New Hampshire Bar Journal
2011 Spring, Pg. 58.
Involuntary Treatment For Involuntary Patients- Evolution Of The HE-M 306 Rule In NEW HAMPSHIRE
New Hampshire Bar JournalVolume 52, No. 1Spring 2011Involuntary Treatment For Involuntary Patients- Evolution Of The HE-M 306 Rule In NEW HAMPSHIREBy Alexander de Nesnera, M.D., DFAPA, and David G. Folks, M.D., DFAPAINTRODUCTION
New Hampshire statutes describe a clear mechanism for involuntary hospitalization of individuals suffering from mental illness who are a danger to themselves or others(fn1). These statutes provide for involuntary admission to New Hampshire Hospital (NH Hospital) or other designated receiving facilities (DRFs) with defined due process rights, ensuring appropriate judicial review. Burns(fn2) provides a detailed legal description of the New Hampshire involuntary admission process for the mentally ill. De Nesnera and Vidaver(fn3) describe the process from a clinician's perspective, delineating the care received by mentally ill individuals who meet the criteria under state law.
Involuntary hospitalization to a DRF does not equate to involuntary treatment. Individuals involuntarily admitted cannot leave the hospital voluntarily, but have the right to refuse psychiatric treatment, unless an acute psychiatric emergency is declared. The individual can be treated against his wishes when imminent risk of harm to self or others is present.
The New Hampshire Code of Administrative Rules, under the Department of Health and Human Services He-M Chapter 300 on Rights (Former Division of Mental Health and Developmental Services) describes two rules that define how an individual may receive treatment against their will.
* He-M 305 authorizes short-term involuntary emergency treatment for no longer than is necessary to resolve an emergency,(fn4) but in no case for more than 24 hours in accordance with He-M 305.04(k).
* He-M 306 allows for involuntary treatment, up to 45 days, of individuals hospitalized on a non-emergency involuntary admission.(fn5)
We describe the evolution of the He-M 306 rule allowing longer term involuntary treatment of mentally ill individuals who are involuntarily hospitalized at NH Hospital.
ESTABLISHMENT Of THE HE-M 306 RULE
In the mid 1980's, mental health statutes governing the involuntary hospitalization of mentally ill New Hampshire citizens were significantly revised. The new laws established a process of evaluation, emergency and non-emergency involuntary admission and release of psychiatric patients from NH Hospital allowing a maximum of five years of treatment in collaboration with a community mental health center via a "conditional discharge." These laws did not set forth a process for involuntary treatment of individuals with medication administered against their will after admission to NH Hospital. A significant minority of NH Hospital patients refused psychiatric medication and experienced substantial and progressive deterioration due to serious mental and/or physical illness associated with a mental disorder.
In 1985, the first He-M 306 rule established procedures to determine incapacity for individuals admitted involuntarily to NH Hospital to administer emergency treatment (medication) without the individual's consent. The first iteration of this rule described a psychiatric emergency as "a mental status and act or pattern of behavior by an individual who lacks capacity to make an informed judgement which, if not treated, will result in an immediate, substantial and progressive deterioration of a serious mental illness"(fn6). For involuntary treatment to proceed, the attending physician is required to submit a "request for emergency treatment authorization" form for a review committee providing:
1. The reasons why a treating physician believes that the individual is unable to make an informed judgement with...