November 4th, 2019

ACLU-NH lawsuit seeks due process for ER patients waiting for beds

According to state law in New Hampshire, individuals held against their will because of a mental health crisis must be provided a hearing before a judge to determine if they present a risk to others or themselves. That hearing must happen within three days of the signing of an Involuntary Emergency Admission.

However, because of a shortage of beds in the state’s psychiatric care facilities, people are often held in emergency rooms until a space opens up. And the mandated hearings are only offered at psychiatric facilities.

The result is that some patients are being held, against their will, in emergency rooms without a hearing. In some cases, this stay may be only shortly over the three days but in others, the time can last for a few weeks or longer.

At any one time over the past decade, there have been between a handful and more than 70 people being held in emergency rooms in the state.

Last November, the American Civil Liberties Union of New Hampshire (ACLU-NH), filed a class action lawsuit on behalf of John Doe (not his real name) who had been held for five days at Southern NH Medical Center in Nashua. (He was transitioned to voluntary status immediately after the suit was filed).

The lawsuit named the hospital and Jeffrey Meyers, in his role as commissioner of the New Hampshire Department of Health and Human Services (DHHS), as defendants.

The state filed a request for dismissal earlier this year which led the ACLU-NH to file an amended complaint in response, adding three more hospitals as defendants and three plaintiffs, one of whom had been held for 27 days without due process.

The state has re-filed for dismissal and the ACLU is currently working on a response to that request.

Although Meyers had expressed frustration with the lawsuit in past statements, the New Hampshire Department of Health and Human Services and the state’s Attorney General’s office declined to comment on the on-going litigation.

“The state claims that while these individuals are detained, there is no state action required so they can’t be held responsible,” said Gilles Bissonnette, Esq., legal director for the ACLU-NH. “We vehemently disagree with this.”

The lawsuit claims that, because the state has depended on hospitals to provide emergency boarding for mental health patients, it must be held responsible for providing due process as well.

“Our argument is, that if you can’t provide due process within three days, then people should be released because that is the system — that is the process,” said Bissonnette. “There are ways, while people are in the emergency room, for us to be able to provide a modicum of due process. That is not happening right now.”

In the lawsuit, the ACLU recommends that hearings happen in the hospitals where people are being held. The New Hampshire Hospital Association (NHAA), which joined in the lawsuit at the first amendment phase, filing an amendment of its own, objecting to hearings being held in emergency rooms.

Not only would ER-based hearings be “bad public policy and bad health care practice,” said Steve Ahnen, president of the NHAA, in a statement released at the time the organization joined the lawsuit, “it serves to enable and perpetuate the flawed system that exists today.”

Instead, the NHAA argues that the focus should be on insisting the state deal with extended boarding at hospitals and move patients more immediately into an appropriate site for care.

There are signs that the state is working to address the problem. A bill passed and signed by Governor Sununu in May of this year allocated more than $5 million to increase mental health beds.

“The idea was to create additional incentives to add designated receiving capacity,” said Bissonnette. “But we still are seeing a boarding problem. Maybe that law will kick in in the future but maybe not. We can’t just wait. Those people being held today can’t wait two years. They need due process right now.”

By Catherine Robertson Souter

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