CONCORD, N.H. — Before a person is involuntarily committed for emergency mental health treatment, they have the right to a hearing before a judge who makes a determination about whether they need to be admitted.
Right now, some of those hearings are held by telephone — a situation the ACLU of New Hampshire said violates the due process of thousands of people each year, according to a lawsuit filed with the US District Court for New Hampshire.
In the lawsuit against the Department of Health and Human Services and the State Circuit Court System, the ACLU argues hearings must be either by video or in person and that individuals must have access to an attorney and timely access to paperwork.
A federal judge is considering the state’s request to dismiss the lawsuit, on the grounds that the plaintiffs named in the suit don’t have legal standing and that the federal court should not intervene but leave the matter to state courts to resolve.
Sam Garland, a senior assistant attorney general with the New Hampshire Department of Justice, argued it was unlikely the two plaintiffs whose hearings were held by telephone would be harmed by the practice in the future since neither lives in New Hampshire anymore.
Judge Landya McCafferty said she had to make a decision about that issue involving the plaintiffs’ standing — whether they satisfy the legal conditions to bring the case — before considering the other issues Garland raised.
But Gilles Bissonnette, an attorney with the ACLU of New Hampshire, said those who have been involuntarily detained in the past are more likely to experience it in the future. Telephonic hearings amount to a harmful state policy since, he argued, the difference between a hearing over video versus telephone is significant.
“It is vital for our judges in the state to see the individual so they can help make that assessment and, in fact, will help ensure that they are making the correct decisions when they’re deciding whether or not someone should be released or not,” he told members of the press after the hearing Monday.
The ACLU originally filed the class action lawsuit in 2018 and updated it in May 2023 to focus on how the hearings are held, rather than the timing of the hearings, given other updates addressing concerns about the timeliness of hearings. Also in May, a federal judge said the practice of emergency room boarding — the practice of involuntarily holding patients in emergency rooms for days or weeks as they await a treatment bed — must end by May 2024. In July, DHHS agreed not to appeal that order, which requires a patient’s transfer be accepted within six hours of arriving at an emergency room.
According to the complaint, patients were historically transferred to Designated Receiving Facilities immediately after a medical provider at an emergency room completed the necessary paperwork. At the facility, they were informed of their rights, given access to a lawyer, and within three days they would have an in-person probable cause hearing before the New Hampshire Circuit Court to determine if the patient was likely to harm themself or others.
By 2015, the complaint continued, a statewide shortage of beds at the Designated Receiving Facilities started to create a problematic backlog. Instead of being immediately transferred to the appropriate facility, “the Commissioner has responded to this shortage by relying on hospitals to involuntarily detain patients in emergency departments for extended periods of time while they await transfer,” the complaint said.
Bisonnette said federal court intervention is critical in this case, pointing to its prior decision concluding that emergency room boarding violated state law. He said that nudged the state in the right direction.
“We’re asking that this community, that’s not even being charged with a crime, that they have those same protections when their liberty is on the line,” he said.