NM governor’s office continues forced treatment pitch to lawmakers, could return in full in 2025

The Seal of the State of New Mexico inside the Roundhouse on Jan. 10, 2024. (Photo by Anna Padilla for Source NM)

While New Mexico’s governor has made her forced mental health treatment proposal more palatable for lawmakers, it could still change before the special session in July, and it could come back in its original form next year.

The Courts, Corrections and Justice Committee invited Ellen Pinnes, an advocate with The Disability Coalition , and attorney Denali Wilson to talk about potential impacts on New Mexicans’ civil rights that could result from proposed changes in the law around mental health.

Pinnes said parts of her presentation had been made out of date by Wednesday morning’s news that the governor was paring down her proposal that originally sought to rewrite a 2016 law governing court-ordered mental health treatment.

“Some of what is in here is still good information, but some of it is no longer immediately on the table,” Pinnes said. “They may very well be on the table at a not so far future date.”

A spokesperson for Gov. Michelle Lujan Grisham said Thursday the governor will continue to have discussions with lawmakers about the “assisted outpatient treatment” bill between now and the special session.

Jodi McGinnis said there could be more changes to the proposal before then, and that the governor is still interested in her full proposal for the regular session in January.

The upcoming special session was formed to focus on public safety issues. Pinnes quoted from the governor’s announcement , which states the goal is to “reduce the danger and risk New Mexico communities face every day.”

And yet, the centerpiece of Lujan Grisham’s special session agenda was changes to “assisted outpatient treatment” law, Pinnes said.

“Although she’s narrowed down what she wants to do with the (assisted outpatient treatment) statute, she’s still focusing on people with mental illness for a large part of what’s going on here, which simply perpetuates the myth that people with mental illness are dangerous and that’s who committing crimes,” Pinnes said.

People with mental illness do commit crime, but they are far more likely to be victims of crime than perpetrators of it, she said.

New Mexico law already allows judges to exert extensive control over a person’s life using an “assisted outpatient treatment” order, Pinnes said, including supervising someone’s living arrangements, and ordering them to take medication even if it’s not right for them, for example.

‘Treatment outcomes are the most effective when engagement is voluntary’

Denali Wilson, a staff attorney with the Las Cruces office of the American Civil Liberties Union of New Mexico, said people will have good health outcomes when they get support in the communities where they live.

“The most effective interventions are those that return people to the community as early as possible, or prevent their removal at all,” Wilson said.

It is more difficult for people to engage or experience any positive outcomes if intervention happens later in the criminal process, she said.

“We know treatment outcomes are the most effective when engagement is voluntary,” Wilson said.

Involuntary mental health treatment may constitute discrimination under Section 504 of the Americans with Disabilities Act, Pinnes told lawmakers. “Be aware, you have this potential legal threat hanging over (assisted outpatient treatment).

Proponents also say “assisted outpatient treatment” is effective because a court orders it, what’s called the “black robe effect.” But Pinnes said there’s no existing research that empirically examines the phenomenon.

While a judge’s order might have some coercive effect, Pinnes said, “that’s not what makes the difference.” Connecting people to services, and making them feel supported and cared for, does make a difference, she said.

Proponents of “assisted outpatient treatment” also say it is needed because people with mental illness don’t recognize they’re sick, and must be forced into treatment because they won’t do it voluntarily, Pinnes said. “That is really fraught,” she said.

“Forced treatment is traumatizing,” she said. “People should get the services they’re eligible for without a court order.”

Potential for constitutional challenge

Depriving someone of their liberty by confining them or putting them into treatment against their will implicates their constitutional rights, Wilson said. Institutionalization or commitment to a hospital is a pretty significant deprivation of liberty, she said, and the government must justify that with a good reason.

“Whether its speech or bodily autonomy and the right to refuse treatment, a deprivation of rights by the government has to be justified by a compelling, nondiscriminatory, legitimate government interest,” Wilson said.

The day before, Lujan Grisham’s general counsel Holly Agajanian told the committee “states and legislators in particular have extreme latitude” in determining whether someone is dangerous to themselves or others.

On Thursday, Wilson said that’s not true.

In the area of constitutional law, the question of whether someone’s dangerous involves possibly taking away their freedom, and therefore must be subject to “strict constitutional scrutiny,” which is the highest standard of review courts use to evaluate the constitutionality of government discrimination.

“Strict constitutional scrutiny is the least amount of latitude you can have,” Wilson said. “And whatever latitude there is in crafting a definition, the constitutional standard is dangerousness. If your definition creeps outside that, and includes things not related to dangerousness, it’s not one that is going to pass muster.”

The pared down proposal the governor’s office released on Wednesday, Wilson said, would still “dramatically” expand the definition of dangerousness “in pretty much every way that you could create a parameter around that definition.”

“This creates the possibility of overbreadth or overreach, which is really where we’re concerned, and where something like this could invite significant litigation,” Wilson said.

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