ACLU-NH raises concerns about proposed change to ER hold rules for mental health patients

An empty hospital hallway
If the Legislature and governor adopt the legislation as requested by the Department of Health and Human Services, patients could be detained even longer in emergency rooms against their will, according to the ACLU-NH.  (Getty Images)

This story was updated June 4, 2021 at 10 a.m. with new information.

The American Civil Liberties Union of New Hampshire has joined those raising concerns about a last-minute legislative request from state officials that would allow hospitals – in addition to the state – to hold someone against their will for up to three days while evaluating their emergency mental health needs.

The proposal was added late Thursday night as a non-germane amendment to House Bill 565, which seeks to create a study commission on charitable gaming. The Senate Health and Human Services Committee will hold a public hearing on the amendment via Zoom on Tuesday at 10 a.m. The amendment posted on the Senate’s website would allow a hospital to detain someone for up to seven days. Jake Leon, spokesman for the Department of Health and Human Services, said DHHS will ask the Senate to set the limit at three days.

If the Legislature and governor adopt the legislation as requested by the DHHS, patients could be detained even longer in emergency rooms against their will, according to the ACLU-NH. 

The state’s “involuntary emergency admission” law allows the state to hold patients considered a danger to themselves or others for up to three days before giving them a court hearing to challenge their detainment. A week ago, Health and Human Services Commissioner Lori Shibinette asked senators to consider separate “medical protective custody” legislation that would give hospitals their own option for a three-day hold. 

Gilles Bissonnette, legal director for ACLU-NH, said he’s concerned that rather than being alternative options, the two could be used together, meaning someone could be held for up to six days before getting a court hearing to challenge their detainment. 

“We appreciate DHHS’s effort to ensure that only those who are truly a danger to themselves or others as a result of a mental health condition be subjected to the involuntary emergency admission process,” Bissonnette said. “However, we have serious concerns with this proposal, and we think the Senate should not adopt it as drafted.  We believe that the answer to this crisis should be more due process, not the possibility of additional detention without a hearing.”

Bissonnettee is the lead counsel in pending federal litigation that alleges DHHS – because of a shortage of psychiatric beds – has been violating the existing involuntary emergency admission law by holding people for days, even weeks, in emergency rooms without a timely hearing. In a parallel case, the state Supreme Court agreed, ruling in mid-May that the state was violating that law by not holding “due process” hearings within three days.

Since the ruling, the state has nearly cleared the number of adults waiting in emergency rooms, going from 33 in mid-May to one Friday, largely by increasing its payments to hospitals and long-term care facilities. Shibinette said both have agreed to provide an additional 25 beds each. The number of children waiting for a bed, however, has climbed, from 25 to 36 in that time.

Shibinette said the medical protective custody proposal is intended to get mental health patients into appropriate treatment sooner, not hold them longer in emergency rooms. Existing state law gives hospitals only one option for holding someone against their will when medical providers need time to diagnose a condition or determine treatment: the involuntary emergency admission process that takes the person from an emergency room to the state hospital or one of its partner sites.

The proposed medical protective custody process creates a way for hospitals to still hold someone with an option to send them to a more appropriate setting, such as rehab for someone suffering from mental illness and substance misuse. 

Concerns raised by the ACLU-NH and other health advocates – the National Alliance on Mental Illness New Hampshire, the state’s 10 community mental health centers, and the New Hampshire Hospital Association – are due in part a few things: They were not consulted on the proposal and did not know it was coming. There are two versions of the amendment circulating, one with the three-day hold, the other with the seven-day hold. And, the proposed language is vague enough that it leaves big questions unanswered. 

For example, under existing law, a judge, not DHHS, determines whether there is legal justification to continue holding someone against their will. Under medical protective custody, DHHS would conduct the review and make the decision. 

The proposal does not address next steps if a hospital is unable to get the patient into the appropriate care within the time allowed, three or seven days, depending on the final wording. And it does not rule out the option of holding the patient for another three days without a hearing under the existing involuntary emergency admission law. 

“Rather than trying to implement a new detention scheme, we believe that the state should comply with the New Hampshire Supreme Court’s recent decision, including by providing prompt due process and increased funding of community-based mental health services,” Bissonnette said. “As the New Hampshire Supreme Court’s decision explained, the current law requires vital due process for patients who are involuntarily detained.”

Ken Norton, executive director of NAMI NH, raised similar concerns.  “Since the inception of ED boarding, NAMI NH has steadfastly maintained that the best way to ensure patient and public safety is for people in a mental health crisis, needing inpatient care, to be immediately transferred to an inpatient facility,” he said Friday. “Holding people in emergency rooms does not provide effective or humane treatment.”