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NEW MEXICO

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24-21-3. Genetic analysis prohibited without informed consent ; exceptions. (1998)

A.     Except as provided in Subsection C of this section, no person shall obtain genetic information or samples for genetic analysis from a person without first obtaining informed and written consent from the person or the person's authorized representative.

B.     Except as provided in Subsection C of this section, genetic analysis of a person or collection, retention, transmission or use of genetic information without the informed and written consent of the person or the person's authorized representative is prohibited.

C.     A person's DNA, genetic information or the results of genetic analysis may be obtained, retained, transmitted or used without the person's written and informed consent pursuant to federal or state law or regulations only:
(1)     to identify a person in the course of a criminal investigation by a law enforcement gency;
(2)     if the person has been convicted of a felony, for purposes of maintaining a DNA database for law enforcement purposes;
(3)     to identify deceased persons;
(4)     to establish parental identity;
(5)     to screen newborns;
(6)     if the DNA, genetic information or results of genetic analysis are not identified with the person or person's family members;
(7)    by a court for determination of damage awards pursuant to the Genetic Information Privacy Act [ 24-21-1 to 24-21-7 NMSA 1978];
(8)     by medical repositories or registries;  
(9)     for the purpose of medical or scientific research and education, including retention of gene products, genetic information or genetic analysis if the identity of the person or person's family members is not disclosed; or
(10)     for the purpose of emergency medical treatment consistent with applicable law.

D.     Actions of an insurer and third parties dealing with an insurer in the ordinary course of conducting and administering the business of life, disability income or long-term care insurance are exempt from the provisions of this section if the use of genetic analysis or genetic information for underwriting purposes is based on sound actuarial principles or related to actual or reasonably anticipated experience. However, before or at the time of collecting genetic information for use in conducting and administering the business of life, disability income or long-term care insurance, the insurer shall notify in writing an applicant for insurance or the insured that the information may be used, transmitted or retained solely for the purpose of conducting and administering the business of life, disability income or long-term care insurance.

E.     Nothing in Paragraph (5), (6), (8), (9) or (10) of Subsection C of Section 3 [ 24-21-3 NMSA 1978] of the Genetic Information Privacy Act authorizes obtaining, retaining, transmitting or using a person's DNA, genetic information or the results of genetic analysis if the person, his authorized representative or guardian, or the parent or guardian of a minor child, objects on the basis of religious tenets or practices.

CHAPTER 11 Medical Negligence

24-2B-5. Informed consent not required. (2003)
Informed consent for testing is not required and the provisions of Section 24-2B-2 NMSA 1978 do not apply for:  
A.     a health care provider or health facility performing a test on the donor or recipient when the health care provider or health facility procures, processes, distributes or uses a human body part, including tissue and blood or blood products, donated for a purpose specified under the Uniform Anatomical Gift Act [ 24-6A-1 NMSA 1978] or for transplant recipients or semen provided for the purpose of artificial insemination and such test is necessary to assure medical acceptability of a recipient or such gift or semen for the purposes intended;  
B.     the performance of a test in bona fide medical emergencies when the subject of the test is unable to grant or withhold consent and the test results are necessary for medical diagnostic purposes to provide appropriate emergency care or treatment, except that post-test counseling or referral for counseling shall nonetheless be required when the individual is able to receive that post-test counseling. Necessary treatment shall not be withheld pending test results;  
C.     the performance of a test for the purpose of research if the testing is performed in a manner by which the identity of the test subject is not known and may not be retrieved by the researcher;  
D.     the performance of a test done in a setting where the identity of the test subject is not known, such as in public health testing programs and sexually transmitted disease clinics; or  
E. the performance of a prenatal test to determine if the human immunodeficiency virus or its antigen is present in a pregnant woman; provided that the woman, or her authorized representative, after having been informed of the option to decline the human immunodeficiency virus test, may choose to not have the human immunodeficiency virus test performed as a part of the routine prenatal testing if she or her authorized representative provides a written statement as follows:  "I am aware that a test to identify the human immunodeficiency virus or its antigen or antibody is a part of routine prenatal testing. However, I voluntarily and knowingly choose to not have the human immunodeficiency virus test performed. (Name of patient or authorized representative, signature and date).".

24-9A-2. Pregnant woman. (1979)
A.     No woman, known to be pregnant according to generally accepted medical standards, shall be involved as a subject in any clinical research activity unless:  
(1)     the purpose of the activity is to meet the health needs of the mother or the fetus and the fetus will be placed at risk only to the minimum extent necessary to meet such needs; or (2)     there is no significant risk to the fetus.  
B.     An activity permitted under Subsection A of this section may be conducted only if the mother is legally competent and has given her informed consent after having been fully informed regarding possible impact on the fetus.

