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Arguments Heard In Lawsuit Alleging Lack of Due Process for N.H. Mental Health Patients

Oral arguments were heard today, via video conference, in a federal civil rights lawsuit. It alleges the state of New Hampshire is failing to provide due process to people who are involuntarily committed for psychiatric treatment.

The lawsuit, filed by the ACLU-NH, targets a practice known as emergency room boarding that occurs when psychiatric patients deemed to be a danger to themselves or others are forced to wait in hospital emergency departments because of a waitlist for beds at the state psychiatric hospital and other state-designated facilities.

A ruling in the case could have major implications for the state’s mental health care system.

State law provides an opportunity for people being involuntarily admitted to argue before a judge that they should not be held against their will. Those hearings are supposed be held within three days of a patient’s involuntary emergency admission.

But because there is no current system to offer those hearings to patients inside emergency departments, patients are forced to wait until they are transferred to a state psychiatric facility to receive a hearing – a process that can take days or even weeks.

Held For 20 Days: How N.H.'s Shortage Of Mental Health Beds Erodes Patients' Rights

During that time, involuntarily admitted patients cannot leave the emergency department and they have no other means of legally contesting their detention.

This lawsuit, brought by the ACLU-NH on behalf of a group of people who have been detained in emergency departments, seeks a ruling that would force the state to offer probable cause hearings to patients within three days, even if they are still waiting inside an emergency department.

In a hearing conducted by Zoom video conference Thursday morning, U.S. District Court Judge Joseph DiClerico heard arguments on the state’s motion to dismiss the case. The state argues that the requirement for a hearing within three days does not begin until the patient reaches a state psychiatric facility, known in law as a “designated receiving facility.”

According to the state, hospitals across New Hampshire are making independent decisions to hold patients against their will and that any events that occur prior to an involuntarily admitted patient’s transfer to a “designated receiving facility” involves no action by the state.

“The patient is admitted to the [state’s mental health] system when they are actually physically admitted to a designated receiving facility or New Hampshire Hospital, not by operation of a certificate being completed,” argued Samuel Garland with the state Attorney General’s office on Thursday.

Judge DiClerico did not appear persuaded.

“If your interpretation is correct, that means that somebody who was found to be a danger to him or herself or others is at liberty to go. That simply doesn’t make any sense,” said DiClerico.

Attorney Aaron Curtis, arguing on behalf of the plaintiffs, said the completion of an involuntary emergency admissions certificate immediately places a patient into the state’s mental health system. Curtis noted that the state’s own website directs people to go to local emergency departments to begin an involuntary admission process. He also alleged the state is explicitly instructing hospitals to renew the involuntary emergency admission certificates every three days to continually reset the time limit for the probable cause hearing.

“The idea that this is just about the hospitals’ actions and doesn’t involve any action by the state is not accurate,” said Curtis.

Thursday’s hearing also included arguments from the New Hampshire Hospital Association, which has intervened in the lawsuit. Attorney Michael Ramsdell agreed with the plaintiffs that the state is responsible for patients as soon as an involuntary emergency admissions certificate is completed. He dismissed the state’s claim that emergency room doctors aren’t required to hold patients whom they believe are dangerous.

“It’s a matter of common sense if we’re going to be really candid about it,” said Ramsdell. “A physician can’t look at someone who has arrived at a hospital emergency room and say ‘you know what? You seem to be a danger to yourself or to someone else. Have a nice day.’”

Meanwhile, just hours after the conclusion of the virtual hearing, the New Hampshire chapter of the National Alliance on Mental Illness announced another important milestone in the years-long debate over this issue.

According to NAMI-NH, for the first time in eight years, the waitlist for beds at a state psychiatric facility reached zero in March.

NAMI-NH Director Ken Norton called it “a return to humane practice with immediate access to timely and effective treatment.”

According to Norton, the reduction in the waitlist, which once reached as high as 71, is due to the recent transfer of youth patients out of New Hampshire Hospital to Hampstead Hospital.

Some advocates have raised the concern that the state’s approach to solving the boarding crisis by creating more in-patient beds rather than more community based mental health resources risks running afoul of the New Hampshire Community Mental Health Agreement. That agreement, born out of a separate lawsuit, requires the state to provide more community-based mental health services to avoid unnecessarily institutionalizing mental health patients.

It’s unclear what impact, if any, the reduction in the waitlist will have on the ongoing federal lawsuit.

Jason Moon is a senior reporter and producer on the Document team. He has created longform narrative podcast series on topics ranging from unsolved murders, to presidential elections, to secret lists of police officers.
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