New Hampshire’s practice of temporarily boarding mental health patients in hospital emergency departments is an illegal seizure of the hospitals’ property that disrupts care for other patients in need, a federal judge has ruled.

In an order issued Feb. 23, U.S. District Judge Landya McCafferty did not immediately require the practice to end, but told hospitals and the New Hampshire Department of Health and Human Services to come up with a timeline for proposing a court order to permanently resolve the issue.

New Hampshire has long struggled with a lack of capacity in its mental health system, forcing some people in crisis to wait days or weeks for treatment. As of Friday, eight children and 38 adults — including 30 in hospital emergency departments and eight in correctional facilities — were waiting for an emergency mental health bed.

McCafferty said the state health department is failing to meet its obligation to immediately transport patients out of hospital ERs and into an appropriate mental health facility when they are held involuntarily due to a mental health crisis. Leaving those patients in emergency departments violates the hospitals’ right to be free of unreasonable government seizures, she ruled.

“The record is clear; the Commissioner’s boarding practice commandeers space, staff, and resources in the Hospitals’ emergency departments that is needed for other patients and services,” the judge wrote.

McCafferty’s order is part of an ongoing federal lawsuit brought by patients who allege their due process rights were violated. A group of about 20 hospitals in New Hampshire intervened, challenging the state’s practices as violations of their constitutional rights.

Those hospitals also sued the state in Merrimack County Superior Court in December, seeking an order that would force the state to stop boarding mental-health patients in emergency departments. That case remains pending.

State officials have taken steps in recent years to expand the mental health care system, spurred in part by the New Hampshire Supreme Court ruling in 2021 that the state was violating the rights of patients held in emergency rooms by not promptly granting them probable cause hearings.

But state officials say workforce shortages have limited the number of patients they can accept right now. At New Hampshire Hospital in Concord, the state’s main psychiatric hospital, only 157 out of 185 beds were in use as of Friday.

In a statement, New Hampshire Hospital Association President Steve Ahnen said the state’s hospitals “look forward to working with state leaders to ensure achievement of a permanent solution as quickly as practicable.”

“This case has always been about ensuring patients in acute psychiatric crisis are able receive the care they need immediately and in a facility specially designed for that purpose,” he said.

The state health department declined to comment on pending litigation.

“We are currently in the process of reviewing the order and will respond as appropriate in court,” said Michael Garrity, a spokesman for the New Hampshire Department of Justice, which represents the state agency in court.

In a statement, the New Hampshire chapter of the National Alliance on Mental Illness, an advocacy group, noted the state’s “significant investment” in carrying out a 10-year mental health plan created in 2019 and encouraged the parties to see Thursday’s ruling as a chance to expand on that work.

The problem of ER boarding “should not be considered in a vacuum” but is “directly related to the long-term failure of the State, hospitals, and the health care system generally, to develop a comprehensive system of community-based services for people with serious mental illnesses, including inadequate numbers of inpatient psychiatric beds, especially community-based beds, for those who need that level of care and treatment,” the organization said.

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