New Hampshire Hospital

New Hampshire Hospital in Concord.

CONCORD — The New Hampshire Supreme Court has ruled that the state violated the rights of a psychiatric patient when it missed deadlines written into state law that guarantee rights of people who are admitted to psychiatric hospitals against their will.

The unanimous ruling by three Supreme Court justices was issued Tuesday. It was the second ruling to go against the state Department of Health and Human Services, which has fought challenges over the boarding of mentally ill people in hospital emergency rooms when psychiatric hospitals are full.

In a statement, the spokesman for Gov. Chris Sununu said the state’s mental health system was in disarray in 2016, the year Sununu was first elected. The Republican rebuilt the system and successfully managed the emergency room waitlist prior to the COVID-19 pandemic, said spokesman Ben Vihstadt.

“We have never taken our eye off this critical issue and the state is reviewing the decision to ensure our most vulnerable citizens get the services they deserve in their time of need,” Vihstadt said.

According to the ruling, the Sununu administration warned that a finding that goes against the state could result in judges either releasing patients without treatment or allowing boarding to continue in individual cases.

The case decided Tuesday dealt with a single patient, a Jane Doe who was admitted to Dartmouth-Hitchcock Medical Center in Lebanon against her will under an Involuntary Emergency Admission order, which is signed by a psychiatrist. State law says she should have been immediately transported to a psychiatric hospital and within three days go before a judge who would decide whether she should be committed.

She didn’t get to the New Hampshire State Hospital for 17 days, not including Sundays and holidays. Once in the hospital, she did get her hearing before a judge within the legal time frame.

Justice Gary Hicks wrote that Jane Doe’s statutory rights were violated. His ruling rejected the state’s main argument, that the three-day clock for a hearing did not start until Doe was admitted to the state hospital.

“Nothing in the statutory scheme allows a person to be held indefinitely pending delivery to a receiving facility,” wrote Hicks, an appointee of former Democratic Gov. John Lynch, in an 18-page decision.

The justices affirmed the ruling of Merrimack County Superior Court Judge Brian Tucker, who ruled in favor of the patient, who said she should be released because she did not have a hearing within three days.

“Emergency Department Boarding is a visible example of the discrimination faced by people with mental illness in accessing treatment,” Ken Norton, the director of the National Alliance on Mental Illness (NAMI) said in a statement. “Emergency Room Boarding is wrong medically, legally, ethically, morally and economically.”

The failure to provide legal rights to mentally ill patients reflects the failure of the system, and that means higher rates of incarceration, suicide and homelessness for mentally ill people, Norton said.

In January, a federal judge ruled that a lawsuit that challenges emergency room boarding can go forward. In that ruling, Judge Joseph DiClerico rejected many of the state arguments that lawyers for the state used in the more recent case.

“Today’s historic decision is a major victory for mental health advocacy: It recognizes that those being boarded in hospital emergency rooms are human beings entitled to prompt due process,” said Gilles Bissonnette, legal director of New Hampshire ACLU in a statement. The ACLU, NAMI and the New Hampshire Hospital Association filed briefs in the case.

Hicks noted that both sides agree that the system is not working because there are not enough beds in treatment facilities. As a result, patients are boarded in private hospitals and not provided treatment or a hearing before a judge. He said the Legislature could change the law to rectify the decision, and he avoided making a ruling on constitutional grounds.

“We do not opine as to how the (state Department of Health and Human Services) should comply with its statutorily-mandated duty as our system of government entrusts such decisions to (the executive and legislative branches),” Hicks wrote.

Justices Patrick Donovan and James Bassett concurred in the decision.

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