June 9, 2022
Transcript:
0:04
Good afternoon.
0:06
I’m Michelle Wagner and I’m with Nami, New Hampshire, working on the first episode of Psychosis Early Serious Mental Illness Initiative.
0:14
Thank you for joining us for today’s webinar, Involuntary Emergency Admissions in New Hampshire.
0:20
A Judicial Primer on Navigating the process.
0:24
Today’s presentation is being recorded and you’ll be able to find it on the Education page of Onward nh.org and the NAMI New Hampshire YouTube page.
0:34
You’ll also receive a follow up e-mail with those links and answers to the questions that will be asked today.
0:40
This is a Zoom webinar.
0:42
Your camera and microphone are off.
0:45
The Q&A feature is working, so please enter any questions you have there.
0:51
Kate Jeracy, who is a Circuit Court administrator, and I will work to get your questions answered.
0:59
Now I’m going to turn it over to the Executive Director of NAMI New Hampshire, Susan Stearns, who will introduce our guests.
1:05
Susan.
1:07
Thanks, Michelle.
1:08
Good afternoon, everyone.
1:10
We’re so pleased to have you all here today and I am particularly pleased to be able to introduce our speaker, Judge David King.
1:18
Judge King serves as the Administrative Judge of the New Hampshire Circuit Court.
1:23
He was initially appointed as the presiding judge at the Coos County Probate Court in January 1990, and in 2007 was appointed Administrative Judge of the New Hampshire Probate Courts.
1:34
In addition to his duties as administrative judge, he also serves as the presiding judge of the complex trust target.
1:42
Prior to becoming a fulltime judge in 2007, he was a partner in the law firm of Way, Stack and King and Colebrook for 22 years.
1:53
He is a 1981 graduate of Plymouth State College and received as JD from Franklin Pierce Law Center, now UNH School of Law, in 1984.
2:03
Judge King has served on a number of nonprofit boards, including 22 years on the Board of Directors of the Upper Connecticut Valley Hospital, with 20 years as its president.
2:15
He is a former member of the New Hampshire House of Representatives, was a delegate to the 17th Constitutional Convention in 1984.
2:24
In 2000, Judge King was named Outstanding Hospital Trustee of the Year by the New Hampshire Hospital Association.
2:32
In 2005, he was awarded the Vicki M Buenal Award for Community Service by the New Hampshire Bar Association, and in 2021 he was presented with the Innovator of the Year Award by the National Council of Juvenile and Family Court Judges at their annual meeting in Saint Louis.
2:51
I personally want to thank Judge King and his colleague Kerry O’Brien, who are here today.
2:58
What they have done in the last few months in creating this mental health docket is truly remarkable.
3:05
So thank you, Judge King and Kerry for being with us today.
3:14
Going to fire up the PowerPoint, Carrie, and while Carrie’s doing that, thank you very much for that introduction.
3:21
Susan presenting with me this afternoon is Carrie O’Brien.
3:25
And I want to thank Susan, Stearns and Nami for this opportunity to talk with you this afternoon about a very important case type for us in the Circuit Court.
3:34
Carrie’s been with the Circuit Court or previously the District Court since 2001 and has a great deal of experience in processing all types of cases and particularly the involuntary emergency admission cases which we’ve been busy with the last several months and carries in charge of the PowerPoint today.
3:51
Because frankly I can’t be trusted to make sure we stay on the same slide.
3:55
So just a real quick information about the Circuit Court.
3:59
For those of you don’t know what we do, we are one of two trial courts in the state.
4:04
We have 34 locations around the state.
4:06
We get about 125,000 new cases a year and of those we take in involuntary admission petitions about 2000 a year.
4:17
So a little less than 2% of our caseload, but certainly among the most important case types on our docket.
4:24
And I think just to start out, the title is pretty significant.
4:27
We’re talking about an involuntary process, which essentially means doing something against someone’s will, potentially taking away someone’s liberty who probably hasn’t committed a crime.
4:41
And the word emergency to me means it’s something that needs to be handled quickly.
4:46
So next slide carry.
4:47
Our goals for today are to try to do sort of an i.e.
4:52
A 101 to talk about the process as it exists today.
4:59
We hope to help you understand the role of the Circuit Court in the i.e.
5:02
A process.
5:03
I’m going to give you a brief history leading up to where we are today with some recent changes.
5:09
We’ll explain the process for filing the petition, review the paperwork that’s filed with the court, and I’ll briefly explain what the hearing process is like.
5:18
And at the end, we’ll save time to answer any questions.
5:22
If we can’t answer a question, we’ll be happy to follow up as needed.
5:26
I know there are some things going on outside the scope of the courts, for example, some rulemaking that we’re not involved in.
5:32
So I won’t be able to answer any questions about that.
5:35
And we may be a little bit repetitive on some of the details.
5:38
And if we, we repeat something, it’s probably because we think it’s really important.
5:43
So bear with us.
5:45
Let me start by talking about some of the recent changes to the process that have been driven primarily by court cases in the federal court and the New Hampshire Supreme Court.
5:54
The process of court ordered hospitalizations has been around since the 1800s.
6:00
It’s been refined and improved over the years obviously as the medical community has learned more about mental illness, develop new treatment modalities and improve medication and the courts have been more focused on individual’s rights.
6:12
Changes in the process have been driven for decades by the legislature and the federal and state courts.
6:18
As you can see on the slide over the past several years, the persistent problem of what’s been known as hospital boarding finally prompted a lawsuit in the federal court in late 2018 brought by a woman who would become known as Jane Doe.
6:33
Jane Doe challenged the time that she was confined in the hospital without having a hearing.
6:38
And at one point in the litigation, as you can see from the slide, I was a name defendant along with several New Hampshire hospitals.
6:46
By statute, the i.e.
6:47
A petition must be scheduled for hearing within three days for the exception of holidays and Sundays.
6:54
So historically the petitions weren’t filed with us until the patient had arrived at the New Hampshire Hospital or another DRF.
7:01
And then the Circuit Court or formally the District Court would schedule that hearing within three days.
7:07
And that worked well when there was sufficient capacity at New Hampshire Hospital.
7:11
The issue that was litigated and continues to be litigated in DOE is when does that three days start?
