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Sovereign Immunity Defense Rejected in Suit to Stop Involuntary ER Detention of Mental Health Patients

Two doctors discussing information on a tablet.

Shot of two young doctors using a digital tablet late at night in a modern hospital

On Monday, the New Hampshire Hospital Association (NHHA) avoided dismissal of its District of New Hampshire case against the State of New Hampshire that alleged that the Commissioner of the New Hampshire Department of Health and Human Services maintained a policy that allowed for the involuntary long-term detention of patients experiencing mental health crises in hospital emergency rooms, prior to transport to an appropriate treatment facility. The Commissioner sought dismissal under sovereign immunity grounds. 

The underlying complaint of NHHA asserted that a patient in an emergency room who is experiencing a mental health crisis potentially warranting long-term involuntary commitment in a treatment facility was entitled to receive appropriate examination for said commitment within three days of first arriving in the ER. If after examining a patient, the examining ER physician determines a patient is experiencing a mental health crisis, the ER physician will issue a certificate authorizing the transfer of the patient from the ER to a DRF. A DRF is defined as “a treatment facility which is designated by the Commissioner to accept for care, custody, and treatment persons involuntarily admitted to the state mental health services system.” 

The pleading further explained that within three days of the involuntary commitment certification, the patient is to then receive, if desired, a due process hearing with a district court judge to challenge the certification. If no due process hearing is desired, the patient is to be transitioned into a DRF within 24 hours. However, the plaintiff asserts that these procedural protections are regularly violated, using an off-the-books policy of the Commissioner known as “psychiatric boarding.” 

NHHA proffered that psychiatric boarding is the practice of holding patients —whether certified or awaiting certification for long term treatment— for an unknown amount of time, irrespective of statutory deadlines for certification, due process hearings, or post-certification transport to a DRF. The plaintiff averred that up to 60 patients at a time can be held in one emergency room for periods of up to 15 days. 

NHHA argued that the Commissioner’s policy of requiring the hospital ERs to hold these patients indefinitely violated the Constitution by operating as an unlawful taking of its property without due compensation nor due process. The Commissioner —in lieu of directly challenging the substance of the plaintiff’s constitutional claims— argued that the claims could not be heard as the Commissioner possessed unqualified immunity to claims rooted in violations of state law. 

The court summarily disagreed with the defendant and denied the Commissioner’s motion to dismiss. The court explained that while the doctrine of sovereign immunity does give state employees immunity in federal courts for claims brought under state law, it does not provide that same immunity for constitutional challenges to the policies of state actors that are simply purportedly authorized by a state statute. 

The plaintiff is represented by Weil, Gotshal & Manges. 

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