Bar Journal - Summer 2007
New Hampshire’s Commitment Law: Treatment Implications
By: Alexander de Nesnera, M.D., DFAPA and Robert M. Vidaver, M.D., DFAPA
New Hampshire has two commitment options: outpatient or inpatient. The outpatient commitment statute is poorly designed and ineffective. The inpatient commitment law is well-structured and is accepted as the most effective way to get individuals needing mental heath treatment the care they deserve. This has led to the development of programs for individuals suffering from mental illness that are more coordinated and focused on community-based treatment and recovery in the real world.
This article will describe the New Hampshire commitment law from a clinician’s perspective, and how this law has improved the care of our most mentally ill individuals.
Description of the Inpatient Commitment Process
New Hampshire Hospital (NHH) is the only state hospital in New Hampshire. It is a 222-bed facility. Approximately 2,000 children, adolescents, and adults are admitted each year 95 percent involuntarily. Initial evaluation of an individual for potential involuntary hospitalization typically occurs in a local emergency room. If the person is felt to meet the criteria for commitment (danger to themselves or others as a result of mental illness), they are sent to New Hampshire Hospital for admission on an Involuntary Emergency Admission (IEA) [see Table 1]. Within three business days of admission, a probable cause hearing is held at NHH where a district court judge hears the evidence regarding the IEA and makes a determination whether there was probable cause for the individual’s involuntary admission.
A finding of probable cause needs to meet the lowest legal threshold (preponderance of the evidence), and if found, allows the treatment team caring for the individual to keep the person involuntarily at NHH for up to ten days. During that time multiple assessments are completed, many aspects of treatment are initiated (medications, rehabilitation treatment groups, individual and group therapy), and many individuals end up being discharged. If at the end of the ten-day period the treating psychiatrist believes the individual is still a danger to themselves or others as a result of mental illness, a petition for involuntary commitment to NHH is initiated. This petition is brought to the county probate court, where the burden of proof is on the State of New Hampshire to show by clear and convincing evidence (a higher legal threshold) that the individual needs involuntary hospitalization and treatment.
At every step of the way the individual is provided legal counsel. During the IEA process, individuals who cannot pay for legal representation are provided attorneys who are contracted by Client and Legal Services of the Office of Operation Support of the Department of Health and Human Services. During the probate process, the county probate court assigns a lawyer to the individual who cannot afford legal representation. In both situations the State of New Hampshire pays for legal representation for indigent individuals. Individuals always have the option of hiring their own lawyer if they have the means to pay for one.
The length of commitment to NHH requested by the state varies from three months to five years. Prior to the court hearing, an independent court-appointed psychiatrist meets with the individual and prepares a report for the probate court judge, rendering an opinion as to whether the patient meets the criteria for involuntary commitment to NHH. If, after the court hearing, the petition for commitment is granted, the individual is allowed to be involuntarily hospitalized at NHH for the length of time of the commitment. The length of time of commitment is determined by the probate court judge.
The length of commitment time, when compared to other states’ commitment standards, may appear harsh or overbearing, yet it allows for flexibility in developing treatment plans for individuals as they proceed with their stay at NHH. A short-term commitment allows for the individual to get treatment for his/her symptoms, and when stabilized to be discharged to the community on an absolute discharge (i.e. a discharge with no conditions needing to be followed). Individuals who are committed for longer periods (6 months to 5 years) typically take longer to stabilize, and when discharged are released on a conditional discharge (CD). A conditional discharge is a three-way agreement between the individual, NHH, and the local community mental health center (CMHC). The CMHC has a legal obligation to provide treatment to individuals who are conditionally discharged from NHH. Conditions for treatment in the community are developed by the CMHC and reviewed by the individual and the NHH treating psychiatrist. If all parties agree to the conditions for treatment, a document is signed by all parties and the individual is conditionally discharged to the community for outpatient treatment follow-up at the CMHC.
Conditions typically state that the individual will take their medications as prescribed, and will meet with their outpatient treating psychiatrist and case manager on a regular basis. Other conditions are added as deemed necessary to allow the individual to function effectively in the community and minimize his/her potential for re-hospitalization.
Individuals who have been conditionally discharged (CD) have agreed to follow specific, individualized conditions while being treated by their local CMHC team during their commitment time. If they abide by all of the agreed conditions, at the end of their commitment time their conditional discharge becomes absolute, and they are under no obligation to continue following the conditions they had initially agreed to when discharged from NHH.