7:18
Is it when the certificate is signed by the medical provider or is it when the patients are admitted or transferred to the DRF?
7:26
The Federal Court ruled that the three day clock started to run as soon as that certificate was signed by a medical provider.
7:33
While this ruling was not binding on the State Circuit Court, it was later adopted by the New Hampshire Supreme Court.
7:39
This meant that if there was not a bed available at a DRF in order to meet that three day window, the hearing would have to be held while the patient is still in an acute care facility, often in the emergency department.
7:52
It was understandably resistance to this idea.
7:55
Hospitals didn’t want us coming into their space to conduct hearings, and frankly, we didn’t have the resources to do that.
8:02
So for a time after the DOE decisions, the petitions were still not being filed until the patients got transferred in.
8:10
A substantial number of cases were being dismissed because we weren’t holding hearings within three days.
8:16
That came to be known as the Doe dismissal and this was really a no-win situation for everyone, including the courts.
8:23
It was really difficult for judges to hear the evidence in these cases and know that they had to dismiss them because the three days had expired prior to the hearing.
8:32
So in mid March, Governor Sununu called on the Circuit Court to fix the problem.
8:37
We couldn’t fix it by adding beds, so we quickly devised a way to conduct hearings while patients were still in the hospitals.
8:44
There’s simply no other way to meet the statutory deadline.
8:47
And by doing this, we’re able to protect the rights of the patients, give them timely access to the court by holding a hearing and hopefully speed the process up either by discharge or by transfer to a DRF.
9:00
On March 21st of the issue, we began holding hearings with patients in acute care emergency rooms around the state.
9:07
And I just want to pause for a moment to, to say that the stakeholders involved in this have been nothing short of wonderful to work with, especially the hospitals.
9:15
Since the beginning of this new process which we’re going to discuss in a bit.
9:20
We’ve had over 500 hearing scheduled with over 20 hospitals around the state and we’ve had only three cases dismissed for DOE for DOE reasons that we haven’t been able to meet that three days.
9:33
Kerry O’Brien and others have worked very hard with limited resources to make this work, and it’s working very well, quite frankly better than I anticipated when we started.
9:43
I’m told we have a very broad audience this afternoon.
9:45
So I want to start with a high level overview to just generally walk you through the process, explain some of the terms that might be foreign to you, and then we’ll try to get more specific about how to file a petition and what to expect through the hearing process.
9:59
Next slide, Kerry.
10:00
So let’s just start with the basics.
10:02
What’s an I.E.
10:03
A?
10:03
An I.E.
10:04
A is a court process by which someone is admitted on an involuntary basis to a designated receiving facility.
10:12
Designated receiving facility or DRF is a hospital based psychiatric unit or non hospital based residential treatment program designated by the Commissioner of Health and Human Services to provide care, custody and treatment to persons involuntarily admitted to the state mental health system in New Hampshire.
10:28
We have New Hampshire hospital and we have six other DRF’s that are listed on the slide.
10:35
We’re going to talk about some terms that you probably familiar with, but the I.E.
10:40
A petition is something that’s been completely revamped over the course of the last several weeks.
10:46
It’s now a 10 page document, which sounds onerous, but most of the pages you don’t really need to be familiar with.
10:52
Carrie Carrie will walk you through those in a bit and we’ll point out what we think is the important page, the important pages for you to concentrate on the typical parties involved in the I.E.
11:03
A or the petitioner, who is the person who’s filing the petition?
11:07
It could be a family member, could be a clinician, a friend, a neighbor.
11:11
The petitionee or sometimes I’ll refer to as the patient, is the person the most important person in these cases, the person about whom the petition is filed?
11:20
And then as with any court case, we have witnesses who testify in these cases in front of a judge or other judicial officer.
11:29
So let’s just give you a overview of the process, which you can see on this slide.
11:36
The statute permits any person to petition for another person’s admission to the state mental health system on the grounds that the person is a danger to himself or herself or others as a result of mental illness.
11:50
Petitioners are often, but not always, Mental Health Clinicians, sometimes family members, neighbors, or others complete the petition.
11:57
The petition has to state specific acts or actions which the petitioner or a witness observed which is going to warrant the involuntary admission.
12:09
Upon the request for an involuntary admission, the petitionee or patient must be examined by a physician, physician’s assistant, or an APRN and advanced Practice registered nurse who’s been approved by DHHS, and this typically occurs in the emergency department of a local hospital.
12:28
In the event that the petitionee refuses to consent to an examination, the petitioner or a law enforcement officer can sign what we call a prayer and complaint, which you’ll see in that left box in the light Gray.
12:42
And that explains why the examination is sod.
12:45
And if the justice of the peace finds that an examination is necessary, the petitionee may be ordered to undergo an examination and the police officer can actually detain the petitionee and take him or her to the hospital for that purpose.
12:58
Most police agencies should be familiar with this process, although it’s not frequently needed or used.
13:05
At that point, the provider conducts a mental examination and if indicated in circumstances, permit a physical physical examination of the petitionee, and if after that is done, the petitionee meets the criteria for an I.E.
13:19
A
13:19
The doctor signs the certificate of admission.
13:23
Once that certificate of admission is signed, the petitionee is now admitted to the mental health service system and deemed to be in the custody of DHHS.
13:32
And that’s the holding in the dough case.
13:34
So as soon as that certificate is signed, patients in the system, and at that point, the statute actually requires a law enforcement officer to take custody of the petitionee and immediately.
13:47
And that’s what word is in the statute, deliver him or her to a designated receiving facility, which is a specialized mental health hospital that treats I.E.
13:55
A’s.
13:56
In reality today, due to the limited capacity at DRF’s, many I.E.A
14:02
petitionees are still boarded in a local emergency room to await a bed to open in a DRF, but what also happens fairly frequently is that patients are moved between the time the petition is filed and we hold the hearing.
14:17
So if you see the circle, it’s kind of circular arrows.
14:19
For example, someone might be in the Ed at Spear Memorial Hospital up in Plymouth on day one when the petition is filed and we schedule a hearing for day two or day three.
14:31
And in the meantime they get moved to New Hampshire Hospital of Portsmouth.
