By Wanda Duryea and Beatrice Coulter
New Hampshire’s “Due Process Problem”
In late April the NH Advisory Committee to the United States Commission on Civil Rights (USCCR) released a report secondary to their recent examination of solitary confinement in New Hampshire prisons, jails and mental health facilities. The public was invited to participate through direct testimony or submit written testimony. We at Advocates for Ethical Mental Health Treatment (AEMHT) took the opportunity to share, with NH Advisory Committee to the USCCR, practices in the Secure Psychiatric Unit (SPU). We provided them with various documents and written testimony.
The Committee heard testimony from a cross section of individuals. This included politicians, bureaucrats, former inmates and those who are considered subject matter experts on solitary confinement and its adverse impact on mental health. Through this process the NH Advisory Committee would make a number of determinations including:
-New Hampshire has no consistent definition of solitary confinement and uses a variety of terms to define it;
-Solitary confinement is used on mentally ill individuals despite the recognition of its adverse impact;
-The Department of Corrections does not collect any relevant data that the Committee was able to study to determine the application of solitary confinement on people of color or those with disabilities;
-New Hampshire commingles civilly committed individual with sentenced inmates in the Secure Psychiatric Unit;
– NH Advisory Committee determined that the placement of civilly committed individuals in SPU had implications for violating an individual’s Fourteenth and Fifth Amendment Rights. That in addition to violation of the American with Disabilities Act Title II and the Rehabilitation Act of 1973 Section 504.
There it was once again, the denial of due process which is guaranteed under the Fourteenth and Fifth Amendment of the Constitution-except if you are seriously mentally ill in New Hampshire. The New Hampshire Supreme Court just handed down a ruling that detaining individuals in an emergency room awaiting mental health treatment have been denied due process. Yet somehow the Secure Psychiatric Unit and those impacted by its legal and clinical dysfunction are ignored. Due process was abandoned decades ago for this population.
In early 2020 a ruling secondary to Heath v. Hanks came out of the Merrimack Superior Court ordering the revision of the memorandum of understanding (MOU) between New Hampshire Hospital and the transfer of civilly committed individuals out of the Secure Psychiatric Unit to New Hampshire Hospital. Once again, the lack of due process protections for the individual was recognized by the court. While revising the MOU may seem well intentioned, in reality there should be no process to transfer a civilly committed individual between a hospital and a prison for treatment. Civilly committed individuals do not belong in a prison. New Hampshire has normalized the process of using a prison as a hospital. This practice by healthcare providers has been allowed to continue for decades. It has been a cheap end run around appropriate care and feeds the politics of retribution against those who committed a crime, yet were not convicted due to mental illness.
We at AEMHT have witnessed firsthand the absurd reasoning and tortured logic that the Department of Corrections utilizes to legitimize their actions. In 2016 a DOC official submitted written testimony to the Legislature that SPU was a “forensic hospital” and “though located on the prison grounds is not part of the prison”. That was false then and remains so. The other bizarre theory is the “Separate Door“ one. A DOC official indicated that SPU has a separate entrance. This seems to build upon the ludicrous notion that SPU is somehow an independent entity removed from the prison. Anyone familiar with the prison campus knows it consists of multiple buildings with yes, multiple separate entrances. When there is no legitimacy, magical thinking makes an appearance.
The NH Advisory Committee to the USCCR recommended that the state fund a new facility and end the practice of sending civilly committed individuals to the prison. It also indicated that the state should report and make public the number of civilly committed individuals sent to the Secure Psychiatric Unit. The Department of Corrections, by design is a black hole. There are few if any public documents available. Being there is no specific agency tasked with oversight, the DOC remains without public examination or accountability.
While there are scant regulatory documents, there are other documents. Those being the lawsuits filed in courts about the Secure Psychiatric Unit. In December 2020 a lawsuit was filed in the Merrimack Superior court on behalf of Philp Borcuk. Philp Borcuk died in SPU in December 2017. The complaint alleges and paints a disturbing, violent confrontation between Phillip and correction officers. In a place where cameras abound, there seems to be little to no video of this event. Philip was placed face down on a gurney, gravely injured with his hands cuffed behind his back. Positional asphyxia quickly comes to mind. He would die on the floor of SPU. Another document is an affidavit filed in an out of state court in February 2020 that alleges malpractice. It was written by a licensed provider that was brought in as a consultant. The author of the affidavit was stunned by the failure to treat an inmate’s acute psychiatric illness despite the presence of florid psychosis. At one point according to the affidavit, a medical provider in SPU indicated to the consultant that they do not like to medicate against an individual’s will as “New Hampshire is the Live Free or Die state”. Even the state motto has found its way into treatment. The failure to provide due process is not SPU’s only failing.
Now is the time to finally address this beast. There is political will to do this. Governor Sununu has indicated the need for this to happen. This can no longer be political fodder. Time to save lives, obey the law and restore dignity to a population long forgotten. The most seriously mentally ill among us need protection. While the physical creation of a new facility is the first step., there will still be much to do. The behavioral health community will need to evolve from the SPU mindset to one of evidence-based care that values civil rights and accommodates due process. The criminalizing of mental illness and the subsequent conflating of punitive measures for treatment will not end easily. A culture has been built around ignorance and incompetence that not only has been tolerated, but accepted as a standard of care.
This we suspect will be the greatest challenge when a new facility opens, if ever.
Wanda Duryea
Beatrice Coulter
Advocates for Ethical Mental Health Treatment