Senate committee unanimously rejects ‘medical protective custody’ proposal

By: - June 8, 2021 2:37 pm
Emergency room entrance

The committee voted the amendment to House Bill 565 inexpedient to legislate. (Dave Cummings | New Hampshire Bulletin)

A state proposal to give hospitals their own power to detain people in emergency rooms while deciding their mental health needs was rejected, 4-0, by a Senate committee Tuesday following a two-hour public hearing where no one voiced support. 

“While the issues identified in this are important and need a resolution, we’ve run out of time,” said Sen. Jeb Bradley, a Wolfeboro Republican, of the last-minute legislative request from the state Department of Health and Human Services. He continued, “There’s no consensus that anybody’s bought into, and I see no way this amendment can go forward without an awful lot of collaboration amongst the interested parties.”

The committee voted the amendment to House Bill 565 inexpedient to legislate. 

Opponents said DHHS’s last-minute request for a “medical protective custody” provision risked extending emergency room waits, failed to make clear how a patient could challenge a detainment, and contained no guidelines for deciding who could be held. 

“Providing patients that due process is imperative,” said Steve Ahnen, president and CEO of the New Hampshire Hospital Association, who was joined in opposing the proposal by people who’ve been hospitalized during a mental health crisis and several advocacy groups, including NAMI NH, the ACLU of New Hampshire, and the New Hampshire Disability Rights Center. “But just as important,” Ahnen continued, “is getting patients the care they need. We are concerned this amendment would perpetuate a system of delaying when patients are able to get that care they need.”

In mid-May, the state Supreme Court ruled the state has violated mental health patients’ due process rights by holding them in emergency rooms beyond three days without a hearing. DHHS Commissioner Lori Shibinette said Tuesday the state resolved that problem quickly by persuading long-term care facilities and local hospitals to provide more beds in exchange for increased payments. 

The number of adults waiting in emergency rooms has gone from 42 in mid-May to zero Monday. The number of kids, however, has gone from 25 to 33 in that time.

Shibinette said a new medical protective custody provision was intended to give hospitals a way to hold, assess, and care for patients who need treatment but not something as drastic as involuntary commitment to the state hospital. It’s something hospitals have long asked for, she said. In the past three weeks, 25 involuntary emergency admission petitions filed by hospitals were dropped, 15 of them because, upon assessment, those patients needed substance misuse treatment, not hospitalization. 

In her remarks to the Senate Health and Human Services Committee, Shibinette acknowledged the lack of support among advocates and providers. “I asked them all the same questions,” she said. “If not this, then what?”

For the most part, those who testified Tuesday, who saw Shibinette’s proposal for the first time less than two weeks ago, did not propose an alternative idea. Instead, they detailed their concerns and pledged to collaborate with Shibinette on another approach. 

Gilles Bissonnette, ACLU legal counsel and the attorney in a federal case against DHHS over long emergency room detainments, said the legislation, as written, could have allowed a hospital to detain someone for up to six days without a court hearing to challenge their detainment, first under a medical protective custody emergency admission law. While a person being held under medical protective custody can ask DHHS to review their record, it does not allow a hearing before a judge. 

Bissonnette said the challenge and court review process should happen much sooner and be more clearly defined. 

Ken Norton, executive director of NAMI NH, said his organization could support an alternative to the involuntary admission process if there was a clearer standard for determining who is held and a guarantee among the state, local hospitals, and commercial insurance providers that alternative treatment options exist.

“The major problem with this proposed amendment is that it’s fatally flawed in that it presumes mental health treatment is available in emergency departments. Simply stated, it is not,” he said. “Enacting this medical protective custody provision without first ensuring the treatment is available at local hospitals will likely mean people in a mental health crisis will languish,” he said. 

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Annmarie Timmins
Annmarie Timmins

Senior reporter Annmarie Timmins is a New Hampshire native who covered state government, courts, and social justice issues for the Concord Monitor for 25 years. During her time with the Monitor, she won a Nieman Fellowship to study journalism and mental health courts at Harvard for a year. She has taught journalism at the University of New Hampshire and writing at the Nackey S. Loeb School of Communications.