32A-6-14. Treatment and habilitation of children; liability. (1995)

43-1-15. Consent to treatment; adult clients. (1999)

43-1-11. Commitment of adults for thirty-day period. (1989)
A.     Every adult client involuntarily admitted to an evaluation facility pursuant to Section 43-1-10 NMSA 1978 has the right to a hearing within seven days of admission unless waived after consultation with counsel. If the division, physician or evaluation facility decides to seek commitment of the client for evaluation and treatment, a petition shall be filed with the court within five days of admission requesting the commitment. The petition shall include a description of the specific behavior or symptoms of the client which 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. Copies of the petition shall be served on the client and the client's attorney.
B.     At the hearing, the client shall be represented by counsel and shall have the right to present evidence on his behalf, including testimony by an independent mental health professional of his own choosing, to cross-examine witnesses and to be present at the hearing. The presence of the client may be waived upon a showing to the court that the client knowingly and voluntarily waives his right to be present. A complete record of all proceedings shall be made.
C.     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 himself 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.
D.     Once the court has made the findings set forth in Subsection C of this section, 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 who shall have only those powers enumerated in Section 43-1-15 NMSA 1978.
E.     Any interested person who reasonably believes that an adult is suffering from a mental disorder and presents a likelihood of serious harm to himself 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 him, but shall not be required to obtain a medical report or other particular evidence in order to make such 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, he 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 as provided for in Subsection C of Section 43-1-10 NMSA 1978.
F.     Any hearing provided for pursuant to Subsection E of this section shall be conducted in conformance with the requirements of Subsection B of this section.

24-2B-5.2. Informed consent not required; testing of persons formally charged for allegedly committing certain criminal offenses; responsibility to administer and pay for test.

13-1104A. Informed consent .
A doctor has a duty to obtain the patient's informed consent [, or the patient's representative's informed consent ,] to [treatment] [an operation]. For consent to be valid, it must be based upon information which a reasonably prudent patient would need to know in deciding whether to undergo the [treatment] [operation].

DIRECTIONS FOR USE
This instruction should be given where the patient claims lack of informed consent . See UJI 13-1109A for an instruction relating to lack of consent to the treatment rendered.
UJI 13-1104B must be given with this instruction. UJI 13-1104C should be given with this instruction where appropriate. Where the patient is a minor or is incapacitated, the bracketed reference to the patient's representative should be included in the instruction.
UJI 13-1116A and 13-1116B address the element of proximate causation that is a necessary part of a claim of lack of informed consent . One of those instructions should be given with this instruction.

24-21-5. Rights of retention. (1998)
A. Unless otherwise authorized by Subsection C of Section 3 [ 24-21-3 NMSA 1978] of the Genetic Information Privacy Act, no person shall retain a person's genetic information, gene products or samples for genetic analysis without first obtaining informed and written consent from the person or the person's authorized representative. This subsection does not affect the status of original medical records of patients, and the rules of confidentiality and accessibility applicable to the records continue in force.  B. A person's genetic information or samples for genetic analysis shall be destroyed promptly upon the specific request by that person or that person's authorized representative unless:  (1) retention is necessary for the purposes of a criminal or death investigation or a criminal or juvenile proceeding;  (2) retention is authorized by order of a court of competent jurisdiction;  (3) retention is authorized under a research protocol approved by an institution review board pursuant to federal law or a medical registry or repository authorized by state or federal law; or  (4) the genetic information or samples for genetic analysis have been obtained pursuant to Subsection C of Section 3 of the Genetic Information Privacy Act.  C. Actions of an insurer and third parties dealing with an insurer in the ordinary course of conducting and administering the business of life, disability income or long-term care insurance are exempt from the provisions of this section. However, before or at the time of collecting genetic information for use in conducting and administering the business of life, disability income or long-term care insurance, the insurer shall notify in writing an applicant for insurance or the insured that the information may be used, transmitted or retained solely for the purpose of conducting and administering the business of life, disability income or long-term care insurance.  D. Nothing in Paragraph (3) or (4) of Subsection B of Section 5 [ 24-21-5 NMSA 1978] of the Genetic Information Privacy Act authorizes retention of a person's genetic information or samples for genetic analysis if the person, his authorized representative or guardian, or the parent or guardian of a minor child, objects on the basis of religious tenets or practices.

ARTICLE 2B Human Immunodeficiency Virus Tests

12-10A-8. Isolation or quarantine authorized; protection of a person isolated or quarantined.(2003)

24-2B-3. Substituted consent . (1989)
Informed consent shall be obtained from a legal guardian or other person authorized by law when the person is not competent. A minor shall have the capacity to give informed consent to have the human immunodeficiency virus test performed on himself.

LR6-Form 3.03. Ordered parenting plan for children of separated parents.



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