Throughout her public service career as the New Mexico Cabinet Secretary for Health, Bernalillo County Commissioner, United State Congresswoman and now Governor, Michelle Lujan Grisham has paid special attention to the state’s mental health care system. One of the biggest accomplishments Governor Lujan Grisham can be proud of is the fact that she cleaned up the absolute mess and destruction of the state’s mental health care system brought on by the vindictiveness and incompetence of her predecessor Governor Susana Martinez.
GOVERNOR SUSANA “CRUELA” MARTINEZ
The cruelest thing that Governor Susan Martinez did as Governor was order an “audit” of mental health services by nonprofits in New Mexico which devastated New Mexico’s behavioral health care system. At the time, more than 160,000 New Mexicans received behavioral health services, with most of those services funded by Medicaid.
In June 2013, under the direction of Governor Martinez, her Human Services Department cut off Medicaid funding to 15 behavioral health nonprofits operating in New Mexico. The Martinez Administration said that the outside audit showed more than $36 million in overbilling, as well as mismanagement and possible fraud. The Martinez Human Services Department agency brought in 5 Arizona providers to take over.
In early 2016, at least 13 of the 15 nonprofits that were shut down were exonerated of fraud by New Mexico Attorney General Hector Balderas. Even though AG Balderas found no fraud and cleared the nonprofits of fraud the damage had been done to the nonprofits and many just went out of business
Three of the five Arizona providers brought in by Governor Susana Martinez’s administration in 2013 to replace the New Mexico nonprofits pulled up stakes in the state and the mental health system as yet to fully recover.
Governor Michelle Lujan Grisham was left with the task of restoring the states mental health care system and including settling all the civil lawsuits brought on by the Martínez Administration’s nefarious conduct.
GOVERNOR MLG SUGGESTS OPTIONS FOR MANDATORY TREATMENT
On September 30, during the first debate between Democrat Governor Michelle Lujan Grisham and TV Weatherman personality Republican Mark Ronchetti both found common ground on the issue of the homeless. Both said they would crack down on certain activities while expanding services to those willing to utilize them.
Governor Lujan Grisham said the state was working to expand substance abuse treatment programs in the state but pointed out some homeless reject treatment options. Lujan Grisham had this to say about those homeless who refuse treatment options:
“We’re going to need to do a little tough love and that’s going to mean probably more options for mandatory treatment. … I plan to propose in the next legislative session restrictions on panhandling and trespass for this population.”
The 2023 New Mexico 60 day legislative began on January 17 and came to an abrupt end on March 18 at 12 noon. No legislation was introduced restricting panhandling and trespassing by the unhouse nor mandatory treatment.
2024 LEGILATURE PRIORITIES
Friday, April 7, was the last day Governor Michelle Lujan Grisham had to sign into law or veto legislation enacted by the 2023 New Mexico legislature. By the end of the day, the Governor had veto 36 major legislative initiatives including most of the massive tax reform and reduction package but leaving intact rebates.
At the conclusion of the bill signing the Governor took the opportunity to discuss crime and gun measures for the 2024 legislative session. The governor also said she wants to explore proposals that would require people who need behavioral health care to enter treatment. She said the civil commitment concept may not be scheduled for next year’s session, given the legal complexity. The Governor said this:
“We’re going to have to revisit, I believe, appropriate placements and potential temporary commitments for folks who have significant behavioral health issues and also drug addictions. … The due process requirements are critical, but they can also blindly get in the way of getting people the care and treatment they need.”
HOMELESS SUFFERING MENTAL ILLNESS AND DRUG ADDICTION
Each year the “Point in Time” (PIT) survey is conducted to determine how many people experience homelessness and to learn more about their specific needs. The PIT count is done in communities across the state. The PIT count is the official number of homeless reported by communities to the federal Department of Housing and Urban Development (HUD) to secure federal funding.
