A. Every adult client involuntarily admitted to an evaluation facility pursuant to Section 43-1-10 NMSA 1978 has the right to a hearing within seven days of admission unless waived after consultation with counsel. If a physician or evaluation facility decides to seek commitment of the client for evaluation and treatment, a petition shall be filed with the court within five days of admission requesting the commitment. The petition shall include a description of the specific behavior or symptoms of the client that evidence a likelihood of serious harm to the client or others and shall include an initial screening report by the evaluating physician individually or with the assistance of a mental health professional or, if a physician is not available, by a mental health professional acceptable to the court. The petition shall list the prospective witnesses for commitment and a summary of the matters to which they will testify. Copies of the petition shall be served on the client, the client's guardian, and treatment guardian if one has been appointed, and the client's attorney.

B. At the hearing, the client shall be represented by counsel and shall have the right to present evidence on the client's behalf, including testimony by an independent mental health professional of the client's own choosing, to cross-examine witnesses and to be present at the hearing. The presence of the client may be waived upon a showing to the court that the client knowingly and voluntarily waives the right to be present. A complete record of all proceedings shall be made.

C. A court-appointed guardian for an adult involved in an involuntary commitment proceeding shall have automatic standing to appear at all stages of the proceeding and shall be allowed to testify by telephone or through affidavit if circumstances make live testimony too burdensome.

D. The court shall include in its findings the guardian's opinion regarding the need for involuntary treatment or a statement detailing the efforts made to ascertain the guardian's opinion.

E. Upon completion of the hearing, the court may order a commitment for evaluation and treatment not to exceed thirty days if the court finds by clear and convincing evidence that:

(1) as a result of a mental disorder, the client presents a likelihood of serious harm to the client's own self or others;

(2) the client needs and is likely to benefit from the proposed treatment; and

(3) the proposed commitment is consistent with the treatment needs of the client and with the least drastic means principle.

F. Once the court has made the findings set forth in Subsection E of this section, the court shall hear further evidence as to whether the client is capable of informed consent. If the court determines that the client is incapable of informed consent, the court shall appoint for the client a treatment guardian who shall have only those powers enumerated in Section 43-1-15 NMSA 1978.

G. An interested person who reasonably believes that an adult is suffering from a mental disorder and presents a likelihood of serious harm to the adult's own self or others, but does not require emergency care, may request the district attorney to investigate and determine whether reasonable grounds exist to commit the adult for a thirty-day period of evaluation and treatment. The applicant may present to the district attorney any medical reports or other evidence immediately available to the applicant, but shall not be required to obtain a medical report or other particular evidence in order to make a petition. The district attorney shall act on the petition within seventy-two hours. If the district attorney determines that reasonable grounds exist to commit the adult, the district attorney may petition the court for a hearing. The court may issue a summons to the proposed client to appear at the time designated for a hearing, which shall be not less than five days from the date the petition is served. If the proposed client is summoned and fails to appear at the proposed time and upon a finding of the court that the proposed client has failed to appear, or appears without having been evaluated, the court may order the proposed client to be detained for evaluation as provided for in Subsection C of Section 43-1-10 NMSA 1978.

H. Any hearing provided for pursuant to Subsection G of this section shall be conducted in conformance with the requirements of Subsection B of this section.

History: 1953 Comp., § 34-2A-10, enacted by Laws 1977, ch. 279, § 10; 1978, ch. 161, § 5; 1979, ch. 396, § 3; 1989, ch. 128, § 7; 2009, ch. 159, § 14.

The 2009 amendment, effective June 19, 2009, in Subsection A, in the second sentence, deleted "the division" and added the article "A"; and in the last sentence, added "the client's guardian, and treatment guardian if one has been appointed"; and added Subsections C and D.

The 1989 amendment, effective June 16, 1989, substituted the present language of Subsection D for "If the court finds that the client meets the criteria for commitment set forth in Subsection C of this section but does not require residential care, it may order the client to undergo such nonresidential treatment as may be appropriate and necessary", and made minor stylistic changes throughout the section.

Civil commitment interests generally. — In the civil commitment situation, the interests of the state are pitted against restrictions on the liberty of the individual. The language of 34-2-5, 1953 Comp. (now repealed) indicated that the aim of the state is first to protect society from the mentally ill, a manifestation of the state's police power, and also to protect the mentally ill from themselves, while providing care and treatment. In re Valdez, 1975-NMSC-050, 88 N.M. 338, 540 P.2d 818.

Nature of commitment process. — The civil commitment process, though technically a civil proceeding, has elements of both criminal and civil proceedings, with some of the rights guaranteed to criminal defendants applicable to defendants in commitment hearings. In re Valdez, 1975-NMSC-050, 88 N.M. 338, 540 P.2d 818.

Compliance with due process mandated. — Compliance with due process requirements, as far as the burden of proof in commitment proceedings for the mentally ill is concerned, is mandated. In re Valdez, 1975-NMSC-050, 88 N.M. 338, 540 P.2d 818.

