Legal News - Court rules against state in emergency room boarding case
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Psychiatric patients being held involuntarily in emergency rooms must be given a chance to contest their detention within three days of their arrival, the state Supreme Court ruled Tuesday.

State law requires probable cause hearings for such patients within three days of an “involuntary emergency admission,” but the state has argued the clock doesn’t start until someone is transferred to an inpatient facility. However, those facilities often have no available beds, leaving patients “boarding” in emergency departments for weeks at a time.

Tuesday’s decision reaffirms a lower court ruling in favor of a woman who spent more than two weeks at Dartmouth-Hitchcock Medical Center’s emergency room before being transferred to the state psychiatric hospital. Justices agreed with the lower court, which said the state has a duty to provide hearings within three days of when a doctor signs off on an involuntary emergency certificate.

“Nothing in the statutory scheme allows a person to be held indefinitely pending delivery to a receiving facility,” the court said in Tuesday’s ruling.

In recent days, more than 80 mental health patients, including record numbers of children, have been waiting in emergency departments for inpatient beds, said Ken Norton, executive director of the New Hampshire chapter of the National Alliance on Mental Illness. Such boarding often aggravates rather than helps mental health conditions, he said, and stands in contrast to the quick treatment provided to those suffering from other illnesses.

Norton said he hopes the state sees the ruling as a call to rapidly improve a mental health system that is overburdened at every stage, from entry to treatment to re-entry into the community.

“During the past eight years thousands of Granite Staters have experienced ED Boarding. When justice is denied to one person it is denied to all,” he said. “Today’s decision on behalf of Jane Doe is a decision in favor of all Granite Staters. We are all Jane Doe.”

A spokesperson for Health and Human Services Commissioner Lori Shibinette did not immediately respond to a request for comment.

The department had argued in part that requiring hearings within three days of the signing of certificates would result in either court hearings being held in private hospitals or courts ordering patients to be released when such hearings do not occur. That would increase the risk that mentally ill people would hurt themselves or others, they said.

The court, however, said such public policy arguments should be made to the Legislature, not the judicial branch.

“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,” the court said.

The ACLU-NH, which has filed a separate class action lawsuit in federal court over the issue, praised the ruling.

“Today’s historic decision is a major victory for mental health advocacy: it recognizes that those being boarded in hospital emergency rooms are human beings entitled to prompt due process,” said legal director Gilles Bissonnette.

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