A. If the secretary or a representative of the department has knowledge that a person is infected with or reasonably believes that a person is infected with or exposed to a threatening communicable disease and the person has refused voluntary treatment, testing, evaluation, detention or observation, the secretary or the secretary's designee shall petition the court for an order to isolate or quarantine the person until the person is no longer a threat to the public health or until the person voluntarily complies with treatment and contagion precautions.
B. The secretary or a representative of the department whom the secretary designates may, by public health order, temporarily isolate or quarantine a person or group of persons if delay in isolating or quarantining would significantly jeopardize the secretary's ability to prevent or limit the transmission to others of a threatening communicable disease. The public health order shall expire at the end of twenty-four hours from the time of the commencement of the isolation or quarantine. The secretary may petition for a court order that authorizes the continued isolation or quarantine of the person or group of persons. In the petition, the secretary shall present facts used to support the need to have issued the public health order to isolate or quarantine.
C. Whether or not a public health order to isolate or quarantine was previously issued, a petition for a court order shall be made under oath or shall be accompanied by a sworn affidavit setting out specific facts showing the basis upon which isolation or quarantine is justified, including whether a person to be isolated or quarantined:
(1) is infected with, reasonably believed to be infected with or exposed to a threatening communicable disease; and
(2) poses a substantial likelihood of transmission of the threatening communicable disease to others because of inadequate separation from others.
D. Upon the filing of a petition, the court shall:
(1) immediately grant ex parte a court order to isolate or quarantine the affected person if there is probable cause from the specific facts shown by the affidavit or by the petition to give the judge reason to believe that the affected person poses a substantial threat to the public health and safety;
(2) cause the court order, notice of hearing and an advisement of the terms of the court order, including the affected person's rights to representation and re-petition for termination of a court order that removes and detains the affected person, to be immediately served on the affected person; and
(3) within five days after the granting of the court order, hold an evidentiary hearing to determine if the court shall continue the order.
E. A person held pursuant to a court order as set forth in Subsection D of this section shall be:
(1) entitled to representation by counsel at the evidentiary hearing and at all hearings thereafter for the duration of the period of removal and detention; and
(2) permitted to communicate on any matter, including the person's isolation or quarantine, with persons by telephone, or other reasonably available means that do not expose other persons to the risk of infection, for the duration of the period of isolation or quarantine.
F. Counsel may be retained by the person held or shall be appointed by the court if the court determines that the person held cannot afford legal representation or if the court determines that appointment of counsel is required in the interest of justice.
G. At the evidentiary hearing, the court shall review the circumstances surrounding the court order and, if the petitioner can show by clear and convincing evidence that the person being held has not voluntarily complied or will not voluntarily comply with appropriate treatment and contagion precautions, the court may continue the isolation or quarantine. The court shall order regular review of the order to isolate or quarantine by providing the person being held with a subsequent hearing within thirty days of the court order's issuance and every thirty days thereafter. The court order to isolate or quarantine shall be terminated and the affected person shall be released if:
(1) the person being held is certified by a public health official to pose no further risk to the public health;
(2) at a hearing, the petitioner, whose burden of proof continues under a clear and convincing standard, can no longer show that the person being held is infected with, reasonably believed to be infected with or exposed to a threatening communicable disease and that the affected person will not comply with appropriate treatment and contagion precautions voluntarily; or
(3) exceptional circumstances exist warranting the termination of the court order.
H. The provisions of this section do not permit the forcible administration of medications. A person isolated or quarantined pursuant to this section has the right to refuse to participate in medical treatment, testing, physical or mental examination, vaccination, specimen collection or preventive treatment.
I. A person who is isolated or quarantined pursuant to a court order may petition the court to contest the order or the conditions of isolation or quarantine at any time prior to the expiration of the order. If a petition is filed, the court shall hold a hearing within five days after the date of filing. The filing of a petition for a hearing pursuant to this subsection does not stay a court order for isolation or quarantine. At the hearing, the secretary shall offer clear and convincing evidence that:
(1) the isolation or quarantine is warranted; or
(2) the conditions of isolation or quarantine are compliant with the provisions of this section.