According to the 2022 PIT annual report, there were 1,567 sheltered and unsheltered homeless people living in Albuquerque. Of the 1,567 homeless in Albuquerque, 30.19% of the homeless self-reported as having a serious mental illness and 25.5% self-reported as substance abusers. There is an overlap with homeless suffering both mental illness and substance abuse. In other words, a whopping 55.69% combined total of those surveyed self-reported as having a serious mental illness or were substance abusers.
The 2022 Point In Time Report provides what it referred to “balance of the state” statistics where the Albuquerque’s homeless numbers were excluded. The total estimated number of households experiencing homelessness in Balance of State on January 31, 2022 were reported are as follows:
Totals of HOUSEHOLDS with one child, without children and with only children:
Emergency Shelters: 574
Transitional Housing: 70
Of the 391 unsheltered, 43% were identified as adults with serious mental illness and 40% were identified as adults with substance use disorders or a staggering 83% combined figure.
The PIT report is 40 pages long and includes graphs and pie charts outlining the statistics reported. You can review the entire report at this link:
EXISTING SPECIALTY COURTS TO DEAL WITH DRUG ADDICTION, MENTAL ILLNESS AND HOMELSS
There are two existing “Specialty Courts” that a exist to deal with the drug addicted, the mentally ill and with the homeless. Those specialty courts are the Metropolitan Court’s Outreach Court and the “Metro Community Veterans” court.
METROPOLITAN COURT’S OUTREACH COURT
A number of years ago, the Bernalillo Court Metropolitan Court established the specialty court known as “Drug Court” that dealt with those charged with misdemeanors and who suffered from drug addiction. A few years later, the Drug Court evolved into what is now the “Metro Outreach Court.” The Outreach Court program is a collaborative effort between the Bernalillo County Metropolitan Court, the Office of the District Attorney, the Law Offices of the Public Defender, the Private Defense Bar, the Bernalillo County Attorney’s Office and community providers. The court follows the American Bar Association’s (ABA) seven guiding principles for Homeless Courts and is modeled after the San Diego Homeless Court.
The Metro Court Outreach Court provides the following description of the court and how it operates:
“The Court model is based around local community service providers being the gateway for participants to enter into programs voluntarily. Outreach Court is a specialty court program aimed at a segment of the population that has limited means of complying with conditions of the court, and faces challenges in obtaining legal representation. As a result, misdemeanor charges are often ignored until the defendant is incarcerated.
Outreach Court is unique from all other specialty courts as it is designed to work with individuals already engaged with treatment providers and give them an opportunity to resolve outstanding misdemeanor cases and warrants. This is accomplished by collaborating with community providers that are already providing services to these individuals.
Outreach Court provides a progressive diversionary program, allowing alternative resolutions in lieu of custody, fines, and fees for most misdemeanor charges. Participants may engage in life skills activities, substance abuse group meetings, literacy classes, and training, or search for employment, counseling, and programming aimed at improving their situations under the guidance of their community provider. The court acknowledges these endeavors in order to satisfy the courts’ requirements.
The prospective participants are referred to court staff to determine eligibility by their community advocate. If approved for participation, court staff will notify all involved parties. The participant will work with their client advocate at their chosen program to design a plan to move towards self-sufficiency prior to appearing in court.
This initiative shows a participant’s willingness to seek justice and to reconcile their past by their continued efforts to reclaim their future. Providers will write letters of advocacy on behalf of the participant and their efforts in the program. This is symbolic of the relationship between the client and the program, and outlines their accomplishments, providing the court with insight into their efforts. The court will review the letter of advocacy and determine the graduation time of the participant to be held at a community provider’s location.
Outreach court enables homeless and precariously housed individuals who are actively engaged in the program to address their outstanding legal obligations, freeing them to reclaim their lives and return to the community as valued members.”
METRO “COMMUNITY VETERANS” COURT
In 2012, Bernalillo County Metropolitan Court partnered with the Department of Veterans Affairs and the Albuquerque Veteran’s Medical Center to implement a Veterans Program.
