Advocates argue phone hearings deny due process rights of psych patients


New Hampshire Public Radio

Published: 11-06-2023 5:48 PM

Civil liberties advocates say New Hampshire’s practice of affording patients who have been involuntarily committed due to mental health concerns an initial hearing over a telephone, instead of in-person, is a violation of their due process rights.

The claims come more than five years into a legal battle over the state’s overburdened system for treating people in psychiatric distress, and the long-standing shortage of in-patient mental health beds.

In federal court on Monday, lawyers for the ACLU of New Hampshire argued that when patients are involuntarily held due to concerns about their mental health, those people should be granted either an in-person hearing, or at minimum a videoconference, as they attempt to convince a judge their release is warranted.

The state’s current policies, according to advocates, are to rely on telephonic hearings while people are held either within emergency rooms or at designated in-patient treatment facilities.

“We’re not asking for the moon here,” said Gilles Bissonnette, legal counsel for the ACLU, following the hearing. “We are asking for basic human dignity for this community.”

Lawyers for the state counter that the case should be dismissed from federal court, and that judges in New Hampshire are best left to determine their own policies for handling court procedures.

“The state court would be a more appropriate forum,” said Sam Garland, senior assistant attorney general for the New Hampshire Department of Justice.

The ACLU originally sued the state on behalf of people who had been held inside of hospital emergency rooms due to a shortage of mental health beds. They argued the resulting delays in treatment meant people in psychiatric distress languished for days, weeks or even longer inside of emergency rooms ill-equipped to treat them. The practice of ‘ER boarding’ also delayed a person’s ability to challenge their confinement.

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In a landmark agreement reached this summer between the state and a group of hospitals that also opposed the practice of ER boarding, the state pledged to eliminate the waitlist for inpatient psychiatric beds within 12 months. Real-time data provided by the state shows that 45 people are currently awaiting beds, however, including 29 adults who are inside of emergency rooms.

According to the ACLU, more than 2,000 people are involuntarily confined annually in the state due to mental health issues that allegedly make them a threat to themselves or others.

Bissonnette said that those people are being denied a thorough and robust chance to argue for their release in front of a judge when limited to just using the telephone.

“Where is the voice in this process for this community that traditionally has no voice? When will their concerns actually be listened to?” asked Bissonnette after Monday’s hearing.

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