J. When isolating or quarantining an affected person, the secretary shall ensure that:
(1) isolation or quarantine is the least restrictive means necessary to protect against the spread to others of a communicable disease or a potentially threatening communicable disease and may include confinement to the affected person's private home, if practicable, or if not practicable, to a private or public premises;
(2) an isolated person is confined separately from a quarantined person;
(3) the health status of an isolated or quarantined person is monitored regularly to determine whether continued isolation or quarantine is required;
(4) if a quarantined person becomes infected or is reasonably believed to be infected with the threatening communicable disease subsequent to quarantine, that affected person shall be promptly isolated;
(5) the needs of a person isolated or quarantined are addressed in a systematic and orderly manner, including the provision of adequate food, clothing, shelter, sanitation and comfort;
(6) there are methods of communication available to a person placed in isolation or quarantine to enable communication with family members, household members, legal representatives, advocates, the media and any licensed health care provider;
(7) an area of isolation or quarantine is maintained in a manner that minimizes the likelihood of further transmission of infection or other injury to other persons who are isolated or quarantined; and
(8) to the extent possible, cultural and religious beliefs shall be respected in addressing the needs of affected persons and in establishing and maintaining an area of isolation or quarantine.
K. A person shall not enter an area of isolation or quarantine except as authorized by the department. To protect the public health, the department may isolate or quarantine any person who has entered, with or without the secretary's authorization, into an area of isolation or quarantine.
L. Court proceedings shall be on the record and be closed to the general public. The records shall be sealed from public inspection.
M. A person who in good faith reports another person infected with a threatening communicable disease shall not be held liable for civil damages as a result of the report; provided that the person reported as being infected with a threatening communicable disease shall have the right to sue for damages sustained as a result of negligent or intentional reporting of inaccurate information or the disclosure of information to an unauthorized person.
N. During the period of isolation or quarantine, an employer shall not discharge from employment a person who is placed in isolation or quarantine pursuant to this section.
O. The secretary, after consultation with the state medical investigator, the secretary of public safety, the director and the chair of the board of funeral services, may implement and enforce measures that are reasonable and necessary to respond to a threatening communicable disease and provide for the safe disposal of human remains.
P. For purposes of this section:
(1) "area of isolation or quarantine" means the physical environs that the department designates as the area within which to restrict access as required to prevent transmission of a threatening communicable disease;
(2) "court" means:
(a) the district court of the judicial district where the person who is alleged to be infected with a threatening communicable disease resides or is found; or
(b) in the event that a district court cannot adequately provide services, a district court that the New Mexico supreme court designates;
(3) "isolate" means to physically separate for possible medical care a person who is infected or who is reasonably believed to be infected with a threatening communicable disease or potentially threatening communicable disease;
(4) "public health official" means the secretary, a regional health officer, the director of the public health division of the department, a chief medical officer or a representative of the department designated by the secretary to carry out the duties provided in this section;
(5) "quarantine" means the precautionary physical separation of a person who has or may have been exposed to a threatening communicable disease or a potentially threatening communicable disease and who does not show a sign or symptom of a threatening communicable disease from persons who are not quarantined to protect against the transmission of the disease to persons who are not quarantined; and
(6) "threatening communicable disease" means a disease that causes death or great bodily harm, passes from one person to another and for which there is no means by which the public reasonably can avoid the risk of contracting the disease.
History: 1953 Comp., § 12-34-15, enacted by Laws 1973, ch. 359, § 15; 1999, ch. 159, § 1; 2002, ch. 74, § 1; 2017, ch. 87, § 16.
ANNOTATIONSThe 2017 amendment, effective June, 16, 2017, clarified the authority of the department of health to petition the court for orders of isolation or quarantine where a delay in isolation or quarantine would jeopardize the secretary of health's ability to prevent or limit transmission of a communicable disease, provided due process protections for any person subject to such orders, defined "area of isolation or quarantine", "isolate" and "quarantine", and revised certain definitions for purposes of this section; in the catchline, deleted "Reporting of contagious diseases" and added "Isolation; quarantine; protocol"; replaced "protective order" or "temporary protective order" with "court order" throughout the section; deleted former Subsection A and redesignated former Subsection B as Subsection A; in Subsection A, added "If the secretary or a representative of the department", after "infected with", added "or reasonably believes that a person is infected with or exposed to", after "refused voluntary treatment", added "testing, evaluation", after "detention or observation", added "the secretary or the secretary's designee", after "petition the court for an order to", deleted "detain the person who is