State develops due process plan for mental health patients

By Dave Solomon – The commissioner of Health and Human Services and the N.H. Hospital Association have developed a plan to ensure that mental health patients housed in hospital emergency rooms, sometimes for weeks at a time without consent, are not denied their due process rights.

The $1 million proposal outlined in an Aug. 31 letter from DHHS Commissioner Jeffrey Meyers to Gov. Chris Sununu and legislative leaders describes a 90-day pilot program that will start with four hospitals, and eventually be expanded to all 26 hospitals in the state.

Patients being held in hospital emergency rooms for involuntary admission to the state psychiatric hospital or other long-term psychiatric facilities would get a probable cause hearing in front of a judge within 72 hours, via video link and telephone.

The hospitals will be required to provide a space for lawyers to meet with the patients and a secure video link that meets patient privacy standards.

While New Hampshire Hospital in Concord, and so-called “designated receiving facilities” for psychiatric patients in Manchester, Portsmouth and Franklin, are set up for such hearings, the 26 hospitals in the state are not, even though their emergency rooms are often crowded with mental-health patients.

In May, Michael Skibbie, policy director for the Disabilities Rights Center, said the issue of due process for involuntary admission cannot wait until the state creates enough new mental health beds to ease the boarding in emergency rooms.

Four years ago the DRC filed a class action lawsuit over deficiencies in the state’s mental-health system that led to a $30 million settlement.

“Even under the most optimistic scenarios, it appears that we have several months ahead of us during which adults and children will be confined pursuant to state statutes without the most basic protection of their right to liberty — the opportunity for timely review of the legality of their confinement,” Skibbie wrote.

After receiving the letter, state Sen. Jeb Bradley, R-Wolfeboro, submitted legislation designed to solve the problem. It would have required the state to hold a probable cause hearing within three days of a patient’s certification for involuntary admission, wherever they are being held, rather than the current practice of providing a hearing within three days of their admission to New Hampshire Hospital or another psychiatric facility.

Commissioner of Health and Human Services Jeffrey Meyers asked for more time to develop a plan in cooperation with various stakeholders. HB 400 was later passed by the Legislature and signed into law by Gov. Chris Sununu, requiring Meyers to submit a plan by Sept. 1.

The plan calls for creation of a new full-time coordinator position within DHHS called Central Involuntary Emergency Admissions Coordinator, based at New Hampshire Hospital.

Any local hospital with a mental health patient will then send a petition to the coordinator, who will contact the court, engage defense counsel, and notify all parties to the petition and witnesses of the time and location of the hearing.

The nearly $1 million annual price tag for the program includes an estimated $81,000 for the IEA coordinator position, $540,000 for attorneys; $108,000 for computers and software; $100,000 for technical support and $50,000 for additional emergency room staffing.