A. A peace officer may detain and transport a person for emergency mental health evaluation and care in the absence of a legally valid order from the court only if:

(1) the person is otherwise subject to lawful arrest;

(2) the peace officer has reasonable grounds to believe the person has just attempted suicide;

(3) the peace officer, based upon the peace officer's own observation and investigation, has reasonable grounds to believe that the person, as a result of a mental disorder, presents a likelihood of serious harm to himself or herself or to others and that immediate detention is necessary to prevent such harm. Immediately upon arrival at the evaluation facility, the peace officer shall be interviewed by the admitting physician or the admitting physician's designee; or

(4) a physician, a psychologist or a qualified mental health professional licensed for independent practice who is affiliated with a community mental health center or core service agency has certified that the person, as a result of a mental disorder, presents a likelihood of serious harm to himself or herself or to others and that immediate detention is necessary to prevent such harm. Such certification shall constitute authority to transport the person.

B. An emergency evaluation under this section shall be accomplished upon the request of a peace officer or jail or detention facility administrator or that person's designee or upon the certification of a physician, a psychologist or a qualified mental health professional licensed for independent practice who is affiliated with a community mental health center or core service agency. A court order is not required under this section. If an application is made to a court, the court's power to act in furtherance of an emergency admission shall be limited to ordering that:

(1) the client be seen by a certified psychologist or psychiatrist prior to transport to an evaluation facility; and

(2) a peace officer transport the person to an evaluation facility.

C. An evaluation facility may accept for an emergency-based admission any person when a physician or certified psychologist certifies that such person, as a result of a mental disorder, presents a likelihood of serious harm to himself or herself or to others and that immediate detention is necessary to prevent such harm. Such certification shall constitute authority to transport the person.

D. A person detained under this section shall, whenever possible, be taken immediately to an evaluation facility. Detention facilities shall be used as temporary shelter for such persons only in cases of extreme emergency for protective custody, and no person taken into custody under the provisions of the code shall remain in a detention facility longer than necessary and in no case longer than twenty-four hours. If use of a detention facility is necessary, the proposed client:

(1) shall not be held in a cell with prisoners;

(2) shall not be identified on records used to record custody of prisoners;

(3) shall be provided adequate protection from possible suicide attempts; and

(4) shall be treated with the respect and dignity due every citizen who is neither accused nor convicted of a crime.

E. The admitting physician or certified psychologist shall evaluate whether reasonable grounds exist to detain the proposed client for evaluation and treatment, and, if reasonable grounds are found, the proposed client shall be detained. If the admitting physician or certified psychologist determines that reasonable grounds do not exist to detain the proposed client for evaluation and treatment, the proposed client shall not be detained.

F. Upon arrival at an evaluation facility, the proposed client shall be informed orally and in writing by the evaluation facility of the purpose and possible consequences of the proceedings, the right to a hearing within seven days, the right to counsel and the right to communicate with an attorney and a mental health professional of the proposed client's own choosing and shall have the right to receive necessary and appropriate treatment.

G. A peace officer who transports a proposed client to an evaluation facility under the provisions of this section shall not require a court order to be reimbursed by the referring county.

History: 1953 Comp., § 34-2A-9, enacted by Laws 1977, ch. 279, § 9; 1978, ch. 161, § 4; 1979, ch. 396, § 2; 1989, ch. 128, § 6; 2013, ch. 39, § 2.

The 2013 amendment, effective June 14, 2013, allowed qualified mental health professionals licensed for independent practice to certify that a person presents a danger to that person or others and that immediate detention is necessary to prevent harm and authorized transport of that person to an evaluation facility; in Paragraph (4) of Subsection A, after "a", deleted "licensed", after "physician", deleted "or" and after "a physician, a" deleted "certified" and after "psychologist", added "or a qualified mental health professional licensed for independent practice who is affiliated with a community mental health center or core service agency"; in Subsection B, in the first sentence, after "upon the certification of a" deleted "licensed", after "certification of a physician", deleted "or certified" and added "a", after "psychologist", deleted "as described in Subsection G of this section" and added "or a qualified mental health professional licensed for independent practice who is affiliated with a community mental health center or core service agency"; in Subsection C, after "any person when a", deleted "licensed"; in Subsection E, in the second sentence, after "do not exist to detain the", added "proposed" and after "evaluation and treatment, the" added "proposed"; in Subsection F, after "consequences of the proceedings", deleted "the allegations in the petition, his" and added "the"; after "an attorney and", deleted "an independent" and added "a", and after "mental health professional of", deleted "his" and added "the proposed client's"; and in Subsection G, after "who transports", deleted "any" and added "a proposed".

