Advocates, courts work to fix ‘dangerous’ flaw in involuntary emergency admissions process

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The executive director of NAMI NH, Susan Stearns, has talked with the court about hosting a webinar to help families understand the new process before they need to seek an emergency admission for a loved one. photo/Dana Wormald, New Hampshire Bulletin

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A dire shortage of treatment beds has kept people suffering a mental health crisis languishing in emergency rooms for days and weeks without access to treatment. Mental health advocates say it’s had another serious consequence: the premature release of people held against their will for safety reasons.

They are optimistic the state’s new approach to processing involuntary emergency admission cases will change that – and resolve constitutional due process violations raised by the state Supreme Court last year.

State law requires anyone held for treatment against their will to be admitted immediately to one of the state’s nearly two dozen acute care hospitals for treatment and given a hearing to challenge their confinement within 72 hours. After that three-day deadline, the law requires that the “involuntary emergency admission” petition be dismissed and the person released.

“It could potentially be very dangerous,” said Susan Stearns, executive director of NAMI NH.

In 2019, circuit courts dismissed 59 of the 1,900 involuntary emergency admission petitions filed, according to a court record. In 2020, it dismissed 113 of the nearly 1,970 filed. Court spokeswoman Susan Warner said numbers for 2021 are not available and was unable to provide data from prior years by deadline.

Too often, Stearns said, those dismissals were the result of missed deadlines, not a change in safety concerns. The other option, which had also been common practice according to court records, was to hold someone days or weeks beyond those 72 hours to protect them or others from harm.

The circuit court system is aiming to significantly reduce those delays and dismissals with a new centralized statewide “mental health” docket that shifts oversight of involuntary emergency admission cases from the Department of Health and Human Services to the court.

The plan calls for two judges and dedicated court staff to handle scheduling and hearings for all of the estimated 2,600 involuntary admission cases a year, including those involving guardianships. Currently, multiple courts handle these labor-intensive cases, and only the Concord court has the resources to hear contested petitions every day.

The new plan puts the cases in the hands of fewer people and lays out a clear, step-by-step process for handling contested petitions that gives all parties – from clinicians deciding whether to hold someone to the hospitals that admit them for treatment – clarity and consistency.

“It’s designed to ensure that people’s due process rights are fully upheld and that those who are deemed dangerous to themselves or others are not being released on a technicality when they need treatment,” Stearns said.

In its four-week trial run, the approach has reduced delays, Supreme Court Chief Justice Gordon MacDonald said in a memo to the Joint Legislative Fiscal Committee. But the courts have used existing staff and delayed other cases to do so, he wrote.

MacDonald and Taylor Caswell, executive director of the Governor’s Office for Emergency Relief and Recovery, have asked the fiscal committee to approve the use of $2 million in American Rescue Plan money to fill two vacant judge positions to staff the mental health docket through June 2023 and buy technology for remote hearings.

MacDonald said in his memo that additional funding has been requested to cover staffing costs until June 2024. The judicial branch will seek state funding in its own budget to continue the program beginning the following year, he wrote.

“Although this effort has met with great success, and the number of dismissals for failure to meet statutory deadlines has been reduced dramatically, the effort is not sustainable on a long-term basis,” MacDonald wrote.

Judge Susan Ashley, deputy administrative judge of the circuit court, said the court has long wanted to improve the way petitions for involuntary emergency admissions are handled. A May state Supreme Court decision made doing so a priority.

The case before the court involved a woman who had been held against her will for nearly a month over concerns she was so dangerous, her life or others could be at risk if she was released. She spent nearly two weeks in an emergency room waiting for admission to the state hospital and several more days there waiting for a hearing.

The woman, identified as Jane Doe, argued that her due process rights had been violated. The ACLU-NH alleged similar due process claims in a federal lawsuit involving several other people. The state defended itself in both cases by arguing the 72-hour clock did not start until a person had been admitted to an acute care hospital, not when they arrived at an emergency room in crisis.

With about 200 inpatient beds available in New Hampshire, finding an inpatient bed at a hospital could take days, even weeks.

The court rejected the state’s position, saying the three-day window begins when a clinician completes an involuntary emergency admission certificate to hold someone. Detaining someone longer without a hearing was a violation of their due process rights, the court said.

Several weeks after the ruling, Gov. Chris Sununu issued an executive order giving Health and Human Services sweeping authority to assess the state’s overall mental health system and make changes. It has made several, including giving community mental health centers more money to provide mental health treatment and purchasing Hampstead Hospital to increase inpatient care for kids and young adults.

In January, the department rolled out statewide mobile crisis response teams and a central “rapid response access point” call center to respond to mental health-related calls 24 hours a day via 833-710-6477 or NH988.com.

In its first month alone, the call center sent out a mobile crisis response team 427 times and responded to 1,565 requests for mental health help, according to data from the call center. Stearns and other mental health advocates say those “upstream” investments in expanding access to mental health care are crucial – and key to reducing the number of people who need inpatient care.

But achieving a drop in hospital admissions will take time.

Ashley said the governor’s office and Health and Human Services asked the circuit court what it could do immediately to more efficiently and fairly process involuntary emergency admission cases. In collaboration with those offices and the acute care hospitals, the court created the mental health docket, she said.

The court has created a new Involuntary Emergency Admission petition in addition to its new step-by-step process guidelines. Once a person is admitted to an acute care hospital and a clinician certifies the person poses a risk to themself or another, the hospital must immediately file the petition with the court.

The court must schedule a hearing within three days and provide a lawyer upon request. Those hearings can be done by video, telephone, or in person.

Ashley said lawyers appointed to represent clients in these cases have said the new process allows them to meet with their client sooner, rather than hours before the hearing.

A spokeswoman for ACLU-NH, which has helped lead the effort to ensure due process rights are upheld, said staff are still reviewing the new process and could not comment. Meanwhile, Stearns has talked with the court about hosting a webinar to help families understand the new process before they need to seek an emergency admission for a loved one.

“It is thanks to the courage of Jane Doe and her willingness to turn what must have been a tremendously traumatic event for her into an opportunity to create meaningful change for others who might find themselves in a similar situation,” Stearns said. “In every instance, we have to remember that it is because of her and her courage that we are seeing these changes.”


Story republished with permission under New Hampshire Bulletin’s Creative Commons license.


 

About this Author

annmarie-timmins

Annmarie Timmons

Senior ReporterNH Bulletin

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.