CONCORD — In an historic decision issued Tuesday, the New Hampshire Supreme Court ruled that people experiencing mental health crises who are held involuntarily in hospital emergency rooms must be granted timely due process. The ruling stated court hearings must be held within 72 hours of their arrival.

The ruling culminates the “Jane Doe” lawsuit against the state’s Department of Health and Human Services, brought by a woman who was held against her will for 17 days in August 2020 in the emergency room at Dartmouth-Hitchcock Hospital. The process is known as psychiatric boarding, being held without access to legal counsel, or an ability to challenge the hold.

“I’m certainly pleased the court reached the decision that it did,” said Gary Apfel, attorney for the woman, whose name is protected for privacy reasons. “What this case signifies is that people can’t be held in emergency rooms anymore while the state figures out what to do.”

The decision forces the state to make changes to ensure that people in mental health crisis receive timely mental health care, Apfel said.

Apfel said those changes might include more beds at New Hampshire Hospital the state’s psychiatric hospital and other hospitals, additional state resources dedicated to move patients more quickly into community treatment settings and options, more mobile crisis teams statewide, more Assertive Community Treatment teams to respond locally, more funding to expand services at the state’s community mental health centers, and transitional planning for patients leaving NH Hospital.

Ken Norton, director of NAMI-NH, the state chapter of the National Alliance on Mental Illness, said stakeholders including Gov. Chris Sununu plan to meet next week, and will likely address responses to this decision.

Norton said he hopes this ruling will enforce changes in what’s become the process for involuntary admission in the past eight or nine years. “My hope is that it will bring us back to making more major strides to ensure people in emergency mental health crisis get emergency access to mental health treatment.”

This goal prompted the creation of mobile crisis response units in 2014 in Concord, Manchester and Nashua that travel to respond to people in mental health crises where they are. If created statewide, they could alleviate crises before people go to emergency rooms, where they are held until they can be transferred elsewhere for treatment, or eventually released to the community with options for follow-up care. It’s a system bogged down by lack of sufficient resources. This clogs the system, stalls treatment, and often results in a revolving door of ER admissions without solutions for people with serious, chronic mental illness.

“NAMI-NH doesn’t want to see people who have been determined to be a danger to themselves or others released prematurely,” Norton said. The state currently has four designated receiving facilities, hospital units that provide short-term treatment of up to 10 days for mentally ill people who are transferred from emergency departments. They’re located at Franklin Regional Hospital, Parkland Hospital in Derry, Portsmouth Hospital and Elliott Hospital in Manchester. Patients may also be sent to Hampstead Hospital, NH Hospital or the Cypress Center in Manchester for stabilization and inpatient care. The problem that ballooned over many years has been finding available beds in appropriate treatment programs.

Prior to the court’s decision, “people were only getting there after being held in the ER after X number of days” – which NAMI believes violates the intent of the law, which requires timely treatment for those in mental health crisis, Norton said.

“NAMI-NH believes that the responsibility for treatment and care of people with serious mental illness doesn’t just lie with the state of New Hampshire, it lies with hospitals and health insurance. This is a systemic problem. We all have to put our heads together – the governor, the legislature, the courts, DHHS and the hospitals. This focuses us to do it, and accelerates the process,” said Norton.

In a prepared statement Tuesday, Steve Ahnen, president of the New Hampshire Hospital Association, said, “We are pleased with today’s Supreme Court Decision. The court clearly affirmed that when a patient is experiencing a mental health crisis, and receives an Involuntary Emergency Admission designation (a procedure which requires a notarized statement of need and urgency, typically by family members or guardians), that patient should be immediately transferred to the appropriate setting to receive the specialized care and due process that they need and deserve.”

Ahnen said NHHA will work with state leaders to ensure the ruling is carried out, and the needs of mental health patients in crisis and their families are met.

Apfel said a pilot program to better address this was started at four New Hampshire hospitals, but was discontinued by November, for reasons that remain unclear, but are likely rooted in lack of sufficient staff or space.

“The ultimate need is more community-based services,” starting with mobile units statewide, said Norton. “Locally and nationally, they’ve been demonstrated to divert people from hospitalization as well as law enforcement,” Norton said.  

The decision may have bearing on the American Civil Liberties Union’s 2018 lawsuit pending in federal district court, brought on behalf of those being detained without timely due process.

In April 2020, a federal judge ruled that the 72-hour timeline for due process and a hearing begins when a patient is involuntarily admitted to the emergency room. “The state didn’t fully comply and we continue to litigate the case,” said Gilles Bissonnette, legal director of the ACLU of New Hampshire.    

“Today’s historic decision is a major victory for mental health advocacy: it recognizes that those being boarded in hospital emergency rooms are human beings entitled to prompt due process,” Bissonnette stated in a press release from ACLU-NH. “For far too long, a lack of community-based mental health treatment options has means 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,” which has resulted in patients separated from work and their families for unnecessary lengths of time.

Bissonette said Tuesday’s state Supreme Court decision will have “a significant impact” on the ACLU’s class-action lawsuit, depending on whether the state complies.

“Our position is the state needs to take immediate action to comply with this order. From our view, the state has already had ample time. Two judges have agreed with our interpretation,” Bissonnette said. “If it doesn’t, we’ll litigate that this violates the federal Constitution.”

He said there are proven streamlined and efficient ways to provide prompt due process, including by videoconferencing or transferring to a nearby location for the hearing.

“There are solutions. What we need is the will to do it,” Bissonnette said. “We can’t have the situation we’ve had for going on eight years, which is individuals being detained for weeks at a time without due process.”

“We are currently reviewing the ruling and working with our legal counsel to determine how to comply with the court’s opinion,” said Jake Leon, communications director for DHHS.

“We are reviewing the decision and will assist our clients with complying with their obligations under the law,” said Anthony Galdieri, senior assistant attorney general, civil bureau, at the New Hampshire Department of Justice.

Advocates for people with mental illness are optimistic about forcing the state and providers to act.

"The state knows how to fix the problem of having too many people with mental illness ending up in emergency rooms," said Pamela Phelan, litigation director at Disability Rights Center NH. "We have seen what services and supports work, including mobile crisis teams, assertive community treatment and other community-based services. We also know that safe housing keeps people with mental illness living stable lives in their communities."

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The Sunshine Project is underwritten by grants from the Endowment for Health, New Hampshire’s largest health foundation, and the New Hampshire Charitable Foundation. 

Roberta Baker can be reached by email at Roberta@laconiadailysun.com.

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