Last month, a public hearing was held at the Department of Health and Human Services regarding the reauthorization of administrative rule He-M 611.
The information gathered at the hearing has been shared with the legislative committee referred to as “JLCAR” or the Joint Legislative Committee on Administrative Rules. The committee will examine this information as it contemplates any needed changes before reauthorizing the rule.
He-M 611 permits the transfer of civilly committed individuals, including those who have not been convicted of a crime, to the Secure Psychiatric Unit located in the New Hampshire State Prison for Men. The SPU is an area of the prison where behavioral health services are provided. It is not an accredited or licensed facility, nor is it subject to review by any outside entity. It has been denied eligibility for reimbursement. It is not a forensic hospital.
Representatives from Advocates for Ethical Mental Health Treatment were in attendance along with other stakeholders and members of the public. There was testimony from a civilly committed individual who spent five years in SPU. He shared his experience of attempting to get medical treatment for a life-threatening medical event. A mother eloquently testified about her mentally ill son and the utilization of solitary confinement in SPU. Another individual testified as to how non-adjudicated civilly committed individuals transferred to SPU receive prisoner numbers.
A lawyer who is contracted by the state to represent individuals being transferred to SPU indicated he currently has a client who has languished in SPU for four months.
Rep. Renny Cushing testified to the intrusive vetting of family members of civilly committed individuals before being allowed to visit. He also testified about the practice of SPU discontinuing certain types of medications that the prison deems as having a “high street value.”
The hearing was conducted by two HHS officials and one from the Attorney General’s Office. It was conducted professionally and respectfully allowing each speaker to complete their testimony. Information was exchanged. It was a refreshing break from the adversarial rancor that is present when this issue is before the Legislature.
He-M 611 contains the language one would expect to see in a rule outlining a process. However, there is a problem with He-M 611. It provides for a process that is a direct violation of numerous civil rights protections and constitutional provisions. Essentially, He-M 611 is a codified process of how to violate a non-adjudicated civilly committed individual’s rights.
Regardless of the process outlined for state bureaucrats to expedite these transfers, the fundamental flaws remain.
The practice of utilizing SPU for non-adjudicated civilly committed individuals has been going on for decades in New Hampshire. The fact a rule was created to implement this unlawful practice reflects a degree of hubris that is nothing shy of stunning. But it does allow those who engage in this activity to legitimize and justify their conduct.
The Disability Rights Center was present. One of its lawyers put forth language that would create enhanced due process protections for the individual being transferred. It is a notable improvement from the current language.
While JLCAR may adopt this language, it should recognize the limitations of this proposed language. This is not a long-term solution to the true issue present here, utilizing SPU as an extension of the behavioral health system.
Even with the enhanced due process language, one will still most likely end up in SPU for some period of time.
When Advocates for Mental Health Treatment contacted DRC in 2015 about the SPU issue, we were advised that it was “red flagged” and they were aware of the “situation.” They declined to provide any further assistance.
DRC has had ample time through the years to do what needs to be done here. It is time they step up their game and provide something more than legal language to a flawed rule.
While the SPU issue is a civil rights morass, it is also a political juggernaut. To clean this mess up, it is going to cost the state, be it a new facility or seeking accreditation for SPU and the required resources to accomplish such an undertaking.
When the Treatment Advocacy Center filed their complaint with the U.S. Department of Justice Civil Rights Division last year, they alleged that the exclusion of the SPU issue from the Amanda D. versus Hassan lawsuit required a closer look. We agree.
It should be understood that this practice is not an outcropping of the current mental health crisis. Rather, it is a legacy of hysteria that found a place in the treatment of the most acutely mentally ill in New Hampshire.
New Hampshire Hospital is not the only point of entry for non-adjudicated civilly committed individuals to enter SPU. Individuals can be transferred from other designated receiving facilities to SPU. Inmates from county jails can be transferred to SPU. The developmentally disabled can be transferred to SPU. Lastly, women reside in the state prison for men because of their presence in SPU.
Historically, significant policy-making and funding for vulnerable populations in New Hampshire has been driven by litigation. It appears this issue will most likely have the same fate. But it does not need to.
It is recognized by many the legal, clinical and ethical failings of this practice. The time has come for honest conversations to commence for the phasing out of this practice. To be replaced by one that complies with the law and evidence based practice. That will hopefully be the one that will protect the most vulnerable amongst us from unlawful incarcerations.
(Beatrice Coulter and Wanda Duryea are the founders of Advocates for Ethical Mental Health Treatment.)