The Veteran’s Court web page provides the following description of the court and how it operates
“A team of criminal justice, treatment, and Veteran’s Affairs professionals were assembled that meet on a monthly basis to discuss Veteran defendants in Bernalillo County who were facing criminal charges or were struggling to meet their probation requirements.
The team soon learned first-hand how partnering with the VA and Veteran community resources was necessary in the effort to break down barriers and improve the identification and meeting the specialized needs of Veterans.
The Community Veterans Court began admitting participants in May of 2016. … [This] Court leads a multidisciplinary team consisting of two probation officers, an assistant district attorney, a public defender, and the Veterans Justice Outreach Coordinator from the New Mexico Veterans Administration Health Care System. To be eligible, defendants must be veterans of military service from any era regardless of discharge status, in the National Guard, or in the Reserves. Additionally, they must have been charged with a misdemeanor in Bernalillo County and volunteer to join the Court. Treatment services for any substance use disorder or mental illness, such as PTSD, are obtained primarily from the Veterans Administration Hospital or local Veterans Clinic.
Participants meet with the judge for status hearings one or more times per month, undergo frequent and random drug and alcohol testing, meet with an assigned probation officer, engage satisfactorily in treatment, and satisfy other conditions of the Court. Each participant is paired with a mentor, who is also a veteran. The unique camaraderie of the veteran’s group is a vital component in each participant’s recovery.
VETERANS COURT ELIGIBILITY CRITERIA
The Veterans Court has the following 6 eligibility criteria for participant:
- 18 years of age or over
2. Charged with a misdemeanor offense in Bernalillo County
3. Must have served in the U.S. Armed Forces or the corresponding reserve branches and/or members of the National Guard. Less than honorable discharges are reviewed on a case by case basis
4. Eligibility for CVC is not determined by eligibility for benefits from the Veterans Administration
5. An identified treatment need/issue substantially related to the offense
6. Consent of the prosecuting authority for pre-plea referral to the CVC or post plea if a presumptive commitment to prison/ jail exists.
Acceptance in the program is contingent upon meeting the full eligibility criteria of the program and approval of the CVC Presiding Judge.
NEW MEXICO STATUTORY LAW ON CIVIL COMMITMENTS FOR MENTALLY ILL AND DRUG ADDICTED
Governor Michelle Lujan Grisham was absolutely correct when she had this to say on April 7 about New Mexico’s mental health commitment process:
“The due process requirements are critical, but they can also blindly get in the way of getting people the care and treatment they need.”
There are complicated state laws on the books that deal with when and under what circumstances formal civil commitment hearings can be initiated for 3-day, 7-day and even 30-day observation and diagnostic evaluations for the mentally ill and the drug addicted. Such processes and procedures can be utilized to deal with the homeless who are drug addicted or who suffer from mental illness and to ensure that they get the medical treatment and counselling services they need.
The New Mexico laws dealing with mental illness commitment hearings are very technical reading for a layperson but do provide a succinct outline of how the process works. For that reasons the statutes are quoted herein but have been heavily edited with deletions to assist the reader.
NM Statute §43-1-1 (2019)
It is Chapter 43 of the New Mexico Statutes that deals with mental illness commitment procedures and mental health evaluations of criminal defendants and to provide court ordered treatment.
NM Stat § 43-1-1 (2019) provides in part as follows:
Whenever a district court finds it necessary to obtain an evaluation of the mental condition of a defendant in a criminal case, the court shall order an evaluation from a qualified professional available to the local facilities of the court or from a qualified professional at a local mental health center designated by the secretary of health. …
[The following civil commitment procedures are to be followed:]
The Secretary of Health shall arrange for a qualified professional furnished by the state to visit the defendant in local facilities available to the court or shall designate suitable available facilities. If the secretary of health designates a local mental health center or a state facility for the defendant’s evaluation within forty-eight hours of service of the evaluation order, the secretary of health shall notify the court of such designation.
