A case before the New Hampshire Supreme Court boils down to two essential questions, argued the lawyer for a woman who was involuntarily held for more than two weeks in a hospital.
First, will the legislature allow people to be confined indefinitely without recourse to challenge their confinement? Second, will lawmakers allow the state to ignore suicidal people in the hopes that private parties will take up the slack?
The court heard oral arguments Thursday morning in a lawsuit filed against the NH Department of Health and Human Services that claims the state has not been prompt enough in providing judicial hearings for patients that have been involuntarily committed for mental health reasons.
The plaintiff, a woman identified by the pseudonym Jane Doe, says she was involuntarily held in an emergency department for 17 days before she was transferred to New Hampshire Hospital in Concord and received a probable cause hearing. Under New Hampshire law, involuntarily committed patients are entitled to a hearing within three days of being admitted.
The case rests on whether the three-day countdown starts when the patient reaches New Hampshire Hospital, as the state argues, or when they are confined in an emergency room. Jane Doe has already received a favorable ruling from a lower court judge, who agreed that the clock should start when a patient is admitted to the emergency room.
Anthony Galdieri, the senior assistant attorney general representing the state, argued that patients held involuntarily at private hospitals do not have due process rights because they are not in state custody. He said the Department of Health cannot force a private hospital to hold probable cause hearings and there are several legal and logistical concerns that might arise should hearings be held in an emergency department.
Gary Apfel, representing Jane Doe, argued it is the Legislature’s responsibility, not the court’s, to iron out how emergency room hearings might work. Furthermore, he said, a favorable ruling for the prosecution would not create a crisis more severe than the one already unfolding in hospitals across the state.
“It’s not like issuing a decision, in this case, is going to create a crisis. It is a crisis,” he said. “It’s just how it’s going to be dealt with.”
In the last nine years, it has become increasingly common for patients seeking psychiatric care to spend time in the emergency room while they wait for a bed at New Hampshire Hospital to open up. More than 8,000 Granite Staters have experienced emergency department boarding since the practice began in 2012, according to National Alliance on Mental Illness NH.
The backlog of psychiatric services has worsened during the pandemic. In February 2021, the waiting list for services at New Hampshire Hospital has hit record numbers of children and adults — there were several days when the list had more than 80 names.
Mental health advocates have argued that long emergency room stays are not just illegal, but inhumane. In a brief filed with the New Hampshire Supreme Court, advocates at NAMI NH described the conditions of the holding areas of the emergency room as “inherently unsafe places for people who may have high levels of impulsivity or impaired judgment.”
Apfel said the statute that outlines the three-day time frame was created with situations not unlike Jane Doe’s in mind.
“I remember … being told stories about the good old days of when husbands would take their wives who wouldn’t follow orders, drive them to Concord, and they would have a lifetime commitment at the New Hampshire Hospital,” he said. “This statute … was enacted to prevent that from happening and it sets out a series of required steps to prevent erroneous or excessive deprivation of liberty.”