June 3, 2021

In its opinion dated May 11, 2021, the Supreme Court of New Hampshire (“New Hampshire Supreme Court”) stated: “The plain and ordinary meaning of RSA 135-C:28, I, RSA 135-C:29, I, RSA 135-C:29-a, and RSA 135-C:31, I, read in light of the purpose of RSA chapter 135-C and in the context of the process for involuntary emergency admission as a whole, required that the plaintiff be transported to a receiving facility immediately upon being certified for involuntary emergency admission and that she be given a probable cause hearing within three days of that certification. Accordingly, we hold that the plaintiff’s confinement in NHH violated RSA chapter 135-C because, upon being certified for involuntary emergency admission and, thus, being admitted to the state mental health services system, she did not receive a probable cause hearing within three days of her admission.”

The Underlying Facts

On August 25, 2020, a Dartmouth-Hitchcock Medical Center in Lebanon (DHMC) psychiatrist signed a certificate for the plaintiff’s involuntary emergency admission, based upon the psychiatrist’s review of the results of examinations and the plaintiff’s conduct as described by the psychiatric resident. DHMC is not a receiving facility within the meaning of RSA 135-C:2, XIV. Moreover, although RSA 135-C:29, I, requires that a patient be “immediately” delivered to such a facility “[u]pon completion of an involuntary emergency admission certificate,” the plaintiff was not delivered to a receiving facility for more than two weeks. RSA 135-C:29, I (Supp. 2020). Instead, because of a lack of receiving-facility beds, she was kept in the emergency room at DHMC for more than two weeks.

The plaintiff was delivered to New Hampshire Hospital NHH on September 11, 2020. On September 15, 2020, which was within three days of her arrival at NHH (not including Sundays and holidays pursuant to RSA 135-C:31, I), the plaintiff was given a probable cause hearing. September 15, 2020 was 17 days (not including Sundays and holidays) from the date on which the DHMC psychiatrist completed the certificate for the plaintiff’s involuntary emergency admission.

On September 16, 2020, the plaintiff filed a petition for a writ of habeas corpus seeking her release from NHH. She argued that her continued confinement in NHH was unlawful because, contrary to RSA chapter 135-C, she had been: (1) held “indefinitely” at the DHMC emergency room; (2) “denied prompt and adequate notice”; (3) “denied a three-day hearing”; (4) “denied review of the grounds of her confinement by an independent fact finder”; and (5) “denied the prospect of release within ten days of her initial confinement.” The court concluded that, because the plaintiff did not receive a probable cause hearing until 17 days after the involuntary emergency admission certificate had been completed (not including Sundays and holidays), her continued confinement in NHH was unlawful, and ordered her release.

New Hampshire Supreme Court Opinion

The New Hampshire Supreme Court concluded: “The parties have made clear that the statutory process is not working as the legislature intended because of the lack of beds in receiving facilities. As a result, individuals who have been certified for involuntary emergency admission “are boarded in private hospitals while waiting for space in designated receiving facilities,” and “[w]hile they wait, those persons are not provided treatment or probable cause hearings.” Doe, 2020 WL 2079310, at *11. Nonetheless, we agree with the federal district court that the defendant “has a duty mandated by statute to provide for probable cause hearings within three days of when an [involuntary emergency admission] certificate is completed.” Id. We do not opine as to how the defendant should comply with its statutorily-mandated duty as our system of government entrusts such decisions to our coordinate branches. Of course, if the legislature disagrees with our interpretation, it is free to amend the statutory scheme as it sees fit within constitutional bounds.”

Source Jane Doe v. Commissioner of the New Hampshire Department of Health and Human Services, No. 2020-0454.

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