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House, Senate at odds over future of prison's psychiatric unit

By Dave Solomon
State House Bureau

May 08. 2018 9:32PM
Sign at the Secure Psychiatric Unit at the State Prison in Concord. (DAVID LANE/UNION LEADER FILE)

CONCORD — Those who know him may recall 21-year-old Andrew Butler as a popular student athlete at Hollis-Brookline High School, where he captained both the football and wrestling teams.

Today at the state prison in Concord he’s prisoner number 114971, confined to the prison’s Secure Psychiatric Unit, which state Rep. Renny Cushing calls “New Hampshire’s dirty little secret.”

As lawmakers debate the future of the unit, attorneys for the Hollis man have filed a petition with U.S. District Court claiming he has committed no crime, but is being subjected to “cruel and unusual punishment.”

“What the SPU has been and continues to be is a dirty little secret,” says Cushing. “No one wants to acknowledge that in the year 2018, we take people whose only crime is mental illness, and rather than treat them in a hospital, we put them behind prison walls.”

Cushing, a Hampton Democrat, has tried for years to get the state to create a secure psychiatric forensic unit at New Hampshire Hospital for patients like Butler, to no avail.

This year he took a different tack, filing legislation (HB 1565) that would require the SPU to be accredited as a psychiatric hospital by the Joint Commission on Accreditation of Hospitals.

When the bill got to the Senate last Thursday, it was amended to require accreditation from the National Commission on Correctional Health Care as a behavioral health facility.

A conference committee will likely be appointed for the two sides to work out their differences before the end of the month. Failure to achieve a compromise means the status quo remains in effect.

Cushing is not optimistic. He says an accredited psychiatric hospital under the Department of Health and Human Services is vastly different than a behavioral health facility under the Department of Corrections.

“That says we are going to lower the bar so much that we are going to continue to normalize this treatment and say it’s good enough to meet prison standards, not hospital standards,” he said.

Cushing said he will oppose the Senate amendment when it goes to conference committee.

“I am going to fight any effort to downgrade the level of care we should expect for people who never committed a crime,” he said. “If the state won’t build a secure, multipurpose psychiatric unit, it has to at least build the SPU up to the level where it will pass the standard of an accredited psychiatric hospital.”

Downward spiral

Butler’s father, Doug, said his son had no history of mental illness until he returned from a trip with college friends to Vermont last summer.

“He took some unidentified substance that he didn’t know what it was, but it wasn’t pharmaceutical, and it had an adverse effect on him,” said Doug Butler.

Things spiraled down from there. The young man was civilly committed to New Hampshire Hospital. He was diagnosed as psychotic and schizophrenic, and later transferred to the SPU.

The SPU was designed to hold individuals involved in the criminal justice system due to mental health issues, such as those deemed guilty by reason of insanity or those awaiting certification as competent to stand trial. But patients like Butler are incarcerated there because New Hampshire, unlike 47 other states, has no other place to put them.

The result, according to Butler’s attorney, is unconstitutional.

In a petition to U.S. District Court in Concord dated April 26, Nashua attorney Sandra Bloomenthal asks a federal judge to order Butler’s transfer out of the SPU into an accredited, specialized mental health hospital.

“He is held as a mental health patient without being in an accredited hospital, denied contact visits with his father, denied contact visits with his attorney, and forced to wear prison clothing,” according to Bloomenthal.

“He is locked down 23 hours a day. He has been Tasered. The treatment he has received is cruel and unusual punishment without having been convicted of a crime and with no pending criminal process.”

Ironic timing

It’s ironic, Cushing says, that Bloomenthal’s petition was filed the same day the Senate “downgraded” HB 1565 “from an accredited hospital to a competent prison medical facility.”

While sympathizing with the Butler family, state Sen. Kevin Avard, R-Nashua, says the Senate amendment represents a more realistic option.

“I wouldn’t call it a downgrade,” he said. “I’d say it’s more suitable for the prison. It may not be the real solution, but it gets the ball rolling toward some kind of accreditation and making it accountable for some type of standards.”

Avard said he consulted with Department of Corrections officials, including the commissioner, and was told it would be impossible for the SPU to meet hospital accreditation standards as things currently stand.

“We need to address this in the next session,” said Avard. “Do we need a unit separate from the prison? The conversation needs to get started. Rather than spending money settling lawsuits, wouldn’t it be better to spend it on a new facility?”

Associate Attorney General Anne Edwards told the Union Leader in a previous interview that the SPU may not be ideal, but it is legal.

And Corrections Commissioner Helen Hanks said, “We operate the Secure Psychiatric Unit within the requirements of law and administrative rules.”

A Commission to Study Current Mental Health Procedures for Involuntary Commitment was created by the Legislature in 2017, and has until November of this year to issue its report.

Among other things, the commission is charged with “exploring the accreditation of the Secure Psychiatric Unit as certified forensic psychiatric hospital.”

Meanwhile, more than 1,000 of Andrew Butler’s friends signed a petition delivered to Gov. Chris Sununu last week, urging him to intervene in the case.

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