A dispute centering on the legal rights of those held against their will because of alleged psychiatric concerns will go before the justices of New Hampshire Supreme Court Thursday.
The case involves a woman, identified only as Jane Doe, who alleges the state failed to provide her with a hearing in front of a judge within three days to contest her involuntary hospital admission, despite a state law that spells out the need for a timely hearing.
The Department of Health and Human Services, which is being represented by the New Hampshire Department of Justice, contends the three-day window for the hearing doesn’t begin until after the patient is transferred and admitted to a speciality psychiatric hospital, rather than when the patient is first brought to a local emergency room.
But with too few available beds at the state’s specialty hospitals to meet current demand, people in New Hampshire will often spend days, if not weeks, awaiting transfer.
A lower court judge sided with Jane Doe, ruling that the three-day clock begins tolling when the patient is first admitted to a hospital under an IEA, or Involuntary Emergency Admission petition, which alleges the person is a threat to themselves because of a mental health condition.
“That’s the essential debate between us and the commissioner,” said Gary Apfel, the attorney representing Jane Doe.
Apfel’s client was held inside Dartmouth Hitchcock’s emergency room for 17 days before she was transferred to New Hampshire Hospital, one of just a handful of specialty psychiatric facilities statewide. During that delay—a result of a long running statewide shortage of mental health treatment options—Doe was unable to contest her confinement, which she didn’t believe was warranted.
The state’s appeal before the Supreme Court doesn’t directly challenge Jane Doe’s release, but instead focuses on when the three-day window for the due process hearing begins.
A nearly decade-old problem, made worse by pandemic
Jane Doe’s situation isn’t unique: every day, people in mental health crisis, including children, are waiting inside New Hampshire emergency rooms for a bed to open at a specialty psychiatric hospital, also known as designated receiving facilities. The practice is so common it has a name: emergency room boarding.
ER boarding first emerged in New Hampshire in 2012, when demand for mental health services began outpacing the number of inpatient psychiatric beds.
“It’s pretty inhumane, to put it bluntly, and I think that even under the best of circumstances, an emergency department is not a safe place, physically or mentally, for a person experiencing a mental health crisis,” said Ken Norton, executive director of the National Alliance on Mental Illness - New Hampshire, which filed an amicus brief in support of Jane Doe’s case.
The number of people boarded in the state has ebbed and flowed over the years, but during the pandemic it peaked, when on a single day in February more than 80 residents sat in ERs waiting to get transferred. That figure includes dozens of children.
Civil liberties groups have challenged this practice in the past, including a 2018 federal class action suit brought by the ACLU of New Hampshire. In that case, which remains active on appeal, a federal judge issued a preliminary order siding with the plaintiffs.
“It really, to me, runs afoul of the core bedrock principle of the United States Constitution, which is if your liberty is going to be taken away from you, you should be provided due process,” said Gilles Bissonnette, the ACLU of New Hampshire’s legal director, who also filed an amicus brief in support of Jane Doe. “In New Hampshire, there is none.”
State officials declined to comment for this story, citing the ongoing litigation.
In February, state Health Commissioner Lori Shibonnette announced the state would add an additional ten inpatient beds for children at the state psychiatric facility in Concord, citing the number of minors waiting inside of emergency rooms. Shibonnette added, however, that the bottleneck isn’t just at psychiatric hospitals, but also at the community level.
“We need different types of beds: supportive housing beds, transitional housing beds, affordable housing beds. Those are the types of beds we need. Not necessarily in a hospital,” said Shibonnette during a press conference.
But until those are in place in the state, people will likely continue languishing in emergency rooms: a place just about everyone agrees is the worst location someone struggling with mental health should spend time.
“No caring person should want to see another member of our community treated that way, especially since tomorrow it could be your aunt, or your grandfather or your nephew,” said Apfel. “That’s something that everybody needs to be concerned about.”