infected with the threatening communicable disease" and added "isolate or quarantine the person", after "no longer a", deleted "contagious", after "threat to the public", added "health", after "or", added "until", and after "voluntarily complies with", deleted "the appropriate"; added a new Subsection B; in Subsection C, deleted "The" and added "Whether or not a public health order to isolate or quarantine was previously issued, a", after "petition", added "for a court order", and after "specific facts showing", deleted "that the person is infected with a threatening communicable disease" and added "the basis upon which isolation or quarantine is justified, including whether a person to be isolated or quarantined"; added the language in former Subsection D to Subsection C, and redesignated former Subsections E through I as Subsections D through H, respectively; in Paragraph C(1), after "is", deleted "actively infectious" and added "infected", added "reasonably believed to be infected with or exposed to", after "communicable disease", deleted "or presents a substantial likelihood of having a threatening communicable disease based on credible medical evidence", and deleted Paragraph C(3); in Subsection D, Paragraph D(1), after "to isolate", added "or quarantine", after the next "the", added "affected", after "person", deleted "infected with the threatening communicable disease", after "believe that the", added "affected", and after "person", deleted "infected with a threatening communicable disease", and in Paragraph D(2), after "including", deleted "his right" and added "the affected person's rights", after "detains the", deleted "infected" and added "affected", and after "served on the", deleted "allegedly infected" and added "affected"; in Subsection E, in the introductory clause, after "Subsection", changed "E" to "D", in Paragraph E(2), after "including", deleted "his removal and detention" and added "the person's isolation or quarantine", after "the period of", deleted "removal and detention" and added "isolation or quarantine"; in Subsection G, in the introductory paragraph, after "court may continue the", deleted "detention of the person infected with a threatening communicable disease" and added "isolation or quarantine", after "review of the order to", deleted "detain" and added "isolate or quarantine", after "hearing within", deleted "ninety" and added "thirty", after "issuance and every", deleted "ninety" and added "thirty", after "The", deleted "detention" and added "court", after "order", added "to isolate or quarantine", and after "terminated and the", added "affected", in Paragraph G(1), after "no further risk", deleted "of infecting others" and added "to the public health", and in Paragraph G(2), after "infected with", added "reasonably believed to be infected with or exposed to", after "disease and that", deleted "he" and added "the affected person"; in Subsection H, added the last sentence; added new Subsections I through K and redesignated former Subsection J and K as Subsections L and M, respectively; in Subsection L, added "Court", after "shall be", deleted "recorded stenographically, electronically, mechanically or by other appropriate means. The proceedings shall" and added "on the record and"; added new Subsections N and O and redesignated former Subsection L as Subsection P; in Subsection P, added a new Paragraph P(1) and designated former Paragraph P(1) as Paragraph P(2), in Paragraph P(2), designated the formerly undesignated first sentence as Subparagraph P(2)(a), added "or", and added new Subparagraph P(2)(b), added new Paragraph P(3) and redesignated former Paragraph P(2) as Paragraph P(4), in Paragraph P(4), after "means", added "the secretary", deleted "district" and added "regional", after "department", deleted "of health", after "medical officer or a", deleted "person" and added "representative of the department", after "by the secretary", deleted "of health", and added Paragraph P(5) and redesignated former Paragraph P(3) as Paragraph P(6).
The 2002 amendment, effective May 15, 2002, substituted "infected with a threatening communicable disease" for "sick with any disease dangerous to the public health" in Subsection A; deleted "and treat" following "detain" in Subsection B, and deleted similar references to treatment throughout the section; added new Subsections G, J, and K, and redesignated former Subsections G, H and I as Subsections H, I and L, respectively; and rewrote present Subsection H, shifting the burden of proof to the petitioner rather than the detainee.
The 1999 amendment, effective June 18, 1999, substituted "a public health official" for "the district health officer" in Subsection A and rewrote Subsection B which read: "Any health authority receiving notice that any person is infected with disease dangerous to the public health shall secure his voluntary isolation or, if such person refuses to submit to isolation, he shall file a complaint with any magistrate or district court judge having jurisdiction over the infected person. The complaint shall state the facts as related, under oath, by the health authority or the facts according to his information and belief. Any magistrate or district court judge having jurisdiction may, upon proper complaint, issue a warrant directed to an officer authorized to serve arrest warrants requiring such officer, under the direction of the complaining health authority, to isolate the person".
Power to compel hospitalization of persons infected with dangerous disease. 1960 Op. Att'y Gen. No. 60-08.
Law reviews. — For comment, "Sex, Lies, and Lawsuits: A New Mexico Physician's Duty to Warn Third Parties Who Unknowingly May Be At Risk of Contracting HIV From a Patient," see 26 N.M.L. Rev. 481 (1996).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 39 Am. Jur. 2d Health § 52.
AIDS infection as affecting right to attend public school, 60 A.L.R.4th 15.
Liability of doctor or other health practitioner to third party contracting contagious disease from doctor's patient, 3 A.L.R.5th 370.
39A C.J.S. Health and Environment § 19.