’s home).
Least restrictive environment: The setting or place that causes the least change to a person’s normal pattern of living and working which is at the same time effective in meeting that person’s needs (It should be as close as possible to the person’s home).
Medication: Medicine; drugs.
Mental disorder: A substantial disorder of a person’s emotional processes, thought, or ability to learn which seriously impairs judgment, behavior, or capacity to recognize reality.
Mental health professional: A physician or other professional who by training or experience is qualified to provide mental health services.
Out-patient: A person receiving mental health services from a community mental health center, a private psychiatrist, or any other mental health professional while living independently, with friends or relatives, or in a boarding home.
Petition: A written document submitted to the court asking that the court take a specific action.
Physician: A medical doctor, including a psychiatrist.
Psychological: Involving the mind or emotions.
Psychosurgery: Surgery on the brain to control or change thoughts, emotions, and/or behavior.
Restraint: A device or means of limiting or restricting a person’s movement or behavior.
Seclusion: Separation from others; isolation.
Summons: An official order to appear in court.
Testify: To make an official statement in court after swearing to tell the truth.
Therapy: Treatment of illness, disability, or psychological problems.
Treatment guardian: A person appointed by the court to make treatment decisions for someone found by the court incapable of making or expressing informed treatment decisions.
Treatment plan: The specific course of action to be taken to help a person achieve treatment goals, move to the least restrictive environment possible, and improve the quality of his/her life.
Treatment program: A place or design for providing mental health services to a person as an in-patient or out-patient.
Trial: The formal examination of the facts of a case by a court of law.
Voluntary patient or client: A person who freely chooses to receive mental health services, either as an in-patient or out-patient.
Waive: To give up a right voluntarily.
Witness: A person asked to testify in court.
Writ of habeas corpus: An order by a court to release a person who is confined, after examination of the legality of the person’s confinement.
Advocacy Organizations
In New Mexico
Protection and Advocacy System
1720 Louisiana Blvd. NE, Suite 204
Albuquerque, NM 87110
Periodicals
Constructive Action Newsletter
810 Lodi Street, No. B1104
Syracuse, NY 13203
Phoenix Rising
P.O. Box 7251
Station A
Toronto, Ontario M5W 1X9