If you are an in-patient or out-patient consumer of mental health services, you have the right to make decisions and choices about your treatment, including your medication. If it is determined that a consumer cannot make decisions about his or her mental health treatment, then a treatment guardian can be appointed.

This handbook outlines some general information about treatment guardianship issues as they relate to the consumer and the person appointed to make treatment decisions for a person with mental illness. There are some commonly asked questions with plain language answers to help the consumer understand his or her rights should a treatment guardian be appointed. These questions and answers are also intended to assist a person who is a treatment guardian by giving some practical information about the scope of their legal capacity in this role of "decision maker" for a person with mental illness who cannot make mental health treatment decisions for themselves.

[NOTE: The use of "he", "his", or "him", is used as a neutral representation of both genders.]

Capacity - Ability to understand the nature and effects of one's actions.

Competence - Possessing mental ability to understand the nature of one's acts and choices, as well as the consequences of those acts and choices.

Conservator - A person who is appointed by a Court to manage the financial affairs of a protected person or a person who has been found to be incompetent.

Consumer - A person who is currently using (or who has in the past used) the services of mental health providers including residential psychiatric facilities, outpatient mental health services, a private psychiatrist, psychologist, counselor or other individual mental health care provider.

Court - The district courts of the State of New Mexico and its divisions including Children's Court and Domestic Relations Court.

Disability - Physical or emotional illness which limits a person's ability to function in a major life area.

Guardian - A person who has been appointed by a court to have the care, custody or control of a minor or incapacitated person. This definition excludes one who is a guardian ad litem.

Guardian ad litem - An attorney appointed by the district court before or during the course of litigation. The guardian ad litem represents and protects the best interests of the minor or incapacitated person.

Incapacitated person - Any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, or other cause, to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person or management of his affairs. In this definition, the fact that a person is younger than eighteen does not necessarily make him incapacitated.

Informed Consent - When a consumer exercises his judgment by reasonably considering the risks against the benefits of a proposed treatment or medication and decides to accept or refuse such treatment based on the information a physician has a duty to disclose.

Minor - A person who has not reached eighteen years of age.

Minor ward - A person under the age of eighteen years for whom a guardian has been appointed solely because of his age.

Person - Includes an individual or entity including corporations, organizations or agencies.

Protected person - A person, regardless of age, for whom a guardian has been appointed.

Ward - The person for whom a guardian has been appointed.

What is a treatment guardian?

A treatment guardian is a person assigned by the court to make decisions regarding mental health treatment when a court determines a person with mental illness is unable to make those decisions. The issue of a treatment guardian usually comes up when a psychiatrist suggests the use of psychotropic medication. Although treatment guardians are only assigned to consumers who are in mental health facilities, a treatment guardian's responsibility may continue after the consumer is discharged.

Who can be a treatment guardian?

The Mental Health Code does not place any restrictions on who can be a treatment guardian. The treatment guardian must be able to make rational decisions concerning the consumer's treatment, and must be able to act in the consumer's best interest.

Sometimes, the treatment guardian is a family member, friend or other individual who is familiar with the consumer's psychiatric disability.

What does a treatment guardian do?

A treatment guardian must be willing to consult with the consumer, the consumer's treatment providers, and perhaps the consumer's family, friends, and attorney to gain input about the consumer's wishes. A treatment guardian uses this input in making mental health treatment decisions for the consumer. A treatment guardian must use independent judgement to assess each proposed treatment. A treatment guardian must attend the hearing at which he is appointed. The treatment guardian stays in touch with the psychiatrist and the consumer. The treatment guardian should be contacted before changes in treatment are begun.

How long is a treatment guardian assigned?

A treatment guardian can be assigned by the court for no longer than one (1) year at a time. Frequently, a treatment guardian can be assigned for a 2-6 month period. If at any time the consumer believes he is competent to make his own treatment decisions, he can petition the court to terminate the guardianship.

Who can have a Treatment Guardian?

New Mexico's Mental Health Code states that only when a patient is receiving inpatient mental health or developmental disabilities services may the need for a treatment guardian be considered.

Can a consumer who is a voluntary inpatient in a facility be appointed a treatment guardian?

When is a treatment guardian needed?

Generally, no treatment may be performed without informed consent. A treatment guardian may be needed in situations in which a consumer is unable to provide informed consent for treatment. The Mental Health Code requires that if the consumer is capable of giving informed consent, his consent shall be obtained before performing extraordinary treatment (i.e., aversive stimuli, convulsive treatment, experimental treatment, psychosurgery). If the consumer is not capable of giving or withholding informed consent, the mental health professional, physician or other interested person may petition the district court for the appointment of a treatment guardian. The petition must be served on the consumer and/or his attorney. Commonly, the issue of whether a person needs a treatment guardian usually arises when a treating psychiatrist is proposing the use of psychotropic medication.

What kinds of treatment comes may a treatment guardian consent to?

Generally, the treatment guardian will have the authority to make decisions regarding any mental health treatment. A treatment guardian does not have the authority to make decisions about any medical treatment. The scope of the treatment guardian's powers may be limited by the court ordering appointment of the treatment guardian. [Note: A treatment guardian may be sought if the client is not able to consent to the release of confidential information].

What if the only issue is the release of confidential mental health records?

