NM governor shares draft proposal for forced mental health treatment

The New Mexico Legislature on June 26, 2024 in Santa Fe. (Photo by Austin Fisher / Source NM)

More details are emerging about the changes to state law being proposed by New Mexico’s governor for a special legislative session planned in July.

Two high-ranking members of Gov. Michelle Lujan Grisham’s staff discussed five legislative proposals with a panel of lawmakers from the House of Representative and the Senate on Wednesday afternoon.

“What the governor is looking to do with the bills I’m going to discuss, first, is to really take some small, necessary steps to really help those people who are either an extreme danger to themselves, or an extreme danger to others,” the governor’s general counsel Holly Agajanian said.

Sen. Peter Wirth (D-Santa Fe) said the governor’s previously proposed overhaul of “assisted outpatient treatment” is no longer part of her agenda in July. What will be heard then will be a “pared down” version, Agajanian said. That bigger rewrite would have expanded the list of people who could petition the courts for a civil commitment.

“The governor hears what you’re saying. It’s too much to do in a special session,” she told him. “I think what we’re going to do instead is just focus on the people that are more marginal at this juncture.”

Agajanian and Benjamin Baker, the governor’s senior public safety advisor, presented the discussion drafts to the legislative Courts, Corrections and Justice Committee.

The final proposals could significantly change between now and when the special session begins on July 18 in Santa Fe.

The “assisted outpatient treatment” proposal that the committee heard on Wednesday would require judges in some circumstances to advise a local district attorney in New Mexico to consider starting the process of involuntary commitment in a locked mental health facility.

Under the nine-page draft shared with the committee, the court could confine someone for up to a week whenever they determine that person is not competent to participate in their own legal defense, they aren’t dangerous, and the judge dismisses the criminal case.

The draft also proposes that if any of the criminal charges are a serious violent offense, or involve a gun, or if the defendant has been found incompetent to stand trial at least twice in the past year, a judge could put that person into a locked mental health facility for up to a week.

Agajanian said the draft bill is trying to solve the problem of cases getting dismissed due to defendants being incompetent to stand trial.

“You have certain people who cycle through, and through, and through, who are very likely either going to get worse and harm themselves in one way or another, or harm someone else,” she said.

The proposed changes to the state law are meant to allow for the assessment of those people “to see whether or not they do need to be committed for separate mental health treatment,” she said.

“Because obviously there is something going on, and the crimes they’re committing aren’t violent enough or dangerous enough to keep them in a facility until they can establish competency,” Agajanian said.

Another related proposal would change the legal definitions of “harm to self” and “harm to others” in the state law that governs commitment in a locked mental health facility.

Sen. Katy Duhigg (D-Albuquerque) said she read the proposed definitions and thought, “Boy, this would apply to half the legislators I know.”

“This is really, really broad language,” she said. “It’s going to sweep up so many people who I don’t think it would be appropriate for them to get swept up in this.”

Duhigg asked about the meaning of the term “extreme destruction of property” used in the draft, and pointed out it doesn’t specify property of others.

Agajanian said “that’s a great distinction that we could certainly add.”

“Historically, this language is meant to pull in people like arsonists,” Agajanian said. “You could set your own house on fire. Narrowing it to the destruction of property of another might fix one problem and cause another, but I’m certainly open to conversation about that.”

Winter Torres, CEO and founder of the New Mexico Eviction Prevention and Diversion Program, attended most of Wednesday’s hearing in person and gave public comment at the end of the day.

“I don’t think this session is about public safety, I think it’s about criminalizing homelessness,” Torres said. “That is the primary target of the majority of the bills that are introduced.”

There hasn’t been community interaction or public consultation about that, Torres said.

“We know the answer to folks who churn: it’s permanent supportive housing,” she said. “We know what the evidence is: we know criminalizing doesn’t work.”

Instead, state officials should be using Medicaid funding to pay for housing, she said.

“Housing is a primary social determinant of health, and locking folks up is not a treatment modality,” she said.

Peter Cubra, a retired attorney who helped dismantle the state-run institutions that held people with developmental disabilities in New Mexico, also gave public comment via Zoom. He asked the committee to “please slow this down.”

“What I heard today, in terms of changing the entire civil commitment statute, is more controversial and more impactful than things we have spent literally eight sessions trying to sort out with respect to forced treatment,” Cubra said. “It really would disserve every person with a disability in New Mexico for you to act, under these circumstances, so swiftly.”

In addition to harming people with disabilities who aren’t eagerly seeking treatment, if lawmakers were to enact the administration’s proposal, “there are hundreds of people begging for treatment who would not have access to the beds that they’re begging to get into.”

“Instead, we would be holding people against their will in a form of involuntary treatment which is almost never effective,” Cubra said. “Please slow this down and let the regular session address these issues.”

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