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N.H. Court Rules 'ER Boarding' of People with Mental Health Crises Violates Law

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In a major victory for mental health advocates, the New Hampshire Supreme Court issued an opinion Tuesday that found the government is violating the due process rights of people in mental health crises as they await treatment in the state.

The case involved a woman identified only as Jane Doe, who argued the state failed to provide her with a court hearing to challenge her confinement within three days, as required by law. 

The Department of Health and Human Services, represented by the Attorney General’s office, countered that the three-day clock for a hearing doesn’t start until after the person is transferred to a specialty psychiatric hospital, and not while the person waits inside an emergency room for a bed to open up. In Jane Doe’s case, that wait lasted 17 days due to a shortage of beds statewide, during which time she was not afforded a court hearing. 

In their 18-page decision, the justices wrote that while the system is overburdened, leading to long wait times due to a shortage of beds, the statute, as written, spells out the need for a timely hearing for those who want to challenge their confinement.

“We do not opine as to how the defendant should comply with its statutorily-mandated duty as our system of government entrusts such decisions to our coordinate branches,” wrote the justices. “Of course, if the legislature disagrees with our interpretation, it is free to amend the statutory scheme as it sees fit within constitutional bounds.”

The state has struggled for years to provide enough in-patient psychiatric care, resulting in long wait times for treatment. The number of people--both adults and children--awaiting transfer to a psychiatric hospital has ebbed and flowed over the years, including a backlog of more than 80 residents during the pandemic.

The ruling was praised by NAMI-NH and the ACLU of New Hampshire, which each submitted briefings. 

“For far too long, a lack of community-based mental health treatment options has meant some people, including our clients, have been held without probable cause hearings for weeks in emergency rooms, without access to a state-appointed lawyer or an opportunity to timely contest their detention,” said Gilles Bissonnette, legal director for the ACLU of New Hampshire, which helped argue the case, in a statement. “It also means they have often been unable to return home to their families or jobs.”

ER boarding, as this practice was came to be called, first emerged in New Hampshire in 2012, when demand for mental health services began outpacing the number of inpatient psychiatric beds.

In 2018, the ACLU filed a class action suit in federal court accusing the government of violating statutory rights of people in mental health crises. The court issued a preliminary ruling in favor of the ACLU; the case is now on appeal.

In February of this year, state Health Commissioner Lori Shibinette said the state would immediately add an additional 10 inpatient beds for children at a state psychiatric facility in Concord. Shibinette said that the bottleneck for treatment beds wasn’t just a result of increased demand, but that there also continues to be a shortage of treatment options in the community.

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