Plan To Expand Mental Health Due Process Hearings Crisis Scrapped Amid Safety And Legal Concerns

Apr 10, 2018

The scene last June at the offices of the New Hampshire chapter of the National Alliance on Mental Illness was cautiously optimistic as Gov. Chris Sununu and other leaders gathered to sign into law House Bill 400 — hailed as a major step forward for the state’s mental health system.

“It’s a great day to see so many folks in the room,” Sununu said at the event. “I think that speaks to the importance of the issue, the severity and the timeliness.”

For years, the severity of New Hampshire’s mental health crisis has been measured, at least in part, by the number of mental health patients waiting in hospital emergency rooms. Those patients typically aren’t getting mental health treatment while they wait; they’re just being held, sometimes involuntarily, until a psychiatric bed opens up somewhere else.

At the time of that bill signing last June, a little over 40 adults and children were in that position. Over the last year, the number has spiked intermittently to 70 or more people waiting on a single day.

“It’s almost inhumane,” Sununu said at the event. “And that’s the responsibility that falls on us, helping the hospitals move those patients through the system, helping the families know that there’s actual care not just at the end of the line, but almost as soon as they walk in, within a reasonable amount of time.”

As of Monday afternoon, the number was roughly where it was at the time of the bill signing: 42 adults and 10 kids sitting in hospital emergency departments, awaiting inpatient mental health treatment or evaluations about whether they really needed that treatment in the first place.

And while the state is still moving forward on many of the provisions in that mental health reform bill, one proposed solution — an effort to make sure patients admitted against their will got access to a timely hearing — never got off the ground as planned.

“Most people probably that are being boarded in ERs want treatment and want help,” explains Ken Norton, director of the mental health advocacy group NAMI New Hampshire. “But some of those who are being boarded against their will don’t want help. And we have laws in place to protect their civil liberties.”

Right now, only a few facilities are set up to hold these due process hearings to evaluate whether someone should really be in line for intensive psychiatric treatment. And some patients who have been held in hospital emergency departments against their will and petitioned to be evaluated in this way have waited for more than two weeks before getting a hearing.

With that in mind, part of the mental health reform package passed last year included a provision requiring the Department of Health and Human Services to come up with a plan for making sure patients held involuntarily in emergency rooms got a chance to have a timely hearing. The thinking was that this would better protect patients’ rights and save resources by making sure the waiting list for treatment was limited only to people who truly needed it.

After the bill was signed, DHHS convened a task force that included representation from hospitals, mental health advocates, the New Hampshire Bar Association and the New Hampshire ACLU. The group outlined their proposed solution to the governor and legislative leaders in August:  They suggested looking into whether more hospitals could start offering due process hearings for mental health patients.

DHHS Commissioner Jeff Meyers says it became clear early on that there were a lot of practical questions to consider in how to actually expand these hearings to more hospitals.

“It's not a straightforward matter, it's not just a question of holding a hearing,” Meyers said. “Where's the hearing going to be held in that facility? How is privacy between the lawyer and the client going to be managed? There are patients that need to be represented by a guardian — and how is that going to work?”

Originally, the plan was to have four hospitals – Southern New Hampshire Medical Center, Catholic Medical Center, Speare Memorial Hospital and Dartmouth Hitchcock Medical Center – participate in a 90-day pilot, starting in November and ending in January.

But after a few meetings to prepare for the launch last fall, the group decided it wasn’t going to work out and scrapped plans for the pilot. In a follow up letter sent to the governor and legislative leaders in December, Meyers explained that the working group reached “consensus” that there were “very significant barriers for the implementation of even the pilot program that the workgroup believe to be ‘insurmountable’ in light of the current structure of the hospital system in the state.”

Southern New Hampshire Health System General Counsel Kate Skouteris says from her institution’s perspective, it came down largely to safety concerns.

“Hospitals are extremely restrictive. There's a lot of protocol that needs to be put in place, particularly in an emergency department, which is designed to treat and care for trauma,” Skouteris says. “And it just became clear that the training and needs in order to maintain a safe environment for patients in mental health crisis, particularly surrounding a hearing, was something that was going to be unmanageable and insurmountable.”

But there were other logistical hurdles, too.

“Getting a probable cause hearing orchestrated and held and essentially a mini courtroom stood up in an emergency department became sort of this monumental task, and really was not a good idea,” Skouteris says.

Norton, with NAMI New Hampshire, was also part of the group working on expanding the due process hearings. While he understands hospitals’ concerns about this particular project, he also says “it’s heartbreaking that this practice continues and there doesn’t seem to be a resolution in sight.”

Moving forward, Norton says he’d like to see New Hampshire’s hospitals play a bigger role in dealing with the state’s mental health treatment shortage across the board.

“It would be great to see some more hospitals step up and be able to provide for the mental health of people, which is so tied to their physical health as well,” Norton says.

At the state level, the Department of Health and Human Services is now focusing on other ways to deal with the long delays for mental health treatment that still remain.

A spokesman for Gov. Chris Sununu says he “believes strongly in respecting due process rights of patients” and “will continue to work with the legislature and leaders in the hospital industry to explore ways to ensure patients are getting hearings in as quickly as possible.”

Other mental health reforms passed in the last year remain at various stages of completion.

A total of 20 new transitional housing beds opened in recent months — 14 in Nashua and 6 in Bradford — meant to ease patients’ transition from inpatient treatment back into the community. The state plans to issue a contract for an additional 20 transitional housing beds later this week.

While the state tried to get a hospital or other institution to step forward as a designated receiving facility that could provide inpatient psychiatric treatment, it didn’t receive any official responses to its request for proposals. The funding originally set aside for this contract is now being used to pay for supported housing.

Separately, the state also didn’t receive any outside bidders on its proposal to create new mobile crisis team and apartments. It’s now seeking applicants for a Behavioral Mental Health Crisis Treatment Center instead and is working with the Legislature to revise the language in the original bill to reflect this change in direction.

The state is also working with Antioch University to develop a new 10-year mental health plan.