CONCORD, NH – Following a two-hour public hearing on a controversial amendment Tuesday that would expand hospitals’ ability to detain patients who are a danger to themselves and others, and broaden the definition of community mental health programs, the Senate Health and Human Services Committee voted unanimously not to recommend the amendment, and referred the base bill back to the House.
The amendment was proposed by the Department of Health and Human Services as replace-all language to HB 565. Sen. Jeb Bradley said the department first approached him about adding it as an amendment to the budget, which he declined to do. But Bradley said he felt the issue was important enough to merit a hearing and a discussion.
Dozens of stakeholders, experts, members of the public and state reps offered testimony in opposition to the proposed amendment. The prevailing fear was that it was either intended to allow hospitals to detain patients without due process for even longer than the current law allows, or that the language was vague enough that it could be potentially abused to that end.
“As we read it, it creates a new detention system… and, as a result, increases the number of days a person is detained without due process,” said Gilles Bissonnette, the legal director of the American Civil Liberties Union of New Hampshire and the counsel for a class-action lawsuit representing individuals in the state who have been held in hospital emergency departments indefinitely without due process.
The legislation was an attempt to find at least some wiggle room in the wake of a state Supreme Court ruling that found the state was violating patients constitutional rights by systematically detaining patients in hospital emergency departments, sometimes for days and weeks or months, before they are granted a probable cause hearing, which is required within three days excluding Sundays and holidays after they enter the mental health system.
The state had been using a loophole by having hospitals certify involuntary emergency admissions but not starting the three-day clock until after they were transferred to a designated receiving facility. And since inpatient beds at those facilities are at a premium, waitlists caused patients to languish in hospitals, which critics argued was inhumane, bad for their mental health and unconstitutional.
DHHS Commissioner Lori Shibinette told senators that they’ve been compliant with the court order for at least the past two weeks. Shibinette and the Governor’s office announced Monday they reduced the adult waitlist to zero for the first time in over a year using some the short-term solutions and added 25 beds at New Hampshire Hospital. They accomplished this in part by implementing a $45,000 per bed incentive to long-term care facilities for receiving geropsychiatric patients from New Hampshire Hospital and Glencliff Home.
Shibinette also said during Tuesday’s hearing that the department is negotiating on a deal that would “significantly” increase child mental health capacity, but cannot disclose any details yet.
The amendment would have done two things; firstly, it would add “private entity” to the list of community mental health operators, which currently includes programs administered by state, city, town, county entities or a nonprofit organization.
The second thing the amendment would do is establish a separate legal means for hospitals to detain patients called medical protective custody, which would allow hospitals to detain people who are deemed a danger to themselves and others for 72 hours, in cases where it does not involve a mental illness. This would run parallel to the existing involuntary emergency admissions process for mental health patients.
The goal, Shibinette said, was to give them more options for community mental health partners, and to equip hospitals with an additional tool for detaining patients other than IEAs, which she said are often inappropriately used.
Many hospitals are flooding the courts and mental health system with patients who are not mentally ill, because they may wish to detain someone who comes in intoxicated and poses a danger to themselves or others, for example, according to DHHS’s Chief Medical Officer Jonathan Ballard.
“An involuntary admission to a mental health hospital is not always the right answer,” Ballard said.
Bissonnette agreed that it’s overused, saying over 200 cases, 12 percent of the total reviewed by a judge last year, were thrown out on probable cause. But he said the amendment, as written, would allow hospitals to use the protective custody provision and then initiate an IEA consecutively to keep patients in their care longer.
When asked by Sen. Rebecca Whitley if the law could be used in this way, Melissa St. Cyr, Chief Legal Officer for DHHS, said that “is not the expectation.”
Ultimately, Shibinette said the waitlist could rise again, and if it does the patients who are granted a hearing after the legal deadline will likely be released, though they can issue a second IEA if the patient exhibits “new behaviors” or they may have some patients who elect to stay voluntarily.
Critics also said the amendment offered no clear definition of private entity, saying it could mean anything from a for-profit company to an individual person.
Ken Norton of NAMI NH said he was in support of the idea of the private entity provision, but opposed the protective custody provision because the language is too unclear. He said he could support the provision if it included language that carved out people with mental illness, but also said it’s traditionally been the role of police to jail people who are a danger to themselves and others for reasons other than mental illness.
If too many hospitals are misusing the IEA process, then Norton said that’s an opportunity for training hospital staff on the appropriate ways to triage and use IEAs.
Bissonnette presented a list of five proposed legal fixes that he said would protect people’s rights, expedite the hearing and appeals process, and inform patients of their rights earlier in the process.
Sens. Whitley, Bradley and Jim Gray asked questions and, at times, expressed concern about how the proposed legislation would be implemented.
Bradley suggested a working group of stakeholders and experts should work with Shibinette on refining the legislation.
“I don’t see a way forward, personally,” Bradley said. “It really needs to be hammered out carefully and not done last minute.”
The committee ultimately voted inexpedient to legislate on the amendment and then voted to re-refer the base bill back to the House.