CONCORD, N.H. (AP) — New Hampshire accomplished a major mental health care milestone last week when for the first time in eight years, no one was waiting in a hospital emergency room for an inpatient psychiatric bed. But a key issue in the state’s long-running emergency department boarding crisis continues to be debated in court.
After growing steadily for years, the number of psychiatric patients waiting in emergency departments for days and sometimes weeks hit an all-time high of 98 in August 2017. Those numbers have dropped since lawmakers increased funding for mobile crisis teams, designated receiving beds for patients in mental health crises and supported housing. And in the last two weeks, the state mental hospital began taking in more patients after shifting a children’s unit to another facility, resulting in the elimination of the waiting list for one day late last week, said Ken Norton, executive director of the National Alliance on Mental Illness-New Hampshire.
The numbers were significantly down before the coronavirus spread, and Norton said he hopes the pandemic will not erase gains made in rebuilding the state's community-based mental health care system. He welcomed the milestone as a “return to humane practice with immediate access to timely and effective treatment.”
But he expressed disappointment at the position taken by the state at a court hearing Thursday, when a lawyer for the Department of Health and Human Services commissioner asked a judge to dismiss a lawsuit filed on behalf of psychiatric patients involuntarily held in emergency departments.
The New Hampshire chapter of the American Civil Liberties Union sued in 2018 on behalf of a man who was admitted an emergency room after a suicide attempt and was held involuntarily without a hearing for nearly a week until his status was changed to voluntary.
State law requires involuntary psychiatric patients to get probable cause hearings within three days 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 ACLU argues it starts at the time of emergency room admission.
“A person certainly can’t be involuntarily detained without due process for 27 days or 20 days or 15 days or even five days without some sort of safeguards to ensure they are receiving some protections,” said attorney Aaron Curtis.
Attorney Samuel Garland, representing the health commissioner, argued that the requirement to hold a hearing within three days is triggered only after the patient leaves the emergency room.
“We do not believe the statute supports the conclusion that a private hospital that is not a designated receiving facility ... is part of the state mental health system under the supervision of the commissioner,” he said. “Our reading of it is the patient is admitted to the system when they are actually physically admitted to a designated receiving facility or New Hampshire Hospital.”
Norton called that argument “incredibly sad.”
“The issue of people in a mental health crisis being detained in emergency rooms without probable cause hearings is a civil rights issue,” he said.