If the Secretary of Health elects to have the defendant retained at the district court’s local facilities, the qualified professional furnished by the state shall visit the local facilities not later than two weeks from the time of service of the court’s evaluation order upon the secretary of health … .
If the Secretary of Health elects to have the defendant transported to the facilities designated by the Secretary of Health for the purpose of evaluation, the evaluation shall be commenced as soon as possible after the admission of the defendant to the facility, but, in no event, shall the evaluation be commenced later than seventy-two hours after the admission.
The defendant, at the conclusion of the evaluation, shall be returned by the county sheriff to the local facilities of the court upon not less than three days’ notice. After the evaluation is completed, the qualified professional furnished by the state shall be available for deposition to declare his findings. The usual rules of evidence governing the use and admissibility of the deposition shall prevail.
Documents reasonably required by the secretary of health to show the medical and forensic history of the defendant shall be furnished by the court when required.
After an evaluation and upon reasonable notice, the district court may commit a dangerous defendant charged with a felony … or may dismiss the charges without prejudice and refer the defendant to the district attorney for possible initiation of proceedings under the Mental Health and Developmental Disabilities Code.
A defendant so committed under the Mental Health and Developmental Disabilities Code shall be treated as any other patient committed involuntarily.
Whenever the Secretary of Health determines that he does not have the ability to meet the medical needs of a defendant committed … the secretary or his designee shall serve upon the district court and the parties a written certification of the lack of ability to meet the medical needs of the defendant.
The court shall set a hearing upon the certification within ten days of its filing and shall, after the hearing, make a determination regarding disposition of the criminal case.
When deemed by the Secretary of Health to be medically appropriate, a dangerous defendant committed pursuant … may be returned by the county sheriff to the custody of the court upon not less than three days’ notice. The secretary shall provide written notification to the court and parties within three days of the defendant’s discharge. … .”
NM STATUTE § 43-1-11 (2020)
In 2020, the New Mexico Legislature enacted 43-1-11 providing for and outlining a process for the civil commitment of adults for mental health evaluations and to provide medical help.
NM Stat § 43-1-11 (2020) provides in part as follows:
“ Every adult client involuntarily admitted to an evaluation facility … has the right to a hearing within seven days of admission unless waived after consultation with counsel.
[The following hearing process is to be followed:]
If a physician or evaluation facility decides to seek commitment of the client for evaluation and treatment, a petition shall be filed with the court within 5 days of admission requesting the commitment.
The petition shall include a description of the specific behavior or symptoms of the client that evidence a likelihood of serious harm to the client or others and shall include an initial screening report by the evaluating physician individually or with the assistance of a mental health professional or, if a physician is not available, by a mental health professional acceptable to the court.
The petition shall list the prospective witnesses for commitment and a summary of the matters to which they will testify. … .
At the hearing, the client shall be represented by counsel and shall have the right to present evidence on the client’s behalf, including testimony by an independent mental health professional of the client’s own choosing, to cross-examine witnesses and to be present at the hearing.
A court-appointed guardian for an adult involved in an involuntary commitment proceeding shall have automatic standing [or right] to appear at all stages of the proceeding … .
The court shall include in its findings the guardian’s opinion regarding the need for involuntary treatment … .
Upon completion of the hearing, the court may order a commitment for evaluation and treatment not to exceed thirty days if the court finds by clear and convincing evidence that:
(1) as a result of a mental disorder, the client presents a likelihood of serious harm to the client’s own self or others;
(2) the client needs and is likely to benefit from the proposed treatment; and
(3) the proposed commitment is consistent with the treatment needs of the client and with the least drastic means principle.
Once the court has made the findings set forth … , the court shall hear further evidence as to whether the client is capable of informed consent. If the court determines that the client is incapable of informed consent, the court shall appoint for the client a treatment guardian … .
