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Dave Solomon's State House Dome: Mental health help, civil liberties at odds

State House Bureau

May 13. 2017 6:07PM

SENATE MAJORITY Leader JEB BRADLEY likes to play the role of fixer at the State House, finding the right compromise or amendment to guide controversial legislation through a thorny thicket of competing interests in a way that leaves most stakeholders comfortable if not entirely satisfied.

But the state’s chronic shortage of mental-health beds, and the effect it’s having on the constitutional rights of mental-health patients, is proving intractable even for the longtime Republican state senator and former congressman from Wolfeboro.

Last week, Bradley put forward a proposal that he hoped would immediately end the practice of holding mental-health patients for weeks on an involuntary basis, while denying them the due process that state law says they are entitled to within three days of their admission.

His proposal came after a May 1 letter from Michael Skibbie, policy director for the Disabilities Rights Center, which four years ago filed a class action lawsuit against the state over deficiencies in its mental-health system that led to a $30 million settlement.

While commending Bradley for House Bill 400, which promises to create new mental-health beds throughout the state at an estimated cost of $20 million over the next two years, Skibbie said the issue of due process prior to involuntary admission cannot wait any longer.

“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,” he wrote.

On May 4, Bradley submitted an amendment to an unrelated House bill that was designed to solve the problem. It would require 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.

Three days later, Commissioner of Health and Human Services Jeffrey Meyers wrote Bradley to express his “serious concerns.”

“The proposed amendment does not provide a clear solution to the stated problem, but rather complicates its overall resolution, raising more questions than answers,” according to Meyers.

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.

Where will these hearings be conducted? Meyers asks. Will patients be transported to courthouses in restraints? Who will line up lawyers, conduct the more extensive psychiatric evaluations required by law, contact witnesses and family members to testify?

Ken Norton, executive director of the state chapter of the National Alliance on Mental Illness, says the state has to find an alternative, and can’t wait until new beds become available a year or more from now.

“We are concerned about the prospect of denying people civil liberties based on what is convenient to us because we don’t have space,” he said.

The law mandating a hearing in three days never anticipated the warehousing of mental-health patients in hospital emergency rooms while they wait weeks for a bed at the state psychiatric hospital. While there has always been a wait list of hours or days, it has exploded into weeks and even months.

The average number of patients awaiting admission in one of the 26 hospital emergency rooms around the state tripled between April 2015 and April 2017. Through April of this year, the average was more than 40 adults and one child in a mental-health crisis waiting for an inpatient bed every day.

Some of them are ultimately deemed inappropriate for involuntary admission, after having been held without due process for weeks.

At a public hearing last week with Meyers, Norton, Skibbie and other stakeholders present, a consensus emerged that due process by video conferencing from hospital emergency rooms might be the best interim solution while new beds are being created.

Norton pushed for a deadline of Sept. 1 for a plan that could be implemented by Nov. 1.

“I’m OK with that,” said Bradley, the fixer sounding a bit frustrated.

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