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

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

   (2) If a roommate does not have capacity to consent, only the roommate’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 roommate is presumed to have capacity to consent unless the roommate 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 roommate’s right to privacy insofar as the use of the monitoring device is concerned.
3. C. A roommate or the roommate’s surrogate may condition or limit consent on the use, including the time of operation, direction, focus or volume, of a monitoring device.
4. D. A roommate or the roommate’s surrogate may reverse a choice to give, not give, or limit consent at any time, after notice to the facility on a form prescribed by the department.
5. E. If a monitoring device is being used in the room of a patient and a new roommate, who has not yet consented to the use of the monitoring device, moves into the room, monitoring shall cease until the new roommate, or the new roommate’s surrogate, has consented in accordance with this section.

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