Know Your Rights
What is an “involuntary commitment?”
A court can order you to be held against your wishes at a psychiatric facility, like New Hampshire Hospital or other designated facility, if you are found to have a mental illness that causes you to be a danger to yourself or others. In most cases, the process starts with an Involuntary Emergency Admission or IEA.
Who makes the decision to hold someone involuntarily?
At first, a doctor must examine you, usually at an emergency department, and decide whether that doctor thinks you are a danger to yourself or others due to a mental illness. Once a doctor decides you should be held on an IEA, you are transferred by a police officer to a psychiatric facility or what is known as a designated receiving facility: New Hampshire Hospital, Elliott Hospital in Manchester, Franklin Hospital, Portsmouth Regional Hospital, or the Cypress Center in Manchester.
Recent legislation required DHHS (NH Department of Health and Human Services) to develop due process procedures and a pilot project to assure a hearing before a judge within 72 hours. Unfortunately, no new procedures have been put into place.
DRC-NH will keep you updated on future developments in due process protections.
Once you are at the facility, you get a hearing before a judge of the District Division of a Circuit Court within 3 days, not including Sundays and holidays, to decide whether you meet the IEA standard. An attorney is appointed to represent you at that hearing.
At your hearing, the person who requested the IEA (“the petitioner”) must present enough information to the judge to show that there is “probable cause” to hold you on an IEA, including information from a doctor that supports that you meet the IEA standard. The probable cause standard is fairly lenient; it is the same standard used to determine if there is enough reason to arrest someone for a crime, for example.
If you lose at your hearing and the judge decides that you should be held on an IEA, you can be held up to 10 days, not including Saturdays and Sundays. Before those 10 days expire, one of 3 things may happen:
- The hospital may file a petition for commitment with the Probate Division of the Circuit Court to try to get authorization to hold you longer at the hospital.
- A second IEA may be put into place, but must be based on a new dangerous act by you while you were being held under the first IEA. Another three day period would apply, and a new probable cause determination would have to be made by a district court judge at a hearing.
- You are discharged from the facility, either because the hospital determines that you are no longer mentally ill and dangerous, or because the ten day period runs out.
What is the commitment process?
The Probate Division of the Circuit Court handles requests for longer-term confinement when someone files a petition for commitment. In most cases, a petition for commitment is brought against people who are being held under an IEA, but they can also be filed in relation to a criminal case.
To begin the process, a formal petition must be filed which includes:
- A description of specific acts that show you are in a dangerous condition due to mental illness. The danger alleged in the petition may be either to self or to others;
- A certification from a doctor who has examined you and agrees that you are dangerous due to mental illness;
- A list of witnesses who can testify to the contents of the petition.
The court must hold a hearing on the petition within 15 days, excluding weekends and holidays, from when the petition is filed. A lawyer is appointed to represent you, and a psychiatric examination is ordered. If you are already being held under an IEA, then you can continue to be held while the probate court considers the petition.
The psychiatrist files a report with the court and a copy is given to your lawyer. The psychiatrist must report on whether you are dangerous, the appropriate treatment for you, and whether hospitalization is necessary for that treatment. The psychiatrist should provide an estimate of how long treatment is needed and if appropriate, how long a conditional discharge should last. You, with the help of your attorney, may cross-examine the psychiatrist at the hearing and present other evidence, including witnesses, to contest the proposed commitment.
After the hearing is completed, the judge must decide if you should be committed with a conditional discharge. A commitment with conditional discharge cannot be for more than 5 years. If the judge decides to commit you, you can appeal that decision to the NH Supreme Court. The attorney who represented you at your commitment hearing is required to file your appeal for you but is not required to represent you at the appeal. You will be held while your appeal is pending, unless the hospital determines you no longer need in-patient treatment.
What rights do I have while I am committed?
You do not lose your civil rights just because you are in the hospital. You still have the right to vote, to make contracts, to marry or divorce, and to hold driver’s or professional licenses. If a guardian is appointed by the probate court, the court can take away some of your rights and give them to the guardian.
If I am under a commitment, what happens when my treatment team decides I am ready to be discharged from the hospital?
You will either be released with a conditional discharge or an absolute discharge. Under a conditional discharge (CD), you are released back into the community with a requirement that you get services from your local community mental health center and that you must follow certain conditions. Those conditions are decided by the hospital and the community mental health center before your release, and you must agree to the conditions in order to be discharged. An example of a condition under a conditional discharge is that you follow all of the treatment recommendations made by the community health center, such as taking medications or attending appointments.
An absolute discharge means you are released and no longer under commitment.
What happens if I violate my CD?
You may be returned to the New Hampshire Hospital if you violate your CD. You don’t have to actually be a danger to yourself or others. There are specific procedures that must be followed both before and after you return to the hospital. You have the right to a lawyer to help you challenge the CD revocation, and you can request a hearing.
Can a commitment be renewed?
Yes. The probate court can renew a commitment if you are still dangerous to yourself or others. You can also be recommitted to force you to remain on a conditional discharge if you still need treatment to keep you safe and not a danger to yourself or others. You are entitled to the same safeguards as you were the first time you were committed.