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State sued over involuntary psychiatric boarding

By HOLLY RAMERNovember 13, 2018

CONCORD, N.H. (AP) — The New Hampshire chapter of the American Civil Liberties Union has filed a class action lawsuit on behalf of psychiatric patients being involuntarily held in hospital emergency departments.

State law requires involuntary psychiatric patients to get probable cause hearings within three days of admission to determine whether they are a danger to themselves or others. Under the state’s interpretation, the clock starts when someone is admitted to the state psychiatric hospital or other inpatient facility, but the lawsuit points to a Merrimack County court ruling that said the clock should start at the time of emergency room admission.

The lawsuit names the Department of Health and Human Services and Southern New Hampshire Medical Center as defendants. The lead plaintiff is a 26-year-old man who was admitted to the emergency room at the Nashua hospital on Nov. 5 after a suicide attempt and was held involuntarily without a hearing for nearly a week until his status was changed to voluntary. The lawsuit was filed Saturday, before his status was changed.

“When someone is indefinitely detained against their will without due process, wishes to see their children, and is worried about the financial security of one’s family, such frustration should be sympathized with, especially when the person is kept in a secluded, windowless room,” the lawsuit states. “Here, Plaintiff is desperate to get back to his family and his work. His family needs him. He is entitled to make that case to a Circuit Court judge.”

A spokeswoman for Southern New Hampshire Medical Center did not respond to a request for comment Tuesday. The Department of Health and Human Services referred questions to the attorney general’s office, which did not immediately respond.

The lawsuit highlights a problem the state has struggled with for years. A report released Tuesday by the New Hampshire Community Behavioral Health Association notes that the number of adults waiting for inpatient beds has steadily increased since 2015, peaking at a one-day high of 71 adults and 27 children. Aside from a few inmates, they are all waiting in emergency rooms and most, if not all, are deemed to be held involuntarily because the state psychiatric hospital does not accept voluntary admissions, said Ken Norton, executive director of the New Hampshire chapter National Alliance on Mental Illness.

He welcomed the lawsuit as a necessary step to what he called the “systemic discrimination” against people with mental illness and said he hopes it will spur a solution to a situation he has long deemed medically, legally, ethically, morally and economically wrong.

“None of us want to see people released on a legal technicality, but all other remedies have been attempted, including really good-faith efforts by the commissioner, by the Legislature, by the governor, and all ultimately failed,” he said. “We do think this will draw further attention to the current mental health boarding crisis.”

A sweeping bill to reform the state’s mental health system last year included a provision requiring the development of a plan to ensure timely hearings for patients held involuntarily in emergency rooms. But a planned pilot program involving four hospitals was scrapped in part due to safety concerns about essentially setting up mini courtrooms in hospitals.

The lawsuit, filed in federal court, asks that the state’s practice of denying due process to such patients be deemed unconstitutional. But Gilles Bissonnette, the ACLU attorney, said he hopes it will also prompt policy makers to take action to address the wider problem.

“We’re dealing with a symptom, not the disease. The due process issue is a symptom, the disease is really the underlying waitlist,” he said.

Mobile crisis response teams helped 5,052 people avoid emergency room admissions in 2017, according to the report from the Community Behavioral Health Association. But such teams are based only in Concord, Manchester and Nashua, leaving large areas of the state uncovered.

Peter Evers, CEO of Riverbend Community Mental Health Center, said he hopes those teams will be expanded, but also believes the state should consider increasing the number of inpatient beds.

“You have to ask the question, does New Hampshire really have the appropriate services for people with serious mental illness?” he said. “We’re not really having a proper conversation about the whole continuum of care until we understand that some people need a longer stay in a hospital.”

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