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Bar News - October 18, 2013

Class Certified in Mental Health Suit


A lawsuit against the State of New Hampshire alleging that deficiencies in its mental health system have led to unnecessary institutionalization of people with serious mental illness is now a certified class action.

US District Court Judge Steven McAuliffe issued a 46-page order Sept. 17 certifying the named plaintiffs in the case as representatives of a class defined as "All persons with serious mental illness who are unnecessarily institutionalized in New Hampshire Hospital or Glencliff or are at serious risk of unnecessary institutionalization in these facilities." The words "unnecessarily" and "unnecessary" were added at oral argument after questioning by McAuliffe.

Represented by the New Hampshire Attorney Generalís Office and its contract attorneys, the state is seeking a review of the class certification by the First Circuit Court of Appeals. The state argued class certification was improper due to differences in conditions, treatment needs and preferences among members of the proposed class.

Plaintiffs argued that the stateís reliance on institutionalization as treatment for serious mental health conditions violates the federal Americans with Disabilities Act and the US Supreme Courtís holding in Olmstead v. L.C., by amounting to discrimination against people with mental illness through segregation. The stateís own reports were used as a substantial source of evidence that hundreds of people in New Hampshire either have been unnecessarily institutionalized at NHH or Glencliff, or run the risk of being unnecessarily institutionalized due to a lack of less restrictive community-based services.

Representing the plaintiff class are the New Hampshire Disabilities Rights Center, Devine, Millimet & Branch, the Bazelton Center for Mental Health Law, and the Center for Public Representation. Amy Messer, legal director at the DRC, said plaintiffs and their counsel are pleased with the courtís decision.

"The courtís ruling is consistent with decades of class action civil rights litigation under the ADA and Olmstead, on behalf of people with disabilities," she said.

Plaintiffs seek a declaratory judgment and injunctive relief requiring the state to provide an adequate array of identified community-based treatment services, including mobile crisis services, supported housing, and supported employment.

The United States is an intervenor in the case, siding with the plaintiffs following an investigation into the stateís mental health system.

The case has been scheduled for trial in June.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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