[ACTION BY THE DISTRICT ATTORNEY]
An interested person who reasonably believes that an adult is suffering from a mental disorder and presents a likelihood of serious harm to the adult’s own self or others, but does not require emergency care, may request the district attorney to investigate and determine whether reasonable grounds exist to commit the adult for a thirty-day period of evaluation and treatment.
The applicant may present to the district attorney any medical reports or other evidence immediately available to the applicant but shall not be required to obtain a medical report or other particular evidence in order to make a petition.
The district attorney shall act on the petition within seventy-two hours. If the district attorney determines that reasonable grounds exist to commit the adult, the district attorney may petition the court for a hearing.
The court may issue a summons to the proposed client to appear at the time designated for a hearing, which shall be not less than five days from the date the petition is served.
If the proposed client is summoned and fails to appear at the proposed time and upon a finding of the court that the proposed client has failed to appear, or appears without having been evaluated, the court may order the proposed client to be detained for evaluation … .”
COMMENTARY AND ANALYSIS
A glaring reality is that much more must be done with the initiation of civil commitment hearings to deal with the mentally ill and the drug addicted who are homeless and to ensure that they get the medical and mental health treatment and counselling services they desperately need. In Albuquerque, both the City Attorney and the Bernalillo County District Attorney can and should dedicate resources in the form of attorneys that will assume the filing of civil mental health commitment pleadings for such hearings as prescribed by law. The New Mexico Public Defender should also be called upon by the Court to provide a defense where and when needed.
A greater emphasis must be made to get those who are homeless and the drug addicted who may or may not be in the criminal justice system the medical care and assistance they need without criminal prosecution and warehousing in the county jail. There is a critical need for a civil mental health commitment court for the homeless suffering from mental illness or drug addiction and who pose a threat to themselves, their family and the general public. There is an even bigger need for the construction and staffing of a mental health facility or hospital to provide the services.
CREATE “BEHAVIORAL HEALTH TREATMENT COURT”
One single specialty “Behavioral Health Treatment Court” under the direct supervision of the New Mexico Supreme Court should and can be created as an outreach and treatment court for the drug addicted and the mentally ill with an emphasis on the homeless. The Metropolitan Court’s “Outreach Court” and Metro “Community Veterans” Court should be consolidated with a District Court Judge appointed by the Supreme Court designated to organize and preside over the consolidated court. The consolidated court would deal exclusively with mental health commitment hearings with the help of Metro Judges and magistrate judges.
Both the Albuquerque City Attorney and the Bernalillo County District Attorney could dedicate resources in the form of attorneys that will assume the filing of civil mental health commitment hearings as allowed by law. A program of cross deputization of City Attorney’s by the Bernalillo County District Attorney to allow them to file civil mental health commitment petitions in State District Court in misdemeanor and felony cases needs to be created. The New Mexico Public Defender must be called upon by the Courts to provide a defense and ensure due process of law.
BUILD AND STAFF MENTAL HEALTH AND DRUG TREATMENT FACILITY
As it stands now, there exists less than adequate facilities where patients can be referred to for civil mental health commitments and treatment. There is glaring and absolute need for a behavioral health hospital and drug rehabilitation treatment facility. New Mexico is currently experiencing historical surplus revenues and this past legislative session the legislature had an astonishing $3.6 Billion in surplus revenue. It likely the state will continue to see historic surpluses. Now is the time to dedicate funding for the construction of behavioral health hospital and drug rehabilitation treatment facility the courts can rely upon for referrals.
If Governor Michelle Lujan Grisham is truly concerned about making sure those who are unhoused and who are suffering from drug addiction and mental health issues, the 2024 New Mexico legislative session is the ideal time to finally do something about. It is the 30 day legislative session which by law deals with appropriations and budgetary matters. The legislative agenda is limited to what is called the “Governor’s Call” and only legislation she places on the agenda can be can be considered. The Governor should place on the call the creation of a “Behavioral Health And Addiction Treatment Court” and the construction of a mental health treatment hospital for civil commitments to complete the task of rebuilding the state’s mental health system destroyed by her predecessor.