1. A. Consent to the authorization for the installation and use of a monitoring device may be given only by a patient or surrogate.

   (1) If a patient has capacity to consent, only the patient may do so, notwithstanding the terms of any durable power of attorney, advance health-care directive, or similar instrument.

   (2) If a patient does not have capacity to consent, only the patient’s surrogate may give consent. If there is a dispute among surrogates within the same priority class under the Uniform Health-Care Decisions Act, none of them can give consent.

   (3) A patient is presumed to have capacity to consent unless the patient has been determined to be incapacitated by a court of competent jurisdiction or by two qualified health-care professionals, one of whom shall be the primary physician, in accordance with the terms of the Uniform Health-Care Decisions Act.

2. B. Consent to the authorization for the installation and use of a monitoring device shall include a release of liability for the facility for a violation of the patient’s right to privacy insofar as the use of the monitoring device is concerned.
3. C. A patient or surrogate may reverse a choice to have or not have a monitoring device installed and used at any time, after notice to the facility on a form prescribed by the department.

[9.2.23.11 NMAC - N, 7/15/04]