14:35
And so that’s something that Kerry will talk about in terms of how we shuffle those cases around within the system and still hold to the three days.
14:43
So we have to hold the hearing within three days, excluding Sundays and holidays of the admission, which again is the date that that certificate is signed.
14:52
And if the court finds it was probable cause for the admission, the petitionee can be held for a total of 10 days, not counting Saturdays and Sundays from that from the date of that certificate.
15:03
After 10 days, the petitionee has to be released or DHHS will have filed A petition with the probate court, Probate Division of the Circuit Court, more specifically seeking a longer term involuntary admission.
15:17
But they can also be released earlier, and if the court finds no probable cause, the case is dismissed and the petition is released immediately.
15:25
So Kerry’s put the slide up for the standard that the judge is going to apply in these cases and I’ll read it.
15:32
A person shall be eligible for involuntary emergency admission if he is in such mental condition as a result of mental illness to pose a likelihood of danger to himself or others.
15:42
And that’s the statute.
15:43
Obviously it should be he or she and himself or herself, but I’m just reading from the statute.
15:50
It’s important to know that merely exhibiting symptoms of mental illness, including symptoms such as severe agitation, emotional mobility, delusional thinking, paranoid ideation, all those things we hear about in the hearings, is not sufficient in and of itself to establish that the person is a danger.
16:08
Nor is the mental health professionals testimony that that a person is dangerous enough, absent some evidence of a danger of dangerous conduct, sufficient to warrant the admission.
16:20
So involuntary admission is only warranted when the person’s mental illness is what’s creating the likelihood of danger.
16:27
So let’s break that standard down a little bit.
16:30
Next slide, please.
16:33
Mental illness is specifically defined in 135C for purposes of these cases as a substantial impairment of emotional processes or of the ability to exercise conscious control of one’s actions, or of the ability to perceive reality or to reason.
16:50
When the impairment is manifested by instances of extremely abnormal behavior or extremely faulty perceptions.
16:58
It’s important to know, and this is in the statute, that this does not include impairment that’s caused by epilepsy, an intellectual disability, continuous or noncontinuous periods of intoxication caused by substances such as alcohol or drugs or dependence upon or addiction to any substance such as alcohol or drugs.
17:18
And obviously we all know that Co occurring substance misuse is something that we see in many of these cases.
17:26
Notably, there’s nothing in the statute that requires a person to have a specific or established diagnosis.
17:33
For example, we we don’t need testimony that the person has been diagnosed with schizophrenia or bipolar disorder before we can make a finding of mental illness.
17:43
The second prong of the standard is dangerousness, and there are two general ways that someone can be dangerous, either a danger to themself or a danger to others.
17:55
And the petitioner, when they’re filling out the petition, has to be really specific about what they are alleging to have occurred.
18:02
So let’s go through the four different ways that someone can be found to be a danger to themselves under the statute.
18:14
The 1st way is that within 40 days of completion of the petition, the person has inflicted serious bodily injury on himself or has attempted suicide or serious self injury, and there is a likelihood that the act or attempted act will recur if the admission is not ordered.
18:31
So these are the attempted overdose cases.
18:34
Maybe someone who was cut their wrists or taking a hose from their exhaust system and put it in their car.
18:40
Some something like that, some factual basis that could lead a judge to make a finding under that section of the statute.
18:47
The second part of the statue, which is B, is that within 40 days of completion of the petition, the person has threatened to inflict serious bodily injury on himself, and there was a likelihood that an act or attempt of serious self injury will occur if the admission is not ordered.
19:05
So that’s a specific threat, let’s say with a plan.
19:09
Perhaps a person has a knife and they’re threatening to harm themselves.
19:12
Again, we need to have specific facts that would lead a judge to conclude that that section of the statute is implicated.
19:20
The third section is a little more general.
19:23
It says the person’s behavior demonstrate that he so lacks the capacity to care for his own welfare that there was a likelihood of death, serious bodily injury, or serious debilitation if admission is not ordered.
19:37
So again, we’re looking for specific factual evidence of what occurred.
19:41
It could be someone who is found wandering in the middle of the road at night in the dark on a on a busy Rd.
19:48
hasn’t eaten or bathed for days, you know, perpetually leaves the stove on something that they are doing.
19:54
They’re just not taking care of themselves.
19:56
And if somebody doesn’t intervene, something bad is going to happen.
20:01
Section D of the statute is a little bit more complex.
20:05
It’s rarely used, but I’ll go through it quickly.
20:08
In order to qualify Intersection D of the statute, there are 6 specific things that all have to be met.
20:15
The person has to have been determined to be severely mentally disabled in accordance with rules for a period of at least one year.
20:23
They must have had at least one involuntary admission within the last two years.
20:29
They must have had no guardian of the person appointed.
20:32
They’re not subject to a conditional discharge under the probate commitment.
20:37
They’ve refused treatment determined necessary by a mental health program approved by the department.
20:42
And a psychiatrist at a mental health program approved by the department is determined based upon clinical history, that there’s a substantial probability that refusal to accept treatment will lead to death, serious bodily injury, or serious debilitation.
20:57
Again, you have to meet all six requirements.
20:59
And really, because of Section 6, that’s a section of the statute that needs expert testimony and really require, in my opinion, the testimony of a psychiatrist to meet.
21:09
And it’s rarely used.
21:12
Next slide, Carrie.
21:14
The 2nd way.
21:15
Someone can be dangerous.
21:16
Dangerous as if they’re a danger to others.
21:19
And under this section, they are a danger to others if within 40 days of the completion of the petition, the person is inflicted, attempted to inflict or threaten to inflict serious bodily harm on another.
21:33
Now the statute doesn’t talk about what serious bodily harm is.
21:38
We look to the Criminal Code to see where definitions might be applicable.
21:43
And under the Criminal Code, serious bodily injury means severe, permanent or protracted loss of impairment to the health of or function of any body part.
21:54
And the Supreme Court has said that broken nose, broken bones, you know, wounds requiring stitches, things like that all constitute serious bodily injury.
22:03
But again, you need to be really specific if you’re going under this section of the statute.
22:07
You know, the, the petition.