The 1989 amendment, effective June 16, 1989, substituted the present catchline for "Residential mental health treatment of adults - involuntary - emergency"; in Subsection A inserted "and transport" in the introductory paragraph, inserted "likelihood of" in the first sentence of Paragraph (3), and added Paragraph (4); added present Subsection B; redesignated former Subsections B through E as present Subsections C through F; inserted "or certified psychologist" in present Subsections C and E; in present Subsection C substituted "for an emergency based admission" for "on an emergency basis" in the first sentence and added the second sentence; and added Subsection G.

Protection against unreasonable seizure. — To the extent that the involuntary seizure of a person for an emergency mental health evaluation mirrors a criminal arrest, the Fourth Amendment's protection against unreasonable searches and seizures more specifically applies to the involuntary seizure for emergency mental health purposes than the Fourteenth Amendment's general substantive and procedural due process guarantees. Pino v. Higgs, 75 F.3d 1461 (10th Cir. 1996).

Probable cause analysis applies. — In the criminal arrest context, a Fourth Amendment seizure is reasonable if it is based on "probable cause"; because similar underlying interests arise in the context of a detention for an emergency health evaluation, the "probable cause" doctrine applies in determining the validity of the government's seizure of a person for mental health reasons. Pino v. Higgs, 75 F.3d 1461 (10th Cir. 1996).

Requirements for criminal bail do not apply as basis for considering stay of commitment order. State v. Pernell, 1979-NMCA-008, 92 N.M. 490, 590 P.2d 638.

Court may consider circumstances. — In considering the question of a release during commitment proceedings, the trial court may consider the circumstances alleged, and after ordering a commitment may consider the circumstances as well as the length of the commitment ordered. State v. Pernell, 1979-NMCA-008, 92 N.M. 490, 590 P.2d 638.

"Right" to stay of commitment order is not absolute. State v. Pernell, 1979-NMCA-008, 92 N.M. 490, 590 P.2d 638.

Appellate review for abuse of discretion. — Appellate review is on the basis of whether the trial court's order in connection with a stay was an abuse of discretion. State v. Pernell, 1979-NMCA-008, 92 N.M. 490, 590 P.2d 638.

Private physician's 42 U.S.C. 1983 liability. — A private physician who certifies a person for purposes of Subsection A is not subject to Section 1983 liability simply because a state police officer responds by transporting or detaining that person. Pino v. Higgs, 75 F.3d 1461 (10th Cir. 1996).

Twenty-four hour detention limitation. — The provisions of Subsection D are clear and unambiguous - mentally ill persons being held in detention facilities pending transfer to a proper evaluation facility may not be so confined for a period longer than twenty-four hours. By including this specific time limitation and failing to make exceptions for weekends and legal holidays, the legislature intended the twenty-four hour limitation to apply in all instances, including weekends and legal holidays. 1990 Op. Att'y Gen. No. 90-15.

Law reviews. — For comment, "Mental Health Law - Temporary Detention of 'Voluntary' Patients by Hospital Authorities: Due Process Issues," see 12 N.M.L. Rev. 791 (1982).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 53 Am. Jur. 2d Mentally Impaired Persons § 3 et seq.

Modern status of rules as to standard of proof required in civil commitment proceedings, 97 A.L.R.3d 780.

Necessity and sufficiency of statements informing one under investigation for involuntary commitment of right to remain silent, 23 A.L.R.4th 563.

57 C.J.S. Mental Health § 21 et seq.