Protection & Advocacy System v. Albuquerque, 27,199.

Citation195 P.3d 1,2008 NMCA 149
Decision Date05 August 2008
Docket NumberNo. 27,199.,27,199.
PartiesPROTECTION AND ADVOCACY SYSTEM, Jane Does 1-3 and John Doe 1, Plaintiffs-Appellees, v. CITY OF ALBUQUERQUE, Defendant-Appellant.
CourtCourt of Appeals of New Mexico

Protection & Advocacy System, Rosemary L. Bauman, Nancy Koenigsberg, ACLU New Mexico, George Bach, Reber Boult, of Counsel, Law Office of Peter Cubra, Peter Cubra, Albuquerque, NM, for Appellees.

City of Albuquerque, Robert M. White, City Attorney, Gregory S. Wheeler, Assistant City Attorney, Peter H. Pierotti, Assistant City Attorney, Robert D. Kidd, Jr., Assistant City Attorney, Albuquerque, NM, for Appellant.

New Mexico Municipal League, Inc., Randall D. Van Vleck, General Counsel, Santa Fe, NM, for Amicus Curiae.


SUTIN, Chief Judge.

{1} In this case, we consider whether City of Albuquerque Ordinance C/S O-06-21, the Assisted Outpatient Treatment Ordinance (the Ordinance), is preempted by state law. First, though, we must consider whether Plaintiffs, Jane Does 1 through 3, John Doe 1, and Protection and Advocacy System (P & A), have standing to challenge the Ordinance. We agree with the district court that Plaintiffs have standing and that the Ordinance is preempted by the State Mental Health and Developmental Disabilities Code (the Code), NMSA 1978, §§ 43-1-1 to -25 (1976, as amended through 2007), and the Mental Health Care Treatment Decisions Act (the Act), NMSA 1978, §§ 24-7B-1 to -16 (2006). Thus, we affirm the district court's declaratory judgment and permanent injunction prohibiting the enforcement of the Ordinance.

I. The Ordinance

{2} The Ordinance became effective on October 6, 2006. It states:

The City Council finds that there are mentally ill persons who are capable of living in the community with the help of family, friends and mental health professionals, but who, without routine care and treatment, may relapse and become violent, suicidal or require hospitalization. The City Council further finds that there are mentally[]ill persons who can function well and safely in the community with supervision and treatment, but who without such assistance, will relapse and require long periods of hospitalization. The City Council further finds that some mentally ill persons, because of their illness, have great difficulty taking responsibility for their own care, and often reject the outpatient treatment offered to them on a voluntary basis. Family members and caregivers often must stand by helplessly and watch their loved ones and patients decompensate.

Albuquerque, N.M., Ordinance C/S O-06-21, § 1 (Oct. 6, 2006).

{3} The Ordinance further indicates that the City Council believed that "assisted outpatient treatment" would be an "[e]ffective mechanism[]" to prevent the mentally ill from requiring hospitalization. Id. The Ordinance defines the following terms:

ASSISTED OUTPATIENT TREATMENT. Court ordered services prescribed to treat a person's mental illness and to assist a person in living and functioning in the community and/or to attempt to prevent a relapse or deterioration that may reasonably be predicted to result in harm to the person or another.

ASSISTED OUTPATIENT TREATMENT PROGRAM. A program that arranges and coordinates the provision of assisted outpatient treatment, including monitoring treatment compliance by patients, evaluating and addressing the conditions or needs of assisted outpatients and ensuring compliance with court orders.

. . . .

MENTAL ILLNESS. A substantial disorder of thought, mood or behavior that afflicts a person and that impairs that person's judgment but does not mean developmental disability.

. . . .

SUBJECT. A person who is alleged in a petition to the court to meet the criteria for [a]ssisted [o]utpatient [t]reatment.

Id. § 3.