Individuals who do not follow their agreed upon conditions while being treated on an outpatient basis (an example would be not taking their medications as prescribed) can have their CD revoked, and can be sent back to NHH on a revocation of conditional discharge (RCD). This revocation process is different from the IEA process in that the individual is sent directly back to NHH without an involuntary emergency admission petition. Forms are filled out by community mental health center clinical staff (i.e. case managers) in consultation with outpatient treating psychiatrists explaining the specific conditions that the individual did not follow and are sent to NHH with the individual. There is no court hearing (either district or probate) held when the individual returns. Individuals can contest being sent back to NHH, but such hearings are not heard by a judge but held in front of a Department of Health and Human Services hearings officer who works for the Office of Operation Support. Legal counsel is provided to individuals requesting these hearings, as described in the Health and Human Services Rule He-M 609.07, following RSA135-C:52, and the state of New Hampshire pays for legal representation if the individual is indigent. A much more detailed legal description of the New Hampshire commitment process has been described by Burns (8).
Description of the Outpatient Commitment Process
The outpatient commitment process begins the same way the inpatient commitment process does. An individual is admitted on an IEA to NHH, probable cause is found for their admission, and they end up going to probate court for a commitment. At that probate hearing, however, it is decided that the individual will be committed to outpatient treatment at the local CMHC. The individual is not committed to NHH but to the CMHC. This leads to the development of conditions for treatment being developed by the CMHC and the patient, with NHH not involved in the negotiation. An outpatient commitment is a two-way agreement between the individual and the CMHC. The individual immediately leaves NHH and proceeds with outpatient treatment at their CMHC. If they follow their treatment plan, at the end of the outpatient commitment time their discharge becomes absolute. If they do not follow the conditions of their outpatient commitment, the CMHC has to schedule a hearing with the probate court to review the case and to request that the individual be sent to NHH for treatment. It can take weeks for the case to be scheduled and reviewed by the court. In the meantime, the individual may continue to refuse treatment, their mental illness symptoms worsen, and may become a danger to themselves or others. The practical solution to this dilemma has been to bypass the outpatient probate court hearing and admit the individual on an IEA to NHH when they don’t abide by their outpatient commitment agreement. Recently, probate court judges have converted commitment orders into orders for outpatient treatment, allowing individuals to be transported directly to NHH if they fail to follow outpatient treatment recommendations. If this does occur, the CMHC must notify the probate court immediately in writing that this individual was sent back to NHH, and a hearing needs to be scheduled within 15 days of the individuals’ admission to NHH. While this is an improvement, if this option is not specifically ordered, the individual may end up languishing in the community while attempts are made to send them back to NHH for continuing treatment.
The New Hampshire Experience
The outpatient commitment statute is used infrequently due to the cumbersome and inefficient process that needs to be followed to send a patient to NHH if he or she hasn’t followed the conditions of the outpatient commitment.. The inpatient commitment statue allows for patients to be committed to the state hospital, not to the community mental health center. This difference is of utmost importance, and has important implications for treatment of mentally ill patients in New Hampshire, specifically:
1. The state hospital becomes an integral part of the treatment, and in effect centralizes the treatment of the individual. This is in direct contrast to other states, where attempts are being made to eliminate state hospitals due to misperceived notions that they are outdated and ineffective in providing quality care to mentally ill individuals.
2. Mental health services are based on a model that calls for the seriously mentally ill to be supported by a single state system of services divided geographically into ten CMHC’s and centrally supported by NHH. Therefore every individual on a conditional discharge is registered in and receives services from an identified CMHC.
3. The CD is a contractual agreement between the individual, NHH and the CMHC that requires the CMHC to provide the panorama of services required by the individual to remain well and independent. Thus, even as the individual is responsible to utilize the services and supports necessary for recovery, so too the CMHC is obligated under contract to provide those services. A formal conditional discharge letter specifying those services is developed, agreed upon and signed by all parties (including the New Hampshire Hospital CEO) under the conditional discharge regulations. This process is completed prior to discharge.
4. The CD arrangement allows for early discharge of the hospitalized individual with a relatively long-term commitment to receive immediate care from the assigned mental health center. The individual need not remain at NHH until “cured,” but rather may be released to a less restrictive, but highly supportive arrangement including MIMS (Mental Illness Management Service) workers, home visits, aggressive case management and crisis intervention available at the CMHC.
5. Under the inpatient commitment statute, there is much better communication between the state hospital and the community mental health center taking care of the individual. The conditional discharge process engenders a feeling of shared responsibility between inpatient and outpatient treatment teams, leading to increased collegiality. Physicians at the state hospital routinely contact the outpatient treatment provider at the CMHC for information regarding the individuals’ care in the community and, reciprocally, to inform the CMHC treatment provider of the clients’ discharge status. This greatly streamlines the treatment of the individual.