22:10
He came at me with a baseball bat, pulled a knife, threatened to kill me, perhaps actually physically assaulted somebody.
22:17
That’s the kind of evidence that you need to show the judge under that section and that you need to include in the petition if that’s the way you’re going.
22:26
The inclusion of the 40 day look back window for acts supports a finding of danger to support the finding of danger to suggest that the legislature intended the i.e.
22:37
A to be permitted only when there’s evidence that the person’s a present and immediate danger.
22:44
Kerry’s going to walk you through the forms and you’ll see on page three of the form that there are check boxes that cover all of those choices that I’ve just talked about.
22:53
And on page 4, there’s a section with blank lines where the petitioner needs to describe in some detail what behavior was observed and witnessed in the last 40 days that could lead a judge to make that finding of dangerousness.
23:08
You need to be really specific and please write legibly.
23:12
It’s it’s difficult when we’re in court and I’ve got the petition in front of me, and I can’t make out the handwriting.
23:19
So if you need to have somebody else write it or type it, that would be really helpful.
23:23
But the lawyer and the petitione are going to get this petition in advance of the hearing and if they can’t read what the allegations are, it’s really tough for the lawyers to be able to advise their clients.
23:35
So that’s really important.
23:37
And I’m just going to say that these are obviously difficult cases when we have family members who are petitioners.
23:44
It’s tough to to describe and talk about, you know, what your child, a loved one has done and may have said horrible things.
23:52
And you really don’t want to put that in the petition.
23:54
But you need to tell us because the hearing, the judge is only going to be able to consider what’s in the petition and make sure that you check the box that corresponds with what you’re putting on page 4.
24:06
So just for example, if the if you’ve checked off the box that says that they’re they threatened suicide and in the narrative you write that they came at me with a baseball bat, the petition is going to be difficult for the judge to grant because the allegations don’t match up with the the legal ground that you’re going forward on.
24:26
So make sure that those two match.
24:30
Next slide please.
24:31
Carrie, we call these probable cause hearings.
24:36
The petitioner must establish at the time the certificate of admission was signed, so not at the time of the hearing.
24:43
We actually are focused on the date that that certificate was signed, that there was probable cause that the petitioning met the criteria for admission, and this is a pretty low standard.
24:52
You know this isn’t a criminal case where you need to prove your case beyond a reasonable doubt.
24:56
Probable cause is not defined in the statute, but it’s commonly defined as knowledge and trustworthy information sufficient to warrant a person of reasonable caution and prudence in believing that the allegations made in a document are true.
25:11
So it’s it’s kind of the lowest level of proof that we have in the court system, and it’s clearly nowhere near beyond a reasonable doubt.
25:21
We’ll talk a little bit about the procedure for the hearings.
25:23
Obviously the jurisdiction lies with the Circuit Court.
25:26
We have exclusive jurisdiction over over probable cause hearings for the I.E.A
25:31
petitions and we’ve talked about the timing, but I’m going to, I’m going to say it again and drill down a little bit.
25:37
It’s three days, not counting Sundays and holidays from the date the certificate is signed.
25:43
And if we’re not able to provide a timely probable cause hearing that makes the petitionees continue detention unlawful and will result in the petition of the petition being dismissed, which I referred to earlier as the Doe dismissals, we calculate the date of filing from the beginning, the day after.
26:04
So we don’t include the date the certificate is signed, but we do count the day of the hearing.
26:11
So you take that three day.
26:16
It starts the day after the certificate, you take Sundays and holidays out and you count the third day.
26:21
And that’s when Kerry needs to get that case on the docket.
26:25
So I’m going to turn this over to Kerry at this point.
26:28
He’s going to kind of walk you through what she does when she gets the petition at the courthouse, how she processes the case and how she does everything that needs to be done leading up to the hearing.
26:41
Thank you, Judge King.
26:42
When the court receives the petition, the completed petition from the DRF, the designated receiving facility, it is our job to enter the case into our case management system, schedule the hearing within three days, that of page 8 being signed, Excuse me, provide notice to all of the parties.
27:01
We provide notice via e-mail and I will get to that later on when I show you the petition.
27:07
Then we have to conduct a hearing.
27:09
The judge issues an order which we call a notice of decision and the court employee me at this time will provide notice of that order to all parties the same way that they received the petition and the hearing notice before the hearing.
27:27
Again, when the court receives the completed i.e.
27:32
A petition, a hearing will be scheduled quickly.
27:36
The petition along with the hearing notice will be emailed to, sent and sent to all parties at the time of the hearing.
27:44
The court will call all parties regarding the hearing and will be on the record in the courtroom.
27:51
At this point, different courts are handling the hearings differently depending whether parties are calling in or the court is calling.
27:59
This is for the Concord court which is hearing the majority of them right now.
28:04
The court also has to appoint the an attorney for the petitioning.
28:10
Now we will move on to the petition again.
28:14
As Judge King said earlier, the petition is 10 pages.
28:17
That can seem very long, but I just want you to know as a petitioner, you only have to worry about pages one through 4.
28:27
Again, we ask that you write legibly.
28:30
We have to be able to enter your information into our case management system and be able to read your phone numbers and e-mail addresses to be able to contact you.
28:40
This is page one.
28:41
This is what we call our cover sheet.
28:44
He gives us a brief description of the name of the petitioner or the excuse me, the petitionee, the patient, the name of the petitioner where we can contact the petitioner and the e-mail address for the petitioner can be reached at the bottom part of page one is all regarding the in the hospital.
29:07
The certifying clinician will complete that part.
29:13
Page 2.
29:14
The petitioner does not need to do anything on this page except for read the information if they would like.
29:19
It’s instructions.
29:21
It gives definitions of certain what a petition is, a witness statement, etcetera.
29:28
It explains everything else in the form on Page 3.
29:34
This is the part where Judge King was just discussing the ABC&D of dangerousness etcetera.
29:43
One of those boxes has to be checked in.
29:46
Whichever box is checked has to be described on the next page, which I will show in a moment on this page.
29:54
Again, legible writing.
29:56
We request please your name here.
30:00
The next one is and we have information on the bottom saying what needs to be written there, the name of the person being sought to be admitted or the patient, the person who you are filling out the information about and the address of that person.
