ACLU-NH sues state on behalf of mental health patients held without hearings
New Hampshire Union Leader - 11/14/2018
Nov. 14--CONCORD -- The American Civil Liberties Union has filed a class action lawsuit against the state in federal court seeking an end to the practice of "psychiatric boarding," in which mental health patients are held against their will in hospital emergency rooms as they await admission to the state psychiatric hospital.
The lawsuit filed over the weekend acknowledges that the defendants, specifically the Department of Health and Human Services, made a good-faith effort to solve the problem in recent years but failed.
As a result, according to the ACLU of New Hampshire, "There is a systemic pattern and practice in New Hampshire where people who may be experiencing mental health crises are involuntarily detained in hospital emergency rooms, without any due process, appointed counsel or opportunity to contest their detention."
The lawsuit seeks a federal court injunction against holding patients without a hearing within three days of their hospital confinement.
Since the shortage of psychiatric beds is not likely to be addressed in the near future, "the necessity of providing immediate due process to those being boarded in emergency rooms is all the more urgent," according to the lawsuit.
Named as a plaintiff in the lawsuit on behalf of "all others similar situated" is "John Doe," a patient who was being held against his will at Southern New Hampshire Medical Center in Nashua, and should have received a probable cause hearing by Nov. 8.
Problem is well-known
The problem of psychiatric boarding has been on policymakers' radar at least since January 2013, when the state affiliate of the National Alliance on Mental Illness (NAMI-NH) convened a briefing with 15 other organizations to sound the alarm.
At that time and in the ensuing years, NAMI Executive Director Ken Norton has maintained the practice is "wrong -- medically, legally, ethically, morally and economically."
"It is our sincere hope that this federal class action suit will immediately bring together all involved parties to identify a sustainable solution to remedy this injustice," he said.
On the morning of Nov. 11, there were 46 adults and 12 children being boarded in hospital emergency rooms waiting for an inpatient psychiatric bed at New Hampshire Hospital or a similarly equipped facility.
At times the number of adults has been as high as 70 (on Aug. 21, 2017), according to a dashboard kept by state officials.
"People who present in hospital emergency departments because of a mental health crisis should not be deprived of their liberty without due process. They are entitled to a prompt hearing regardless of the fact that they are confined in an emergency room rather than the state hospital," said Devon Chaffee, the executive director of the ACLU-NH.
The state hospital has facilities to conduct competency hearings, while hospital emergency rooms do not.
Working with hospitals, NAMI and other stakeholders, state officials devised a plan to use video technology in emergency rooms for timely hearings, but that initiative fell apart.
"It is past time for this program to be implemented so due process can be immediately provided," said Gilles Bissonnette, ACLU-NH legal director and lead counsel on the case.
Earlier judge's ruling
Circuit Court Chief Judge Edwin Kelly in 2016 issued an order in the case of three patients who waited 17 to 20 days for a probable cause hearing to challenge their involuntary admission. He alluded to the "significant statutory, constitutional and due process implications" of psychiatric boarding.
Leading lawmakers took a tour of the crowded emergency room at Concord Hospital in 2017, and later enacted House Bill 400, part of which was designed to address the problem.
DHHS launched a 90-day pilot program with Catholic Medical Center in Manchester, Dartmouth-Hitchcock Medical Center in Lebanon, SNHMC in Nashua and Speare Memorial Hospital in Plymouth to provide hearings at the hospitals using video conferencing.
The pilot collapsed in late 2017 amid hospital concerns over security, liability and staffing needs, according to the lawsuit.
"We will continue to work with the state's hospitals to find a path forward that will allow for full implementation of this plan," said DHHS Commissioner Jeffrey Meyers."
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