Proof beyond reasonable doubt too stringent. — Although the highest standard of proof would be desirable, in the civil commitment process, proof beyond a reasonable doubt is too stringent a standard to be applied. In re Valdez, 1975-NMSC-050, 88 N.M. 338, 540 P.2d 818.

Proof that is clear, cogent and convincing is highest standard of proof possible at the current state of the medical arts. For evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder's mind must be left with an abiding conviction that the evidence is true. In re Valdez, 1975-NMSC-050, 88 N.M. 338, 540 P.2d 818.

The state's interests are sufficient and the realities of treatment are adequate to justify subjecting individuals to possible commitment based on a "clear and convincing" standard of proof. In re Valdez, 1975-NMSC-050, 88 N.M. 338, 540 P.2d 818.

Preponderance of evidence is definitely constitutionally unacceptable for civil commitment hearings, in view of the fact that fundamental liberties of the patient are so often at stake. In re Valdez, 1975-NMSC-050, 88 N.M. 338, 540 P.2d 818 (decided under former law).

The seven-day hearing requirement was constitutional. — The seven-day time limitation within this section is not constitutionally required; moreover, the 14-day delay in this case did not violate the respondent's due process rights. N.M. Dep't of Health v. Compton, 2001-NMSC-032, 131 N.M. 204, 34 P.3d 593.

Hearing may be postponed for good cause. — Seven-day hearing requirement in Subsection A is subject to postponement for good cause and should be narrowly prescribed and allowed only for so long as necessity demands; a determination of good cause should consider: (1) any objection by the client; (2) the client's substantial interest in not being mistakenly confined against his or her will; and (3) the legislature's intent to require a prompt hearing on a thirty-day commitment petition. N.M. Dep't of Health v. Compton, 2001-NMSC-032, 131 N.M. 204, 34 P.3d 593.

Hearing deadline violation remedy. — In light of the urgent need for treatment in civil commitment cases, the potentially harmful consequences to either the individual or to others for an improper release, the express provision of a statutory remedy, and the availability of the alternative remedy of habeas corpus, the legislature did not intend dismissal of the petition as a proper remedy for a violation of the time requirements in this section. N.M. Dep't of Health v. Compton, 2001-NMSC-032, 131 N.M. 204, 34 P.3d 593.

Hearing to be set with time for counsel to prepare case. — To ensure the effectiveness of the right to counsel guaranteed by Subsection B, the hearing required by Subsection A to be held within seven days must be set so that counsel has sufficient time to prepare his client's case; even if the hearing must be held beyond the seven-day limit. In re Bunnell, 1983-NMCA-095, 100 N.M. 242, 668 P.2d 1119.

Need for preliminary hearing if hearing not within seven days. — If the hearing required by Subsection A cannot be held within seven days because of a client's counsel's need for time to prepare the case, the trial court must hold a preliminary hearing to determine whether the state can present sufficient evidence to justify holding the client beyond the seven-day emergency period allowed under 43-1-10 NMSA 1978. In re Bunnell, 1983-NMCA-095, 100 N.M. 242, 668 P.2d 1119.

No requirement that persons making screening report testify at hearing. — There is no implicit requirement that the person or persons making the initial screening report required by Subsection A testify at the hearing. State v. Dean, 1980-NMCA-010, 94 N.M. 45, 607 P.2d 132, cert. denied, 94 N.M. 628, 614 P.2d 545.

Right to appeal commitment. — A person involuntarily committed to a mental hospital under this section has a right to appeal under N.M. Const., art. VI, § 2, even though no appeal is provided for by statute. State v. Pernell, 1979-NMCA-008, 92 N.M. 490, 590 P.2d 638.

Entitlement to independent mental health professional. — The language of Subsections B and D of 43-1-12 NMSA 1978, when read along with the provisions of this section, clearly evinces a legislative intent to accord to a client the right to the assistance of an independent mental health professional. Dominguez v. State, 1990-NMCA-098, 110 N.M. 618, 798 P.2d 219.

Effective treatment to be afforded. — Mental illness is not a crime, and thus patients must be afforded some type of effective treatment since their liberty is abridged. In re Valdez, 1975-NMSC-050, 88 N.M. 338, 540 P.2d 818.

Mere custodial care is not sufficient. In re Valdez, 1975-NMSC-050, 88 N.M. 338, 540 P.2d 818.

Only district attorneys may file petitions. — A private attorney may not petition a court for involuntary commitment of an adult to a mental health facility. Only district attorneys may file petitions for involuntary commitment of adults. 1988 Op. Att'y Gen. No. 88-02.

Law reviews. — For article, "Treating Children Under the New Mexico Mental Health and Developmental Disabilities Code," see 10 N.M.L. Rev. 279 (1980).

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

For article, "The Guilty But Mentally Ill Verdict and Plea in New Mexico," see 13 N.M.L. Rev. 99 (1983).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Test or criterion of mental condition within contemplation of statute providing for commitment of persons because of mental condition, 158 A.L.R. 1220.

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.