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Beatrice Coulter and Wanda Duryea: Awaiting the truth about Secure Psychiatric Unit



For the Monitor
Saturday, December 08, 2018

A recent article by InDepthNH.org has reported that the Secure Psychiatric Unit is the subject of an “ongoing law enforcement proceeding” by the federal government. This information came to light after a Freedom of Information Act request submitted by Rep. Renny Cushing was denied. The U.S. Department of Justice stated in a letter that releasing any information “could reasonably be expected to interfere with law enforcement proceedings.”

While this is a significant revelation, it is not a surprising one. This may also explain the newfound enthusiasm by the state for possibly building a forensic facility. It may also be an opportunity for some lingering questions to finally be answered.

It would seem that the federal government has a full plate when it comes to SPU. Violations abound. With practices utilized by both New Hampshire Hospital and SPU being codified into statute the potential “color of law” violations are an area that hopefully will come under scrutiny by the federal government. Civil rights statute Title 18, U.S.C. Section 242, makes it a crime to willfully deprive an individual of rights protected under the Constitution. This includes acts by federal, state and local authorities who act under the “color of law” in their official capacity.

In recent years state officials have referenced the “state law” that allows them to incarcerate civilly committed individuals in SPU. New Hampshire at times conducts itself as if it has seceded from the Union. Maybe the question of how a civil commitment and a prison sentence became indistinguishable in New Hampshire may also be answered.

In recent weeks several cases have been covered in the media about individuals deemed either “not guilty by reason of insanity” or “incompetent to stand trial.” When an individual is deemed such, it is recognition by the courts that severe mental illness is a mitigating factor in these crimes and treatment is indicated.

In New Hampshire these individuals go to SPU, a prison psych unit. Confinement and some psychotropic medication does not constitute treatment. Both the “not guilty by reason of insanity” and “incompetent to stand trial” designations have become distinctions without a difference. For if these individuals were convicted of these crimes they would go to the prison. These individuals should be in a licensed forensic hospital.

A news article recently appeared about John Hinckley, who attempted to assassinate President Ronald Reagan in 1981. He was found “not guilty by reason of insanity” and civilly committed to a forensic hospital. The article reported on his continued integration into the community with supervision and increasing freedoms. The Hinckley case is what forensic treatment and community integration look like. Hinckley currently lives with his elderly mother in suburban Virginia. When compared to the current practices in New Hampshire, there is no comparison.

The InDepthNH article provided some more details about an inmate named Charles Mealer, who died in SPU in June 2015. Mealer committed suicide after overdosing on medication that was being prescribed and administered to him by the SPU staff. The attorney who represented the family in a lawsuit against the state indicated that part of the settlement included stipulations about safe medication administration practices. The need for such stipulations does provide some visibility into the substandard care delivered in SPU, including the inability of SPU to address its clinical quality issues. This may make SPU a bit safer. However, with no discernible oversight, it is unclear who will enforce it.

There are some other questions that could possibly be asked and answered. That may include some answers from Licensing and Certification as well. Based on the language of the federal regulatory provision Emergency Medical Treatment and Labor Act, or EMTALA, those transfers from New Hampshire Hospital to SPU would appear to be in violation of that regulation. EMTALA, among other things, prohibits the transfer of individuals from a licensed facility eligible for reimbursement (New Hampshire Hospital) to an unlicensed facility not eligible for reimbursement (SPU). The spirit of EMTALA is to safeguard that an individual is receiving the appropriate care in an appropriate facility when transferred from one facility to another. The transfer of an acutely mentally ill patient from a hospital to a prison hardly seems to satisfy that requirement.

EMTALA also takes precedence over state commitment laws. Maybe the feds can clear up that glaring omission as well. Especially since EMTALA has been around since 1986.

Lastly, what happened to Philip Borcuk in the Residential Treatment Unit? Borcuk was an inmate who died in RTU, a unit that co-exists with SPU, in December 2017. There seems to be few answers surrounding his death. The official statement was he died due to “self injurious” behavior. Borcuk’s cause or manner of death have not been released publicly. An autopsy was conducted.

The science spoke and the cause of Mealer’s death became clear. So did the circumstances contributing to his death. The science needs to speak as loudly in Borcuk’s case. Maybe the federal government can provide some answers there as well, particularly to his family. Borcuk was a son and a brother.

So how did it get to this point? It was permitted. No oversight, no accountability and poor funding have been some of the major contributors. The continued conflating of mental illness and criminality has created a culture that may no longer be tethered to the rule of law. Time will tell. We can only hope that the truth is on the way.

The interesting thing about the truth is no matter how delayed, denied or distorted it has been along the way, when it arrives, it remains powerful. Truth does not change. Only attempts to conceal it do. However, truth cannot exist in a vacuum. It needs to serve as a catalyst. In New Hampshire, that may mean finally putting the state on the right side of history.

We believe the truth about SPU, if and when it arrives, will be both potentially disturbing and powerful.

(Beatrice Coulter and Wanda Duryea are the co-founders of Advocates for Ethical Mental Health Treatment.)