{4} The Ordinance allows certain people to file "[a] petition for an order authorizing assisted outpatient treatment" in the Second Judicial District Court. Id. § 5(A). Those people include, but are not limited to, the subject's parent; the subject's spouse, adult sibling, or adult child; the director of a hospital where the subject is hospitalized; the director of an organization, agency, or home where the subject resides or from which the subject receives treatment; a qualified psychiatrist; a provider of social services; or the mayor. Id. Further:

The petition shall be accompanied by an affidavit from a physician, who shall not be the petitioner, and shall state that:

(1) The physician has personally examined the subject no more than ten days prior to the filing of the petition, that the physician recommends assisted outpatient treatment for the subject and that the physician is willing and able to testify in person or by telephone at the hearing on the petition; or

(2) No more than ten days prior to the filing of the petition, the physician or the physician's designee has made appropriate attempts to elicit the cooperation of the subject but has not been successful in persuading the subject to submit to an examination, that the physician has reason to suspect that the subject meets the criteria for assisted outpatient treatment and that the physician is willing and able to examine the subject and testify at the hearing on the petition.

Id. § 5(B).

{5} Under the Ordinance, a hearing shall be held on the petition. See id. § 6(B). If the subject has refused to be examined by a physician, then at the hearing,

the court may request that the [s]ubject consent to an examination by a court appointed physician. If the [s]ubject does not consent to an examination and the court finds that there are reasonable grounds to believe that the allegations in the petition are true, the court may order that a law enforcement officer take the [s]ubject into custody and transport the [s]ubject to a provider for examination by a physician. The examination may be performed by the physician whose affidavit accompanied the petition. No [s]ubject taken into custody pursuant to this section shall be detained longer than seventy-two hours.

Id. § 6(E).

{6} In order for the court to order assisted outpatient treatment, the court must find by clear and convincing evidence that the subject meets the following criteria.

(1) Is eighteen (18) years of age or older;

(2) Is suffering from a mental illness;

(3) Is unlikely to survive safely in the community without supervision, based on a clinical determination by a qualified mental health care professional;

(4) Has a history of lack of compliance with treatment for mental illness that has:

(a) prior to the filing of the petition, at least twice within the last thirty-six months[,] been a significant factor in necessitating hospitalization or receipt of services in a forensic or other mental health unit of a state correctional facility or a local jail facility, not including any period during which the person was hospitalized or incarcerated immediately preceding the filing of the petition; or

(b) prior to the filing of the petition, resulted in one or more acts of serious violent behavior toward self or others or threats of, or attempts at, serious physical harm to self or others within the last forty-eight months, not including any period during which the person was hospitalized or incarcerated immediately preceding the filing of the petition; and

(5) Is unlikely, as a result of mental illness, to voluntarily participate in the recommended treatment pursuant to the treatment plan; and

(6) In view of the person's treatment history and current behavior, is in need of assisted outpatient treatment in order to prevent a relapse or deterioration that would be likely to result in serious harm to himself or another person; and

(7) Will likely benefit from assisted outpatient treatment; and

(8) Is located within the municipal limits of the City.

Id. § 4(A).

{7} The examining physician must provide the court with a proposed written treatment plan. Id. § 7(A)(1). In developing the treatment plan, the physician "shall take into account, if existing, an advance directive," as well as allow the subject, the treating physician, and, upon request of the subject, an individual significant to the subject to have an opportunity to actively participate in the development of the plan. Id. § 7(B).

{8} In making its final disposition based on the petition, the court is:

authorized to order the [s]ubject to receive [a]ssisted [o]utpatient [t]reatment for a period not to exceed six months. In its order, the court shall state the [a]ssisted [o]utpatient [t]reatment that the [s]ubject is to receive. A court may order the [s]ubject to self-administer psychotropic drugs or accept the administration of such drugs by an authorized professional as part of an assisted outpatient treatment program. The order may specify the type and dosage range of such psychotropic drugs and shall be effective for the duration of the [s]ubject's assisted outpatient treatment. Assisted outpatient treatment may include one or more of the following categories:

(1) medication;

(2) periodic blood tests or urinalysis as medically necessary to determine compliance with prescribed medications;

(3) individual or group therapy;

(4) day or partial day programming activities;

(5) educational and vocational training or activities;

(6) alcohol or substance abuse treatment and counseling and periodic tests for the presence of alcohol or illegal drugs for persons with a history of alcohol or substance abuse;

(7) supervision of living arrangements; or

(8) any other services prescribed to treat the person's mental illness and to either assist the person in living and functioning in the community or to help prevent a relapse that may reasonably be predicted to result in suicide or the need for hospitalization; however, electro-convulsive therapy shall never be a form of treatment allowed by this ordinance.

Id. § 8(B).

{9} If an individual refuses to comply...

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