Ist Circuit Court Allows Emergency Room Boarding Case To Continue

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CONCORD — A federal appeals court sided with patients in mental health crises held against their will in hospital emergency rooms and allowed a federal class action lawsuit to go forward.

The suit filed in U.S. District Court against the state Department of Health and Human Services and its Commissioner Lori Shibinette claims patients held under the state’s involuntary emergency admission law are not given their due process rights as required under state and federal law.

The state claims the plaintiffs, individuals held for longer than three days in an admitting facility, and state hospitals, lack standing to bring the suit and have not proven the state is responsible for the failure to hold due process hearings within the required three days.

But the three-member panel of the US First Circuit Court of Appeals rejected the state’s contention and remanded the case back to the U.S. District Court along with a new state argument that the federal suit is moot because of a state Supreme Court decision on similar issues.

In the complaint filed by John Doe/Jane Doe, plaintiffs argued the state agency is responsible for holding them in hospital emergency rooms while they wait to be admitted to a psychiatric hospital, usually New Hampshire State Hospital.

Under the state’s involuntary commitment law, a person who is a danger to his or herself or others, may be involuntarily committed and must have a probable cause hearing before a judge within three days of being admitted to continue to be held.

In many cases, people are held much longer than three days as they wait for a bed to open in a psychiatric hospital, some as long as four weeks, without a probable cause hearing.

Hospitals claim they are required to provide services to the patients while they are held, and seek restitution and redress.

After the U.S. District Court in Concord dismissed a motion to dismiss the suit by the state, and allowed the case to move forward, the state appealed the decision saying the agency and commissioner were immune from suit under the federal constitution’s 11th amendment and the plaintiff lacked standings.

Instead the state argued that the defendants should be state circuit courts, law enforcement, the state legislature and the hospitals not the agency or commissioner who do not have authority to enforce the law..

“(The Commission) argues that the state circuit court system, law enforcement, the state legislature, and private hospitals are responsible for the class plaintiffs’ claimed injury, because they are the ones responsible for failing to hold a hearing, failing to transport patients to a hearing, failing to appropriate enough money to expand the number of beds at receiving facilities, and the control of emergency departments, respectively,” according to the decision by Justice David Barron.

Hospitals claimed the commissioner has forbidden the release of the patients once they are admitted to an emergency room for emergency mental health services and makes the agency responsible for their care.

The court sided with the hospitals and the plaintiffs saying they do have standing as their federal rights to due process are being violated as well as under state law.

The state also argued the recent state Supreme Court decision in Jane Doe required the state to hold probable cause hearings within three days and Gov. Chris Sununu issued an executive order to expedite hearings and various other actions to address the court decision.

The plaintiffs argued the ruling was narrow and there are no guarantees the agency would meet its requirements and the ACLU-NH, which filed the suit on behalf of the plaintiff, argued despite the ruling people continue to be warehoused in emergency rooms waiting for rooms to open at psychiatric hospitals.

The appeals court said the moot issue should be included when the U.S. District Court hears the remanded case.

“We are dubious that every claim in this case is moot, especially given the limited scope of Jane Doe — for example, Jane Doe did not address any issues implicated by the Takings Clause. But, rather than resolve this newly raised issue on appeal, we conclude that it is prudent to leave it to the District Court to address it in the first instance on remand,” according to the ruling.

Garry Rayno may be reached at

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