30:20
Moving on to page 4, this is the second-half of the petitioner statement.
30:24
I have highlighted on here the areas where the petitioner needs to complete.
30:30
Again, it is your name, your address, again your phone number and you are more than welcome to write more than one phone number not knowing if you will have cell phone service or be in your office that day.
30:45
The middle section of this page is very important date, times and place where the allegations or events happened in this area.
30:55
Right here I put a highlighted information asking for a brief but descriptive synopsis of the events or allegations that have happened that have caused you to file this petition for the patient or petitioning as we call them.
31:13
On the bottom.
31:14
Here you will date, sign and print your name.
31:20
Page 5, page five only needs to be completed if there is a witness or witnesses filing a statement.
31:28
If they are, they will do the same thing that you as the petitioner did on the on page 4, excuse me regarding the witness name, their address, their phone number and the same information.
31:40
Whatever the witness is going to put for their information will go in the middle of the form, including the date, time, place on page 6.
31:54
This is where Judge King was discussing the physical examination of the patient.
31:59
This will be completed at the hospital by a physician, A physician’s assistant or an APRN.
32:08
Page 7.
32:09
Same thing will happen at the hospital.
32:12
This form excuse me will be completed by a physician, physician’s assistant or a PRN at the hospital.
32:22
Now page 8, page 8 is very important to the court as where you can see that yellow, the yellow that is the date right there that the court starts the the time clicking for the hearing.
32:38
That is the date that we call the admission date.
32:41
The doctor will complete this form and once that date is filled in, that is when, as judge can explain, the patient is now in the mental health system and is under the DHHS.
32:59
Page 9 does not get completed by any parties except for the court.
33:04
The court, when the petition is entered, will schedule the hearing based on the three day rule, will put the date of the hearing, the time frame during the hearing.
33:16
For example, in Concord we have normally between 11:15 and 1:15 and to the location of the hearing.
33:25
For these hearings in Concord we are hearing them telephonically and therefore the parties do not need to appear.
33:31
For the hearing.
33:32
The attorney usually appears but all other parties will be called.
33:37
This hearing notice will be sent with the petition to all parties.
33:41
That’s why it’s so important that we have a good e-mail address to be able to e-mail the the attorneys and the petitioners to receive their notice.
33:52
Page 10 of the petition.
33:54
This is a notice of rights to the petitioning or the patient.
33:58
The hospital staff is required to give a copy of this to the petitioner.
34:04
Excuse me to the petitioning meaning that sometimes when we receive these petitions from the local DRS, we do not receive this page or because it’s been ripped off and handed to the patient or we might receive it with a note saying copy given to etcetera.
34:24
And I will give it back to Judge King.
34:26
Thank you, Kerry.
34:27
So I’m going to talk now about the hearing process and that that photo is I guess about nine years old.
34:33
That’s actually the courtroom at New Hampshire Hospital that we helped construct, I guess nine years ago.
34:40
And that’s where we do hold the hearings both for the i.e.
34:43
A’s and the probate commitment hearings when we do them in person at New Hampshire Hospital, again scheduled within three days.
34:50
And they can be done either in person, by video, by telephone or typically some kind of a hybrid depending on where the patient is located.
35:00
So if the patients at New Hampshire Hospital, we’re probably doing the hearing in that courtroom with the patient in the room.
35:07
But the petition, the petitioner or other witnesses may still testify telephonically.
35:14
If the patient’s at a DRF, some of the local courts are conducting those hearings by video.
35:21
And then if they’re in an acute care hospital, which is the vast majority presently, we’re doing them telephonically, which I’ll talk about in a second.
35:31
It is possible to get a continuance beyond that three days.
35:35
The statute says that upon the request of the petitioner or the petitionee, the court may continue the probable cause hearing for up to two days if the court, if the judge can make a showing of good cause.
35:48
But I want to make it clear that doesn’t extend the 10 days.
35:51
So if it goes out to day five that’s all counted towards that total 10 days and typically the petitions motions to continue or because the lawyer hasn’t had a chance to speak with the client or the some other reason a witness may not be available and those motions to continue are pretty liberally granted.
36:10
But again it’s chewing into that 10 day.
36:13
The petition.
36:14
He also has the right to waive the hearing, and if the if the attorney for the petition, he believes that the petitionee can’t make an informed decision to waive probable cause and the court agrees, the court can allow the lawyer to execute the waiver supposed to be in writing under the statute.
36:32
But because we’re doing these telephonically, most judges will allow a waiver with a discussion on the record as to why it’s being waived and to make sure that it’s a knowing waiver.
36:47
There’s a provision in the statute that specifically says that for 48 hours prior to a probable cause hearing, the petitionee must not be given medication or treatment that would adversely affect his judgment or limit his ability to prepare for the hearing, with two exceptions.
37:03
One, if the petitionee or patient gives informed consent, or two, if there’s some kind of a medical or psychiatric emergency.
37:11
Statute further requires that if medication has been given to the patient that the physician prescribing the medication has an affirmative obligation to let us know that either in writing or at the hearing.
37:23
And for patients at DRF’s, this is typically accomplished by submitting something that they call the Med sheet, which is signed by the physician prior to the hearing.
37:33
There are a number of due process protections that we provide at the hearing that are built into the statute.
37:40
The patients or petitionees have an absolute and unconditional right to counsel during the probable cause hearing, including the right to appoint a counsel if they’re indigent.
37:49
We’re very fortunate We have 4 experienced attorneys in New Hampshire who presently take these appointments.
37:54
At the hearing, the petitionee is entitled to present evidence on his her own, her own behalf, and also through the lawyer to cross examine witnesses.
38:04
We’re required to audio record the hearing, which we do.
38:09
All hearings are recorded and we keep a record of those and the petitionee is entitled to notice of his or her rights in simple language that he or she may understand.
38:20
And that’s what Kerry referred to, which is that last page that’s torn off and given to them.
38:25
Now here’s a little bit of a a tricky thing that I’m going to try to talk about in terms of the hearing itself.
38:31
Technically, the statute 135C does not exempt these hearings from the technical rules of evidence, which are the rules of evidence that guide hearings In most cases that we hear.
