A. A child fourteen years of age or older who has capacity also has the right to direct the child's own treatment in the event of later incapacity. To do so, the child may give an individual instruction regarding the child's own treatment or habilitation. The individual instruction may be limited to take effect only if a specified condition arises.
B. An individual instruction shall be effective without judicial approval and shall be written and signed by the child and the child's legal custodian and signed by a witness who is at least eighteen years of age and who attests that the child and the child's legal custodian are known to the witness, that they signed the individual instruction for mental health treatment in the witness' presence and that they appear to have capacity and are not acting under duress, fraud or undue influence.
C. A witness to an individual instruction shall not be related to the child or the child's legal custodian by blood or marriage, the child's attending qualified health care professional or an owner, operator or employee of a mental health facility at which the child is receiving care or of any parent organization, subsidiary or contractor of the mental health facility.
D. If the child's legal custodian refuses to consent to the individual instruction, the child may petition the court for determination of whether the individual instruction is in the child's best interest.
E. A child's legal custodian or treatment guardian shall make treatment decisions in accordance with the child's individual instruction unless the treatment requested is infeasible or unavailable or would not offer the child any significant benefit as determined by the child's clinician.
F. The individual instruction shall be implemented by the child's legal custodian under this section only upon certification that the child lacks capacity. The instruction shall cease to be effective upon a determination that the child has recovered capacity.
G. Written certification that a child lacks or has recovered capacity or that another condition exists that affects an individual instruction shall be made according to the provisions of the Children's Mental Health and Developmental Disabilities Act. A child while having capacity may revoke all or part of an individual instruction for mental health treatment at any time and in any manner that communicates an intent to revoke.
H. The fact that a child has executed a written individual instruction for treatment shall not constitute an indication of mental illness.
I. A clinician who knows the existence of an individual instruction for mental health treatment, a revocation or a challenge to a determination or certification of lack of capacity shall obtain a copy and shall place it in the child's health care record.
J. A clinician shall disclose an individual instruction for mental health treatment to other clinicians only when it is determined that the disclosure is necessary to provide treatment in accordance with an individual instruction.
History: Laws 2007, ch. 162, § 18.
ANNOTATIONSEffective dates. — Laws 2007, ch. 162 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 15, 2007, 90 days after the adjournment of the legislature.