The American Civil Liberties Union of New Hampshire has brought a class-action lawsuit against the state over what it describes as the “systemic practice” of holding patients in emergency rooms while waiting to be involuntarily committed to a state psychiatric hospital.
The suit claims that the practice denies patients of their 14th Amendment right to due process while forcing them to endure long waiting periods, sometimes up to three weeks, before being admitted to a designated receiving facility, such as New Hampshire Hospital.
“They are entitled to a prompt hearing regardless of the fact that they are confined in an emergency room rather than the state hospital,” Devon Chaffee, executive director of ACLU-NH, said in a press release. “Providing hearings for people boarded in emergency rooms because of a mental-health crisis will ensure that only those who are truly dangerous to themselves or others remain confined.”
State law requires involuntary psychiatric patients receive probable cause hearings within three days of admission. But under the current system, that process does not start until the patient is committed to an inpatient facility, which can take days or weeks before a bed becomes available.
“There needed to be a lawsuit that addresses this symptom of the waitlist,” said ACLU-NH Legal Director Gilles Bissonnette. “We’re not tackling the disease itself, but we have a lot of smart people in this state in hospitals, DHHS and lawyers in the government and can develop a plan to allow patients their right to due process.”
The suit alleges that the state has misinterpreted the law and cites a Merrimack County Superior Court ruling made in August that determined the clock should start when a patient is involuntarily admitted to an emergency room.
The lead plaintiff in the suit is a 26-year-old man who was held at Southern New Hampshire Medical Center in Nashua beginning Nov. 5 and had not been given a hearing as of the filing of the suit Saturday. The hospital renewed the involuntary emergency admission petition Thursday, which opened another three-day period while waiting for bed space to open up. The man was 14th on the waitlist that day, according to the filing.
The suit argues that the man should have received a hearing by Thursday, where a judge could have determined if there was probable cause as to whether the man could harm himself or others due to his mental condition.
The man was one of approximately 46 adults, as well as four children, who were being involuntarily boarded in emergency rooms in the state as of Oct. 31.
The practice, known as “psychiatric boarding,” has led to extended waiting periods for all emergency room patients in hospitals across the state, none perhaps more so than Concord Hospital due to its close proximity to New Hampshire Hospital.
Peter Evers, vice president of behavioral health at Concord Hospital and CEO of Riverbend Community Mental Health, said Concord Hospital typically has between 12 and 16 patients on a given day waiting for admittance to Concord Hospital. The time spent waiting, he said, can be a few days to a few weeks, or possibly longer.
“One poor woman with developmental disabilities waited 30 days last year,” he said. “We’re all trying to look for solutions to this.”
Through its suit, the ACLU hopes to find at least one of those solutions. Under the current system, an involuntary emergency admission petition is filled out in the emergency room and placed in the patient’s file. It stays there until the patient is transferred to an inpatient treatment facility, where they may be provided an appointed attorney and given a chance to contest their detainment.
Last year, New Hampshire Department of Health and Human Services Commissioner Jeffrey Meyers proposed a pilot program where hospitals would use video conferencing technology to “ensure timely protection of the … due process rights of patients.” The project was scheduled for a three-month trial period from Nov. 1, 2017, through Jan. 31, 2018, and would take place at four hospitals. Concord Hospital was not included. The program never got off the ground because in late 2017, the hospitals pulled out and cited “security concerns” as a reason, according the suit.
The ACLU would like to see the hospitals embrace this program and implement it, Bissonnette said.
“We think they should come back to the table and consider it,” he said. “Video conferencing is doable, it’s cost-effective and gives due process to these individuals in need.”
Despite an increase in the number of beds, the number of adults detained in emergency rooms while awaiting admission into an inpatient facility has increased by more than 350 percent, according to the suit.
At Concord Hospital, that may mean waiting in the so-called Yellow Pod, a holding area in the emergency room for psychiatric patients, or another area of the hospital that has been set up to help handle the overflow.
Patients are attended to by nurses, psychiatrists and social workers while waiting, Evers said, but many patients suffer illnesses so severe that they require the services available at a facility such as New Hampshire Hospital.
“In the past we’ve had people in hallways waiting,” Evers said. “It’s miserable. It really is.”
(Nick Stoico can be reached at 369-3321, nstoico@cmonitor.com or on Twitter @NickStoico.)