38:44
In all case types, the judge is going to need to hear relevant, credible evidence.
38:50
And so the best practice for going forward in these hearings is to make sure that whoever witnessed the dangerous acts is available to testify.
39:01
If there was a threat to self or others who who heard it, who saw it.
39:05
The judge is going to look to the totality of the circumstances to determine if there’s evidence that goes beyond a mere suspicion.
39:11
But if there’s absolutely no direct evidence of a dangerous act, it puts the judge in a real difficult position.
39:18
I had a case a few weeks ago where the police were called to a house and most of what occurred that formed the basis for the petitioner occurred in the presence of the police officer who was not called as a witness.
39:30
And so the clinician who was testifying had heard some bits and pieces from the police officer, but really wasn’t there, didn’t see anything.
39:39
And that puts the judge in a pretty difficult predicament because that’s what we call hearsay evidence.
39:44
It’s out of court, evidence that’s offered in court for its truth.
39:48
Now there is an exception to the hearsay rule, which comes up and is very relevant to these cases.
39:54
A family member that’s reporting dangerousness to an emergency room clinician.
40:00
Is giving evidence for purpose of diagnosis of treatment is an exception to the hearsay rule.
40:05
So the clinician can talk about what people told him or her that they needed to make a, you know, medical history and determine symptoms and make a diagnosis.
40:16
That’s not considered hearsay and that’s typically how that gets in.
40:19
But again, best practice is to have the witnesses available to testify at the time of the hearing.
40:26
Next slide, Carrie.
40:30
So who is at the hearing?
40:32
The petitioner and the petitionee have to be there, the judge.
40:37
Or sometimes we use referees when we get in a pinch and we don’t have judges and their orders have to be cosigned by a judge, but generally a judge and a case manager, which right now is Kerry O’Brien, who’s been at all of these hearings since we started in March Let’s talk get into what actually happens at the hearing.
40:57
First of all, these are confidential cases.
41:01
The case itself is confidential.
41:03
The probable cause hearing is confidential.
41:05
The file is closed and is only allowed to be viewed by parties to the case, unless the petitioning somehow waives that confidentiality.
41:14
And the actual process for the hearing is pretty much the same whether we’re doing them in person, whether we’re doing them by video or whether it’s a telephonic hearing or some kind of a hybrid.
41:25
And the hybrid hearings frankly are pretty much the most common with with where we’re doing them right now.
41:34
Most of the hearings are primarily telephonic because that’s the way we’re able to meet that three day standard.
41:42
And I just want to say this out loud as a judge who’s been around for a while, if COVID has taught us anything, it’s that telephonic hearings can work very well, even though they’re really labor intensive for the court and court staff.
41:57
Since March of 2020, the Circuit Court has conducted over 168,000 telephonic hearings across every case type that we we hear.
42:06
So we’ve gotten pretty good at the technology, the records and the ability to make sure that people’s rights are protected even though we may not be able to see everyone in the in the courtroom.
42:18
So what happens at a telephonic hearing is that Carrie is in the courtroom and I’ll just say I’m the judge.
42:25
She dials a speak a speaker phone to get the petitioner on the phone at the number that’s provided.
42:32
And she said sometimes we get multiple numbers.
42:35
We’ve had doctors give us their personal cell phones.
42:38
We’ve had cases scheduled when clinicians were getting the oil changed in their vehicle and we we call them at the auto dealership and they go into a private room to testify.
42:48
But we need to know how to get a hold of you during that window that we’ve given you for the hearing.
42:53
Once we have the petitioner on the phone, we put them on hold and then we call the hospital.
42:58
Kerry calls the hospital to get connected to the patient.
43:03
Sometimes we can call directly to the emergency department, sometimes we call the main switchboard.
43:09
It varies from facility to facility, but again, we have not had difficulty in the hospital.
43:15
Sometimes we get transferred around a bit until we find the room where the patient is actually located.
43:21
But at that point, the patient is provided with a phone and the attorney is either with the patient or is in the courtroom with us.
43:30
Once the parties are in the courtroom, are connected by video or phone, the judge is going to announce the case, make sure that everybody can hear what’s going on and make sure that no one is in the room or on a call that’s not a party to the proceeding.
43:44
Again, to protect the confidentiality of the proceeding, will you typically start by asking the lawyers if there are any preliminary matters that they have and then the judge will swear in the petitioner and any other witnesses who might testify.
43:59
And even though we can’t see the witnesses, typically I’ll ask them to raise their right hand.
44:02
I’ll swear them in just like I would if they were in the courtroom.
44:06
And then typically, I have the petition in front of me.
44:09
I’m looking at page 4, which is where the factual allegations are laid out.
44:13
I will have reviewed that before the hearing.
44:15
And once the petitioner is sworn in, I’ll ask them if they will swear that everything in that petition is true to the best of their knowledge and belief.
44:23
And we’ll kind of go from there.
44:25
And generally, I’ll let the lawyer then take over and ask questions of the witnesses.
44:33
Now remember that when you’re testifying, if you’re the petitioner, you’re going to be limited to what you’ve put in the petition.
44:40
Again, what happened in the last 40 days that’s going to leave the judge to make a finding of dangerousness.
44:45
I recommend that you have the petitioner in front of you.
44:48
We’ve had people calling who couldn’t remember what they put in the petition.
44:51
And then I’m kind of in a tough spot because I’m the judge, I’m neutral and I can’t sort of spin, spoon feed the information to you.
44:58
So best is to have the petition readily available, particularly if it’s not legible.
45:02
And I have to have you read it to me because I haven’t been able to figure out what what’s in there.
45:07
And again, I’ve said this before, but the evidence at the hearing needs to link up to the box that you have checked on page three.
45:16
So if the threat was suicide, that’s the kind of evidence that I need to hear.
45:20
I don’t need to hear evidence about a threat to others.
45:23
And you can check two boxes.
45:24
I mean if it if there were different things that occurred and you want to check 2 grounds, that’s fine too.
45:32
And the judge may grant one, both or none, but would give you more options.
45:37
Now the attorney’s given an opportunity to cross examine the witnesses.
45:40
That’s their job.
45:42
Sometimes it’s uncomfortable, but that’s why they’re there.
