A. The Mental Health Care Treatment Decisions Act does not affect the right of an individual to make mental health treatment decisions while having the capacity to do so.

B. An individual is presumed to have capacity to make a mental health treatment decision, to give an advance directive for mental health treatment or to revoke an advance directive for mental health treatment.

C. An individual shall not be determined to lack capacity solely on the basis that the individual chooses not to accept the treatment recommended by a health care provider.

D. An individual, at any time, may challenge a determination that the individual lacks capacity by a signed writing or by personally informing a health care provider of the challenge. A health care provider who is informed by the individual of a challenge shall promptly communicate the fact of the challenge to the supervising health care provider and to any mental health treatment facility at which the individual is receiving care. Such a challenge shall prevail unless the agent or the treating mental health care provider obtains an order in district court finding the principal does not have the capacity to make mental health treatment decisions.

E. A determination of lack of capacity under the Mental Health Care Treatment Decisions Act shall not be evidence of incapacity under the provisions of Article 5 of the Uniform Probate Code [45-5-101 NMSA 1978].

F. A determination of incapacity shall only be made by two persons, a qualified health care professional and a mental health treatment provider. If after the examination the principal is determined to lack capacity and is in need of mental health treatment, a written certification, substantially in the form provided in Subsection G of this section, of the principal's condition shall be made a part of the principal's medical record.

G. The following certification of the examination of a principal determining whether the principal is in need of mental health treatment and whether the principal does or does not lack capacity may be used by examiners:

"OPTIONAL EXAMINER'S CERTIFICATION

We, the undersigned, have made an examination of ___________, and do hereby certify that we have made a careful personal examination of the actual condition of the person and on such examination we find that __________________:

1. (Is) (Is not) in need of mental health treatment; and

2. (Does) (Does not) lack capacity to participate in decisions about (her) (his) mental health treatment.

The facts and circumstances on which we base our opinions are stated in the following report of symptoms and history of case, which is hereby made a part hereof.

According to the advance directive for mental health treatment, (name of patient) _____________________, wishes to receive mental health treatment in accordance with the preferences and instructions stated in the advance directive for mental health treatment.

We are duly licensed to practice in this state of New Mexico, are not related to _____________________ by blood or marriage and have no interest in her/his estate.

Witness our hands this _______ day of ____________, 20___

_________________________________ M.D., D.O., Ph.D., Other

_________________________________ M.D., D.O., Ph.D., Other

Subscribed and sworn to

before me this ________ day of _____________________, 20____

______________________________

Notary Public

REPORT OF SYMPTOMS AND HISTORY OF CASE BY EXAMINERS

I. GENERAL

Complete name __________________________________

Place of residence ________________________________

Sex ________ Ethnicity ___________________________

Age ________

Date of Birth ____________________________________

II. STATEMENT OF FACTS AND CIRCUMSTANCES

Our determination that the principal (is) (is not) in need for mental health treatment is based on the following:

________________________________________________________________________________

________________________________________________________________________________

Our determination that the principal does not have the capacity to participate in the principal's mental health treatment decisions is based on:

1. the principal's ability to understand and communicate the nature of the proposed health care or mental health treatment described as:

________________________________________________________________________________

________________________________________________________________________________

2. the principal's ability to understand and communicate the consequences of the proposed health care or mental health treatment described as:

________________________________________________________________________________

________________________________________________________________________________

3. the principal's ability to understand and communicate the significant benefits, risks and alternatives to the proposed health care or mental health treatment described as:

________________________________________________________________________________

________________________________________________________________________________

4. the principal's ability to understand and communicate a choice about the proposed health care or mental health treatment described as:

________________________________________________________________________________

________________________________________________________________________________

III. NAME AND RELATIONSHIPS OF FAMILY MEMBERS/OTHERS TO BE NOTIFIED

Other data __________________________________________________

Dated at ________________, New Mexico, this _______ day

of _______________, 20____

___________________________________________ M.D., D.O., Ph.D.,

___________________________________________ Other Address

___________________________________________ M.D., D.O., Ph.D.,

___________________________________________ Other Address."

History: Laws 2006, ch. 7, § 5.

Effective dates. — Laws 2006, ch. 7 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 17, 2006, 90 days after adjournment of the legislature.