6. There is more rapid re-hospitalization of patients on a conditional discharge whose mental illness symptoms worsen in the community. The CD mechanism, legally, becomes a fail-safe parachute through which individuals are empowered to remain independent yet at the same time are under a legal mandate which facilitates their return to NHH if their condition requires it, ultimately leading to shortened length of stays and better follow up.
7. Individuals on a conditional discharge tend to stay in treatment for longer periods of time, leading to increased compliance with treatment and more consistent care in the community. This is a huge achievement for a patient population considered to be seriously mentally ill and dangerous enough to need long-term treatment in an inpatient setting.
The CD process works in New Hampshire because it combines the legal requirements of a single system with the capacity and obligation to provide an array of services, social supports, counseling, housing and vocational opportunities necessary to achieve recovery, while at the same time obligating the client to follow through on the use of those services for the length of their legal commitment.
Vagaries in the patient’s condition, which might otherwise lead to noncompliance, deterioration and/or self-harm, are curtailed via the patient’s prompt re-hospitalization through a revocation of their CD. Equally important, the hospital is able to discharge patients far earlier because clinicians are confident that patients are going to be handled by a system of services that can provide the necessary ingredients for successful reintegration in the community.
Without those services in place before discharge, the client would remain far longer at NHH. Conversely, because the CMHC is legally responsible for the observation of the client (simultaneous with the provision of services), patients are returned to the hospital far earlier in their downward spiral, and at a point in their illness when treatment is more likely to be more effective more rapidly, and with less of a loss of key community linkages such as housing, relationships and employment.
The shared responsibility between the CMHC and NHH for the individual’s care during their inpatient commitment time contrasts with the CMHC being solely responsible for the individual’s treatment when they are committed to outpatient treatment. While return to NHH via an RCD is possible when inpatient commitment is in place, this option is not available when an outpatient commitment is ordered. This leaves the CMHC with two options when an individual does not follow their prescribed and agreed upon outpatient conditions and becomes a potential danger to themselves or others as a result of mental illness : Petition the probate court to send the individual back to NHH (which may take time to accomplish due to having to schedule a hearing at the probate court) or send the individual back to NHH on an IEA .
An earlier return to NHH via RCD before there is extensive deterioration and loss of function helps to protect individuals against the many personal losses in broken relationships, lost housing, jobs and family ties which foster diminished self-worth. The ability to move individuals easily into and out of the hospital, always under CMHC supervision, offers an antidote to the depersonalization of chronic institutionalization or the shock and helplessness felt by these individuals when released to an uncaring community after long periods of hospitalization.
A review of the conditional discharge process shows that approximately 40 percent of all NHH discharges are conditional discharges, and approximately 25 percent of all NHH admissions are RCD admissions. This very active process is seen as effective and productive by clinicians. [See Table 2]
To achieve this system of services in the 1980’s, the then Department of Behavioral Health created a reimbursement system which restricted the use of the Department’s Medicaid allocation to the CMHC’s, thereby doubling the available state resources for the seriously and persistently mentally ill (SPMI) population. It ensured sufficient dollars were there for the CMHCs and, therefore, sufficient capacity for CD clients in the community. The reimbursement process is a complex of many rules and regulations. One example of these rules allow for certain social workers, as yet unlicensed but working under supervision, to be reimbursed at the CMHCs with Medicaid dollars, a reimbursement mechanism unavailable to non-CMHC providers. The bottom line here was to maintain the financial integrity of the ten CMHCs so that they would have the long-term viability needed to treat the SPMI population.
Were the few New Hampshire dollars available for the SPMI persons to have been dispersed across every provider in private practice across the state, the result would have scattered resources and hindered management of the delivery system, preventing the kind of aggressive case management, support and concentration of services needed by the SPMI population.
With these resources in place the CD process has succeeded in providing needed access to treatment for the most seriously mentally ill individuals in New Hampshire. Without this single system of supports, the legal advantages of the process would be lost, with individuals hospitalized far longer than necessary at NHH , until a number of unrelated providers were found that were willing to treat them. Under the New Hampshire process, the CMHCs are obligated to take every conditionally discharged individual and, with a monopoly of state mental health monies, the CMHCs are also sufficiently endowed financially to ensure the adequate care of those individuals.
New Hampshire’s commitment law has greatly benefited the treatment of individuals suffering from mental illness.
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