2 populations: Mental health patients can be housed with inmates who have committed murder
Beatrice Coulter was a volunteer and board member of Citizens for Criminal Justice Reform from July 2015 - April 2016.
CONCORD - Beatrice Coulter is a registered nurse who's worked in the mental health arena for more than 40 years, but she never saw anything like what she witnessed at the Secure Psychiatric Unit inside the state prison.
Patients who have committed no crime are incarcerated there because New Hampshire, unlike 47 other states, has no other place to put them.
The SPU was designed to hold individuals involved in the criminal justice system due to mental health issues, such as those deemed guilty by reason of insanity or those awaiting certification as competent to stand trial.
But it also houses patients who have done no wrong.
Coulter thought she could do some good when she took a job in the unit last year, but lasted only four days. She now works for a community-based mental health organization and identifies herself as an "advocate for ethical mental health treatment."
A national patient advocacy group recently reached out to Coulter and others on the front lines in New Hampshire in preparation for legal action to stop a practice that's been going on since the 1980s.
"We work in all 50 states and the things we hear and deal with regarding people who have mental illness run the gamut," said Frankie Berger, director of advocacy at the Treatment Advocacy Center in Arlington, Va. "But we have never seen anything this egregious."
"The more that I have dug into this, and the more we are interacting with people in New Hampshire who are dealing with this, the worse it gets," Berger said. "People are at wit's end.
"The families who are dealing with this, who have family members in the unit, are besides themselves. Since it is under the Department of Corrections, they feel they can't address this grievance without backlash."
Considered a danger
Individuals whose mental illness is so severe that they are considered a danger to themselves or others can be committed through a legal process to the New Hampshire State Hospital.
If the staff at the hospital determines the patient can't be safely handled there, the patient is transferred to the state prison because the state does not have what are known as "civilly committed forensic beds," meaning secure units in a hospital setting for dangerous but non-criminal patients.
There is a legal procedure for deciding if a patient should be transferred from the state hospital to the SPU. (See related story below.)
Anne Edwards, associate attorney general, said the SPU is a medical unit. "It's not a prison unit," she said. "It holds both civil commitees and it has inmates who have mental health issues from state prison and the county prisons and the local jails."
Edwards acknowledged it's true that patients who have committed no crimes could be housed with inmates who have committed murder. "And the staff is aware of that, and people are managed according to their degree of mental illness and their degree of dangerousness," she said.
The current situation is not ideal but it's legal, Edwards said. "The ideal situation would be to have two secured psychiatric units, but that's not what we have," she said. "But we do believe the system that we have is legal."
It's up to the Legislature to decide whether to change the state's policy, Edwards said. "They'd need to change the law to make sure that we can move civil committees to another place other than the Secure Psychiatric Unit and then that other place needs to be created," she said.
In the end, "It's really more of a capital budget type of issue."
There's also the issue of staffing, Edwards said; there's already a shortage of mental health workers in the state. "So that would be part of the challenge in creating a new secured psychiatric unit of some type," she said.
Earlier this year, state Rep. Renny Cushing of Hampton, ranking Democrat on the House Criminal Justice and Public Safety Committee, sponsored a bill to prohibit the transfer of individuals from the state hospital to the SPU and to authorize the state to transfer patients to a "therapeutic forensic hospital" in another state instead. The bill was sent to interim study.
Kenneth Norton, executive director of the National Alliance on Mental Illness in New Hampshire, said philosophically he understands the concern about housing mentally ill individuals in a prison setting. But he has more concern about the wording of the bill that was introduced.
"We were very opposed to having people moved out of state, because then they're away from their family and their friends, their support system," Norton said.
A fiscal note on the bill states the cost for services in a New York therapeutic forensic hospital in 2013 was $859 per day - or $313,535 annually.
Norton said only a very small number of individuals with mental illness pose a danger to themselves or others, and only a handful land in the SPU each year.
His more immediate concern is the large number of patients who end up staying in hospital emergency departments for days, even weeks, while awaiting beds in the state hospital. (See related story, Page A8.)
Unwelcomed distinction
Berger said New Hampshire, Kentucky and South Dakota are the only states that treat mentally ill people in state prison.
"This narrative to try to make it out to be some free-standing facility that's not part of the prison is just myth," said Coulter. "There is no distinction that is made. They are commingled with individuals who are guilty by reason of insanity. For someone who has been in mental health as long as I have, it was the first time I have ever seen this, and was extremely troubled by it."
The Treatment Advocacy Center is preparing paperwork for a formal grievance with the Civil Rights Division in the federal Department of Justice, which could lead to a lawsuit.
"It will probably take a big lawsuit to get the funding necessary to do the right thing," said Berger, "because it is all about the money. That's not to dismiss the fact that it's a tight budget situation and there are many things that need funding in New Hampshire, but this is so illegal that we have to stop it immediately."
The state is already under court order to spend an additional $30 million to improve its mental health system over the next four years because of a successful class-action lawsuit brought by the Disability Rights Center. But the issue of the Secure Psychiatric Unit was not addressed in that case.
Vulnerable population
Cushing said the population at issue is so small, so vulnerable and so in the shadows that the situation has persisted since the 1980s, despite efforts to address it in 2005, 2010 and again in the last session of the Legislature.
The Legislature's solution to the problem in the 1990s was to write into state law that the prison unit was an acceptable "receiving facility" for civilly committed patients.
"It was done as a stopgap measure in the 1980s, as a result of some sort of violent incident that happened at the state hospital by a psychiatric patient who was civilly committed, and they didn't have the capacity to deal with someone in that situation. So the response was to put them in the prison," said Berger.
"The state Legislature realized in the 1990s that this was illegal, so they waved a magic wand by passing a bill saying it is legal," she said, "but we have a federal Constitution. Just because state lawmakers say it is legal doesn't magically make it legal."
Efforts over the years
The matter came to the attention of the national group in May, when a web tracker it uses to monitor legislation related to the mentally ill turned up Cushing's bill, HB 1541.
It marked the most recent of many efforts over the years to address the problem.
"In 2005, a study committee included a letter signed by then-Attorney General Kelly Ayotte, HHS (Health and Human Services) Commissioner John Stephen, and DOC Commissioner Bill Wrenn, which said we have to do something about this or we are going to get sued," said Cushing. "It's been going on for 30 years. The state has been dumping people in there and everyone thinks it's perfectly fine."
"When we had the hearing earlier this year, they had the audacity to call it a hospital," he said. "There is no one who accredited that unit as a secure psychiatric hospital. No one with any medical credentials calls it a hospital. If it was a hospital, the state would be getting reimbursed by the federal government through Medicaid for the people who are being held there."
However, Norton said he speaks with colleagues in other states that have forensic hospitals. And he said, "If you went to one, it would not look a lot different than what our prison looks like," he said.
Norton said the leadership at the SPU is made up of "really very highly qualified, caring people."
At the hearing on Cushing's bill, no one complained about the quality of care, he said. "The issue was the philosophical issue of people who had not committed a crime being treated in a correctional facility," Norton said. "Yes, I think philosophically that that's wrong, but in terms of the priorities of things that need to be fixed in New Hampshire, that's not high on the list."
Sunday News senior reporter Shawne K. Wickham contributed to this report.
By DAVE SOLOMON dsolomon@unionleader.com
New Hampshire Union Leader