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Bar News - January 21, 2015


Criminal Law: The Intersection of Criminal and Mental Health Law: An Overview

By:

Criminal defendants struggle with a wide range of behavioral health issues – from substance abuse to personality disorders to severe psychosis – some of which can impede the ability to stand trial and require involuntary admission to a psychiatric care facility.

Although mental illness alone is insufficient to involuntarily admit any person to the mental health system – RSA 135-C:34 requires clear and convincing proof of “specific acts” demonstrating actual or likely serious bodily injury – it may be appropriate to file a civil court action when a defendant has been deemed not competent to stand trial, but “restorable.”

Obtaining timely and consistent court orders from both the criminal and civil courts greatly enhances the opportunity to smoothly transfer the defendant from a place of incarceration to a facility for treatment.

In some circumstances, it may be appropriate to seek transfer of a defendant directly to the Secure Psychiatric Unit (SPU). RSA 623:1 authorizes transfer of a defendant from a correctional facility to SPU. A “623 transfer” form must be completed, to determine whether the defendant’s circumstances and symptoms meet the criteria. SPU treats patients who are extremely dangerous and not capable of safely interacting with other patients except in the most highly secure setting in the state.

Civil Proceedings for Criminal Defendants

For defendants who can be treated in a hospital setting, there are two civil proceedings available, Involuntary Emergency Admission (IEA) and probate commitment. Only the district or probate courts can order involuntary confinement in a psychiatric facility.

An IEA petition may be obtained online in the forms section of the district court website, at a hospital, or mental health center. A properly completed IEA petition contains a two-page petition outlining the person’s dangerous behaviors within the last 40 days, medical and mental health assessments, and an authorization by a physician/APRN certifying that the patient meets criteria for admission. Once the petition is properly signed and submitted, the person is appointed an attorney, and a non-public IEA hearing is convened within three days of admission. If the petition is upheld, the person is held for no more than 10 days (not including Saturdays and Sundays).

A petition for Nonemergency Involuntary Admission, also known as a probate commitment, is available online in the forms section of the probate division page of the court’s website. The petition is filed in the county where the person resides or is located. The court appoints an independent psychiatrist responsible for making a recommendation about the person’s need for psychiatric treatment and an attorney to represent the person.

For an IEA, if it is determined that the person’s mental health symptoms don’t meet criteria, the facility psychiatrist can discharge the person within 10 days. If the treating psychiatrist determines that the person needs additional treatment, a “responsible person” may file the probate petition and the 10-day expiration date of the IEA admission is stayed.

If a probate petition is filed, the court may: 1) dismiss the petition; 2) grant the petition and order involuntary admission to NHH or to SPU (when the person presents a serious likelihood of danger to self or others if admitted to a less restrictive setting); or 3) order the person to submit to some form of treatment other than inpatient treatment on an involuntary basis. This may include treatment at a community mental health program approved by the commissioner of the NH Department of Health and Human Services.

If the probate petition is granted, the court must determine the duration for involuntary admission, which may not exceed five years. Once an order for involuntary admission is granted, the treating psychiatrist may “conditionally discharge” the person at any point.

A person who is subject to an order for involuntary admission, but who has been “conditionally discharged” is required to adhere to a treatment plan at a local mental health center for the duration of the order. If the person does not adhere to treatment, the mental health center is responsible for “temporarily revoking” the person’s conditional discharge and initiating steps to return the person involuntarily to the hospital for stabilization.

Practical Tips

When a defendant has been found not competent to stand trial but restorable and in need of involuntary mental health treatment in a psychiatric facility, it is helpful if the following documents are provided to hospital staff prior to the defendant’s admission:

  • Amended bail order. The defendant’s cash bail order must be converted to personal recognizance (PR) bail while he or she is a patient in the psychiatric facility and specify whether it converts back to cash, or remains at PR, upon the defendant’s discharge, as the defendant may be discharged within a few hours, days, weeks, or months of admission.
  • Charging documents and competency findings. Hospital staff are required to notify the Attorney General’s office of a patient’s discharge date if a patient has been found “not competent” for any “violent” crime listed in RSA 651:5(XIII). Hospital staff need copies of indictments/charging documents and court orders finding the defendant not competent, to accurately provide notice.
  • Evaluations. Providing copies of competency and independent psychiatric evaluations to hospital staff greatly assists assessment of the defendant’s mental health status and provides better opportunities for a smooth transition. Courts may authorize the parties to provide copies of evaluations to the psychiatric facility upon admission. (RSA 135:17-a, VII and RSA 135-C:43(II)).
  • Medical records from the jail. Providing copies of the defendant’s medical records from the House of Correction to the psychiatric facility assists in the smooth transition of care. These are generally provided with a release from the defendant.

There are overlapping court proceedings involved in the transfer of a pre-trial “defendant” from jail to involuntary admission of a “patient” at a psychiatric hospital. Ensuring court orders are timely and coordinated, in addition to communicating with the various facilities responsible for the transfer, is important to ensure that effective, efficient, and humane care can be provided to persons who may have serious and persistent mental illness.

If you have further questions about involuntary admissions to New Hampshire Hospital, you may contact NHH Legal Services at (603) 271-5300.


Lynne Mitchell has been an attorney for DHHS and assigned to New Hampshire Hospital since 2007. She has been in private practice and worked for other government agencies in both Massachusetts and New Hampshire.

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