Dozens still wait in ERs for mental health care but fewer released prematurely on technicalities

By: - July 6, 2022 5:51 am
A sign for the Concord District Courthouse

The Concord District Courthouse on Clinton Street in Concord. (Dana Wormald | New Hampshire Bulletin)

If the state wants to hold someone against their will for emergency mental health treatment, it has three days after completing a petition to get approval from the circuit court. Too often it was missing that deadline, leaving judges no choice but to release people, even those considered dangerous to themselves or others, said Judge David King, chief administrative judge of the circuit court.

“They were dismissing cases where they knew and the lawyers knew that the patient needed treatment,” he said. “And I think the judges were losing sleep every day over those dismissals.”

That’s changed considerably, King said, since the circuit court took over the “involuntary emergency admissions” petition process in late March, following a state Supreme Court decision against the state for due process violations. 

The dismissal rate has dropped from 53 percent to 16 percent, King said. Of the 694 petition hearings held since the change, just four have resulted in someone being released over a missed deadline.

Patient advocates say that’s a step in the right direction. But they are concerned about what could happen before a petition is sent to the court under proposed rule changes to the involuntary emergency petition process drafted by the state Department of Health and Human Services.

The changes relate to how much time a petitioner, typically a medical practitioner, seeking to hold someone against their will has to request the court provide the person a hearing to challenge the detention.

At a public hearing Thursday, the American Civil Liberties Union of New Hampshire, NAMI NH, and the New Hampshire Hospital Association told the department they fear the proposed changes could allow the state to hold people for as many as nine days before allowing them to challenge their detention in court. That’s three more days than is currently allowed. 

Most often those individuals are being held in emergency rooms, which are not set up for long-term stays or mental health treatment; as of Tuesday, that count was 31 adults, plus three people waiting in a correctional facility, according to the department’s tracker. Meanwhile, Health and Human Services has closed two units with 48 beds at the state hospital due to staffing shortages.

“NAMI NH has consistently held the position that emergency room boarding is ethically, morally, financially, and legally wrong,” Holly Stevens, director of public policy, said in her written testimony. “Timely probable cause hearings on petitions for involuntary emergency admissions to psychiatric facilities are critical in ensuring that due process is maintained. The draft (rule changes have) loopholes that, if exploited, could allow for people being boarded in emergency rooms without the due process required under NH law.”

Health and Human Services did not respond to a request for comment on advocates’ concerns. Spokesman Jake Leon said in an email that the department will ensure changes to existing rules governing the involuntary emergency admissions comply with state law. 

The department drafted the existing rules last year after the state Supreme Court found it was violating the law by not giving people the required court hearing within three days. In some cases, people were waiting days, even weeks for a hearing. 

The department also worked to expand the number of treatment beds by offering hospitals financial incentives using pandemic assistance.

The ruling also prompted the circuit court, with support from Health and Human Services and mental health advocates, to assume responsibility for processing involuntary emergency admission petitions. 

The court has simplified the petition form and assigned support staff to coordinate scheduling with the petitioner, person’s family, and the lawyer appointed to represent them. The court is similarly assigning cases to a small group of judges to keep better track of petitions. And King partnered with NAMI NH on a webinar explaining the new process.

Hearings are held by telephone, typically between the court and the emergency room where the person is being held. King said the court issues a finding the day of the hearing. Between March 21 and May 31, judges found probable cause to hold the person in 178 cases and found no probable cause in 41. Twenty-one petitions were withdrawn before the hearing. 

Gilles Bissonnette, legal director for ACLU of New Hampshire, said the organization is concerned the arrangement limits meaningful engagement among the judge, the individual being held, and the attorney. 

King disagreed, and for now, he said, it’s the best option. Individuals are most often calling in from emergency rooms across the state. The court doesn’t have the means to send a judge to every emergency room, he said. And the hospitals can’t count on having a private room with video options, he said.

King also believes the new process provides more meaningful contact between the person being held and the lawyer assigned to their case. Prior to streamlining the process, courts often received a petition within a day or less of the three-day deadline, leaving too little time for the lawyer to talk with the client ahead of the hearing. 

Now, lawyers often talk with their clients ahead of the hearing. 

NAMI NH Executive Director Susan Stearns said the court has improved the one part of the process that it can control. Scheduling, hearing, and deciding petitions within the three-day window better ensures people who need to be held for treatment are, and not released on a technicality, she said. And, meeting that deadline protects their civil right to due process. 

The other solutions – expanding mental health treatment to prevent crisis visits to the emergency room and solving workforce shortages – are separate challenges that will take longer to solve. The state and community mental health centers have made significant strides, she said, with the new statewide mobile crisis teams and 24/7 phone and text line, 1-833-710-6477, and website, 

“We have to be able to walk and chew gum. We can’t say we are going to do this piece and not that piece,” Stearns said. “The (court’s) mental health docket is certainly one piece. It’s not a panacea for the whole system.”

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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. Email: [email protected]