45:45
That’s their role.
45:46
And that’s all part of the process.
45:47
And then I will typically give the petitioner a chance to add anything after they’ve been cross examined by the lawyer.
45:55
Then if there are no other witnesses, I’ll turn to the lawyer and ask if they have any evidence that they wish to present.
46:01
They may decide to call the patient or petition need to testify generally that that is the case.
46:07
Generally the patient wants to be heard.
46:10
And then if they may have witnesses to call, typically not, but that’s their chance to put on whatever evidence they want.
46:18
Next slide, at the conclusion of the hearing, the judge has to make a finding based on that legal standard that we’ve talked about.
46:27
That’s up on the screen.
46:29
And then next slide carry.
46:31
The judge has to issue a written decision.
46:34
Now a decision in an I a case has to be entered in writing as soon as possible after the close of the hearing, but no later than the end of the court’s next regular business day.
46:45
But typically the decisions go out the day of the hearing and they’re issued on a court form and notices sent, as Kerry said, to all parties by e-mail.
46:55
Next slide.
46:58
So if the judge makes a finding of probable cause, the commitment is up to 10 days and that doesn’t mean that the patient is going to be held for that full 10 days.
47:08
They could be discharged immediately.
47:10
I could make a finding at 11:00 in the morning that probable cause is found, and they could be discharged at 11 if that’s what the professionals feel is the right thing to do.
47:21
I don’t have any control over the discharge other than to cap it at those 10 days, again beginning at the time that that certificate was filed.
47:29
If I don’t, or if the judge doesn’t make a finding of probable cause, the case is immediately annulled by the court staff and that means that once it’s annulled, the petitione is treated in all respects as if there was never a petition filed.
47:45
Similar to the way that we can annull criminal cases now, sometimes after a petition is dismissed, A subsequent petition will come in, sometimes the same day trying to extend the detention.
47:59
And these petitions are only allowed if they contain allegations of specific facts or actions which occurred subsequent to the initial involuntary emergency admission.
48:10
So just because there’s a feeling that they need to keep the person, that’s not enough basis to warrant a subsequent I.E.
48:17
A.
48:17
That has to be specific acts or actions which would independently support a finding of dangerousness that occurred after that first certificate was signed.
48:30
So that’s the process.
48:32
As you hopefully have seen, it’s designed to move quickly, provide for a short period of hospitalization if necessary to protect somebody from harm.
48:41
It’s it’s not meant to be punitive in any way.
48:43
And while these cases have very short shelf life in our court, they’re extremely important to everyone involved.
48:50
The court’s objective is to prevent someone who is suffering from a mental illness from harming themselves or someone else, while still ensuring that due process and liberty interests are protected.
49:01
Again, as I said at the very outside, this is a this is a snapshot of where we are today, June 9th, 2022.
49:08
The statutory law that we’re governed by has been pretty static for several years.
49:14
What we’ve changed recently is the process to fix what I hope is a temporary problem.
49:20
Of course, we all know that the real problem continues to be a lack of treatment resources, beds at New Hampshire Hospital and probably more critically in the communities where more treatment should be available.
49:31
But by ensuring prompt hearings, we’ve reduced redundancy in the process.
49:36
We’ve allowed some patients to be discharged more quickly where there was no finding of probable cause and hopefully we’re speeding up the transfer process on the back end where probable cause has been been found.
49:48
I want to thank the stakeholders again.
49:51
The hospitals have been such a pleasure to work with.
49:55
I know the last thing that nurses need is one more task like delivering paperwork from the court to a patient or running a phone into a room so that we can conduct a hearing.
50:06
And I am very acutely aware that there’s a nursing shortage in New Hampshire and and actually as I understand it perhaps one of the reasons that one of the wings at New Hampshire Hospital is still closed is because of the nursing shortage.
50:18
So we greatly appreciate the relationship that we’ve developed, carries developed with all of the hospitals around the state.
50:25
And I think when the bed shortage is abated, the non DRF hospitals should be out of the process hopefully sooner rather than later.
50:33
We’ve worked really closely with Commissioner Ship and ADD and her colleagues at DHHS through this process.
50:39
And the attorneys who take these cases for what I’m going to tell you is very little money.
50:44
They have a lot more work to do now because they’re getting the cases earlier.
50:48
They’re contacting the clients on days before the hearing, but they’ve stepped up because they’re dedicated to these clients.
50:57
Process has been pretty labor intensive for us as well.
51:00
I’ve had to pull judges from other dockets and Carry who actually has a another job in the Circuit Court has been dedicated to the i.e.
51:07
A project since early March and literally hasn’t taken a day off since March 21st.
51:13
As we move forward, our plan is to take some funds that Governor Sununu has provided the Circuit Court and create a specialized mental health docket for involuntary cases, both the I.E.
51:24
A’s and what we commonly call the probate commitments.
51:28
We’ve hired 2 case managers that we of course stole from other courts creating vacancies there.
51:34
But they’re going to start next week.
51:36
They’re going to be trained by Kerry and and hopefully take over so that we can get Kerry back to her regular job.
51:41
And while we’re waiting for several judicial appointments, our plan to go forward is to have a dedicated judicial and staff resources to run a very specialized docket with more predictability for hearings and resources for patients, families and others to get quicker, better information about the process.
51:59
I really want to make New Hampshire the gold standard for how we treat people suffering from mental illness who find themselves intersecting with the court system.
52:07
And of course, we’ll keep NAMI and other surprise of our progress as we move this process forward and I look forward to to that process.
52:15
So thank you for taking the time to listen to us today.
52:17
If we have some time, I’m happy to try to answer any questions that you have.
52:22
And again, if I can’t answer the questions, we’ll certainly get back to you through Susan or other means.
52:28
Thank you very much, Judge King.
52:30
That was a wonderful presentation full of important information.
52:34
And thank you for the work you’ve been doing, you and Carrie.
52:38
It’s been a lot of stress and taking up a lot of your time.
52:43
So a few questions here.
52:45
I know this is basic and it’s been shared, but who is able to file the petition?
52:50
Just as a reminder for folks on the call?
52:53
Sure.
52:53
So under the statute, anyone can file a petition.