The Mental Health Code provides that a treatment guardianship can be sought to provide consent for the release of confidential medical information regarding the consumer. If the person is less than fourteen (14) years of age, consent may be obtained from the parent or guardian. If no treatment issues are present, the order appointing the treatment guardian should be limited to the release of the confidential information.

What is Informed Consent?

A consumer is assumed to be capable of giving or withholding informed consent when he or she is capable of understanding the health care provider's explanation of the nature, benefits, risks and side effects of the proposed treatment, possible treatment alternatives or no treatment. If it is believed that

a consumer is not capable of informed consent, a petition for treatment guardian is filed.

What is the procedure for petitioning for a treatment guardian?

To initiate the process, a document called Petition for Appointment of a Treatment Guardian is filed with the District Court, and a copy is served to the consumer and/or his attorney. By statute, a hearing on the petition must be held within three (3) court days. The client has a right to be present and to be represented by counsel, to present witnesses and to cross-examine witnesses. The petitioner's burden is to prove by clear and convincing evidence that the client is incapable of providing informed consent regarding the proposed treatment. At the hearing on the petition for a treatment guardian, an expert witness (usually the consumer's treating physician) can be asked for an opinion regarding the consumer's capacity for informed consent related to the proposed treatment and the basis for that opinion. Some examples of a consumer's behavior that may, but do not necessarily indicate an inability to give or withhold informed consent are:

* a consumer who is psychotic and unable to understand that he or she is psychotic

* a consumer who is responding to command hallucinations

* a consumer who is in a delusional phase

* a bi-polar consumer in a manic phase (racing thoughts and grandiosity)

* a consumer who is mentally retarded

NOTE: There are no notice requirements beyond giving a copy of the petition to the consumer and/or the consumer's attorney. There is also no requirement that the consumer's family be contacted or given notice of the proceedings unless the consumer is a minor.

Who can petition for treatment guardian?

Any mental health care professional, attorney or family member. Also, a current or past treatment guardian may petition to renew a person's treatment guardian status.

Who is an appropriate expert witness?

The Mental Health Code requires that the witness be a "mental health professional or physician". A mental health professional is a physician or other professional who by training or experience is qualified to work with individuals with mental disorders. The expert witness may also be a psychiatrist, licensed psychologist, bachelors or masters level psychologist, or social worker.

Can a decision to appoint a treatment guardian be appealed?

The Mental Health Code provides that a decision of a treatment guardian may be appealed by the consumer, physician or other professional. The appeal must be filed with the district court within three (3) calendar days of receiving notice of the treatment guardian's decision. The court may overrule the decision of the treatment guardian if it finds the decision to be against the best interest of the consumer.

What happens when the treatment provider cannot contact the treatment guardian?

In this situation, consumers must not receive the proposed treatment or changes in treatment until the treatment guardian can be reached. It may be necessary to apply to the court for an order allowing the treatment provider to make changes in treatment.

Can treatment guardians be used outside the hospital setting?

Yes, although the person must be an inpatient for the treatment guardianship to be established. Treatment guardians can be used in a community setting following discharge to make or continue to make treatment decisions for a consumer. Additionally, the treatment guardian has the ability to apply to the court for an order forcing a client to take his or her medication. This is called an enforcement order. This order may be used as a way of keeping the consumer in the community and out of the hospital by insuring they continue with their prescribed treatment or medication. However, this enforcement order may also be used to return a consumer to an inpatient facility for treatment if the consumer is non-compliant with medication and/or treatment.

Is it possible to obtain a treatment guardian for a Minor?

If a consumer is under the age of fourteen (14), consent of the parent or guardian is required before psychotropic medications can be administered. For minors over the age of 14, the minor's consent is required. In cases where the consent of the minor is not obtained or the parent or guardian objects, and where the administration of the drug or program is necessary to the minor's treatment and there is no alternative treatment to consider, the health care provider or other interested person may petition for a treatment guardian.

What if the consumer regains competence to make his own treatment decisions?

If it is believed that a consumer has regained competency to make his own treatment decisions, a petition may be filed with the district court to terminate the treatment guardianship. The Mental Health Code provides that the treatment guardian, treatment provider, consumer, member of consumer's family, or consumer's attorney may file the petition. At the hearing, the burden of proof is on the petitioner to prove that the consumer has regained his ability to make treatment decisions. The court will also require the person who originally obtained the order for a treatment guardian to show why they believe the consumer is still in need of a treatment guardian.

What if a consumer is in need of emergency medications before the court has appointed a treatment guardian?

New Mexico's Mental Health Code states that emergency medications may be initiated by the licensed physician if it is necessary to protect the consumer from serious harm which would occur while the treatment guardian is being sought. Emergency medication may be administered for no longer than three (3) consecutive days while the hearing on the treatment guardian petition is pending. Emergency medications may be provided to minors if a licensed physician believes that the administration of psychotropic medication is necessary to protect the minor from serious harm while the petition for treatment guardian is pending. This time period is also limited to three (3) consecutive days. The Mental Health Code requires that the physician document in the minor's medical record the nature of the emergency and the reason less drastic treatment would not have been appropriate.

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.

Applicable sections from the Mental Health Code:

NASA Section 43-1-3: Definitions.
NASA Section 43-1-15: Consent to treatment; adults clients.
NASA Section 43-1-17 C,D: Treatment and habilitation of minors; liability.
NASA Section 43-1-19E: Disclosure of information.

December 1993