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Bar News - November 15, 2013

New Courtroom at State Hospital Increases Respect, Privacy


A Rare Glimpse of New Hampshire’s Civil Commitment Process

Civil commitment hearings were held in the new courtroom at the state psychiatric hospital in Concord on Oct. 24, with Judge David King presiding. This photo was taken immediately after a hearing and does not show any patients.
It could be compared to a criminal trial, except no one has been accused of wrongdoing, and the proceeding is not open to the public.

Instead of trying to prove the elements of a crime, the attorney in the prosecutorial role argues that the “respondent” suffers from a mental health condition and that he poses a danger to himself or others. If the attorney representing the state proves her assertion, the respondent could be confined to the New Hampshire Hospital.

Involuntary emergency admission and involuntary commitment hearings take place five days a week at NHH. Last year, there were 1,962 involuntary emergency admission hearings, which enable a 72-hour hold at the hospital, and 354 involuntary commitment hearings, which can lead to commitment for up to five years.

NH Circuit Court Deputy Administrative Judge David King is one of the only judges in the country who can order the involuntary commitment of a mental health patient for a five-year period. But the longer-term commitments are accompanied by a kind of relief valve – a unique provision in New Hampshire law known as “conditional discharge” – that enables clinical staff at the hospital to release a patient, as long as the person complies with certain conditions, such as adhering to a treatment plan and taking medications as prescribed.

“It’s kind of like a suspended sentence,” King explains. If the conditions are violated, the discharge can be revoked.

Despite the procedural similarities, however, the involuntary commitment hearings at NHH didn’t look at all like criminal trials until recently, because they occurred in a makeshift courtroom, hastily transformed each week from an administrative conference room.

On Oct. 17, the state psychiatric hospital in Concord opened a new legal wing with a larger, more functional, and more traditional courtroom, where involuntary emergency admissions hearings are now held Monday, Tuesday, Wednesday and Friday. The probate court holds involuntary commitment hearings, which are typically longer and involve more witness testimony, on Thursdays.

The new courtroom, adjacent offices, and private waiting rooms – family members and witnesses used to wait in a hospital hallway – marks the latest development in a decades-long partnership between the NH Judicial Branch and the Department of Health and Human Services.

“The goal was really to give them a little more privacy and a little more respect,” said Lynne Mitchell, NHH legal coordinator and the attorney who represents the hospital in the civil commitment hearings.

Judge King has been presiding over these cases for 24 years.

“They’re difficult cases,” he said. “Mental illness is an awful thing. I’ve said to the psychiatrist that if I had a choice between mental illness and cancer, I’d take cancer.”

An outsider observing an involuntary commitment hearing is a rare occurrence, but a patient diagnosed with bipolar disorder recently agreed to allow a reporter to attend a proceeding where he faced a five-year commitment. The man, who is not being identified to protect his privacy, sat with his attorney, Rich Anderson of New London, while Mitchell questioned a mental health worker about an evaluation he conducted when the patient was in an emergency room. During the evaluation, the patient had said he wanted to jump from a tall building.

“How did he phrase that exactly? Did he say he wanted to kill himself?”


“Did he say he wanted to hurt anyone?”


“Do you think he is a danger to himself?”

“Yes, I do.”

The challenging work of attorneys in these cases involves trying to prove or defend against what are often subjective assertions that the patient both suffers from a mental health condition and poses a threat to his safety or that of others.

When Mitchell concluded her questioning of three witnesses, the respondent consulted with Anderson, who then announced that his client wished to testify, despite having been advised against it. Mitchell asked the respondent on cross-examination whether he believed some of his actions at NHH might have made other patients fearful. He laughed, saying, “Oh, yes.”

Anderson objected, arguing that his client could not know how another person was feeling, and King agreed. In truth, the man seemed to have trouble knowing how he himself was feeling, as he alternated from sobbing to laughing throughout the hearing.

Following the proceeding, Anderson said representing clients at these hearings presents unique challenges, which often include trying to understand the client’s position. But it is rewarding. he added, because it helps ensure that patients at NHH get the same respect and due process as everyone else, regardless of their mental state or diagnosis.

New Hampshire Hospital housed more than 2,300 patients at its peak. Today, there are about 125 patients there. This year, 12 more beds were added to keep up with demand for mental health treatment as state funding for the 10 community-based mental health agencies in New Hampshire has been slashed.

Barbara Maloney was legal counsel at NHH starting in 1984, when the hearings took place at the old courthouse on Main Street in Concord. Back then, the cost to transport patients was exorbitant, she said. There was no conditional discharge, and the antipsychotic medications were less effective and had more side effects. Maloney worked with David Peck, who recently retired as reporter of decisions at the NH Supreme Court, to change the state’s mental health laws, helping to craft the conditional discharge system.

The majority of Maloney’s practice now involves representing about half of the state’s 10 community mental health centers, which are among the few mental health care providers who accept Medicaid in New Hampshire. She said the state’s reliance on NHH, rather than providing community-based treatment and residential care, has led to increasing legal caseloads at the hospital.

“The legal part of the mental health process is huge now,” she said. “We are using the conditional discharge process in place of (community-based care).”

Policy and budgetary decisions aside, the court system and DHHS are working hard to provide due process to a population of New Hampshire residents with highly complicated diagnoses.

“It’s just gut-wrenching,” Judge King said in his new chambers at NHH. “There’s nothing fun about coming over here, except that you hope someone is going to get the help they need, so they can live a normal life, which is what they deserve.”

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