52:56
Typically it’s a clinician or a family member, but it could be a neighbor.
53:00
It could be anyone who has concerns for this person’s welfare and get the form and fill it out and file it with the court and it will be processed.
53:09
Thank you.
53:09
And when it comes to having the hearing, how long is that typically for folks?
53:16
How long should they count on being on that call with you?
53:19
Typically, if it’s a contested hearing, it’s probably 15 to 20 minutes, can be as short as 5 or 10 minutes.
53:26
Again, the window of time that we give folks right now is 2 hours because we’re doing hearing all over the state on one docket.
53:34
So I had a docket a couple of weeks ago with 12 cases and 10 different hospitals.
53:38
As we move forward with resources, our plan is to compartmentalize those hearings.
53:44
So maybe Concord Hospital has the 9 to 10 slots, and you know Portsmouth has the 10-50 slots.
53:50
So it’s more predictable and we’re not tying people who are busy up waiting for that call.
53:55
But right now it’s typically given in a 2 hour window with about a 15 to 20 minute hearing.
54:01
OK, thank you for that.
54:04
Some folks had questions about criteria.
54:08
How about the criteria of patients and ability to care for self due to severe mental illness, for example, they are erratic.
54:15
Is our behavior confused, agitated.
54:19
OK, so those are those are what I’ll call symptoms, but what we need are facts that demonstrate that because they’re exhibiting those symptoms, they’re somehow putting themselves in danger.
54:29
So as I said, it could be somebody who’s wandering in traffic.
54:32
It could be somebody who’s just, you know, you go in the into their apartment in the refrigerator is empty except for rotted food and the stove is on.
54:41
You know those are those are pretty common things that we hear that could lead a judge to find that this person’s really in a bad situation and and is going to be harmed if we don’t intervene.
54:55
Excellent.
54:56
Couple of questions here.
54:57
On where can they find the form, Where is this located, Carrie, you can find the form on our courts website and we’ll share that information with folks with the e-mail that goes out.
55:12
Yes.
55:12
And I can.
55:12
Yes, I can give you direct access to that.
55:15
That would be great.
55:15
Can you send a link, Carrie, just so they have, because our website is new, we’re working on it.
55:20
It’s, it’s better than it was, but it’s still sometimes hard to find things, especially if you’re in kind of distress and you’re looking for something as important as Michelle.
55:28
I’ll send you a link.
55:29
Perfect.
55:30
Thank you for that.
55:32
There is a question about expanding on when an additional i.e.
55:38
A can be written.
55:41
So I think that’s what I touched on at the end where presumably for some reason either the case timed out or the judge didn’t find a probable cause and the person’s looking to take sort of a second run at it.
55:55
You need to have new facts that occurred after that first certificate was completed, filed with the court and filled out.
56:02
So you can’t just file the same one again and and take another run with maybe even new witnesses or new evidence.
56:10
You get one shot and if you don’t prove your case, you’ve got to come up with new facts.
56:16
And so that’s why we really stress taking the time that you need to make sure that the first petitions filled out completely and you’ve told us everything you need to tell us.
56:27
Great, Thank you for that.
56:32
There is a question about I.E.
56:35
A and I.E.A. being upheld by the court.
56:38
How can someone be declined by New Hampshire hospital and other inpatient hospitals?
56:44
I’m not sure if your expertise will be able to to answer that.
56:50
Well, I’m not sure if I understand the question, but one of the things that I did mention is the scenario, which is pretty common, where we’ve gone through the court process, the judges made a finding of probable cause, but there’s not a bed available.
57:03
Those are not the situations we like, but that’s our reality right now.
57:07
Even though the statute says they shall be transported immediately, if New Hampshire Hospital or Portsmouth or what any of the other DRS.
57:15
Franklin don’t have a bed then they can’t take the person in there, you know, technically they’re being boarded until that bed opens up again.
57:23
I hope this is a temporary situation and that we’re moving, going to move beyond that quickly.
57:29
Thank you.
57:32
There’s a question about a CD.
57:36
Can you please discuss if someone is on a CD but you do not have a clinician to complete an RCD and they go on an I.E.
57:44
A.
57:44
So there’s a lot of terminology here.
57:46
In short, can someone on a CD so conditional discharge fee i.e.
57:51
aid?
57:52
And the short answer is yes.
57:54
But I’ll explain just a little bit.
57:55
There is a I believe one of the DHHS rules says that you can’t do it.
58:01
The statue 135C says you can.
58:04
So general rule of construction is that the statute Trump’s the rule.
58:09
So our interpretation is that someone can be I.E.
58:12
A., even if they’re on a CD.
58:15
And there’s also a question about cooccurring issues.
58:19
If someone has a substance use disorder and also separate mental health diagnosis, how do you ascertain what is causing what?
58:27
Well, we try to parse that out through the testimony and sometimes it’s tricky.
58:31
I have certainly had cases over the last several weeks where the evidence was that the person had a history of mental illness, but on this particular weekend had been consuming a lot of alcohol and and the mom actually said, you know, that was seemed to be the issue.
58:50
And then of course by the time we had to hear a couple days later the patient was pretty coherent and said yeah, I had been on a on a Bender for two weeks and so I ended up dismissing that case even though I had evidence that there was a mental illness.
59:02
My I couldn’t find even to the probable cause standard that the mental illness caused the sort of crazy things that this person did.
59:10
So you really need to try to, if you can sort that out when you’re presenting the case to the judge and the judge, I mean I’m, I will typically ask a few questions to try to see if we can parse that out because it’s not uncommon for sure, right.
59:26
And we are coming to the end of our time together.
59:29
So thank you so much, Judge King, Kate, Kerry for joining us today.
59:35
A recording of today’s discussion will be posted on the Education page of Onward and h.org and the NAMI New Hampshire YouTube page.
59:43
You will receive an e-mail after the presentation today, which will include links to those websites.
59:50
We’ll also have the slides and answers from the Q&A.
59:55
You can reach out to me at m.wagner@namnaminh.org with any questions or comments.
1:00:04
And we do look forward to seeing you next time.
1:00:06
Thank you so much for joining us.
1:00:08
Take care.
1:00:08
Thank you for the invitation.