On November 10, 2018, the ACLU-NH filed a federal class action lawsuit against the State of New Hampshire challenging its systemic practice of involuntarily detaining people who may be experiencing mental health crises in hospital emergency rooms without providing them any due process, appointed counsel, or opportunity to contest their detention. This practice is known as “psychiatric boarding.” As of October 31, 2018, approximately 46 adults and 4 children were being involuntarily “boarded” in emergency rooms while awaiting admission to a Designated Receiving Facility (DRF) like New Hampshire Hospital. Though emergency room wait times without due process can vary, they can last up to four weeks.
Plaintiffs John Doe, Charles Coe, Jane Roe, and Scott Johnstone were among those individuals “boarded” without any due process. Under New Hampshire law, they should have received a hearing within three days of their involuntary detention in the hospital emergency room, at which time a Circuit Court judge would have determined whether there was probable cause to believe that they were a danger to themselves or others. However, no such timely hearings were provided.
People who present in hospital emergency departments because of a mental health crisis should not be deprived of their liberty without due process. They are entitled to a prompt hearing regardless of the fact that they are confined in an emergency room rather than the state hospital. Providing hearings for people boarded in emergency rooms because of a mental health crisis will ensure that only those who are truly dangerous to themselves or others remain confined.
On April 30, 2020, the Court denied the State's Motion to Dismiss and ruled that the State is obligated to provide due process to those suspected of experiencing a mental health crisis within three days of their detention in the hospital emergency room. On May 4, 2020, the Court certified the case as a class action. On December 18, 2020, the Court denied the State's second Motion to Dismiss, which the State appealed to the First Circuit. On October 26, 2021, the First Circuit affirmed the denial of the second Motion to Dismiss, thereby allowing the federal case to proceed.
Separetely, on February 1, 2021, we filed an amicus brief before the New Hampshrie Supreme Court addressing this issue. On May 11, 2021, in a historic decision, the New Hampshire Supreme Court ruled that the State "has a duty mandated by statute to provide for probable cause hearings within three days of when an involuntary emergency certificate is completed."