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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Merrimack
No. 2020-0454
JANE DOE
v.
COMMISSIONER OF THE NEW HAMPSHIRE DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Argued: March 25, 2021
Opinion Issued: May 11, 2021
Simpson & Mulligan, P.L.L.C., of Lebanon (Gary Apfel on the brief and
orally), for the plaintiff.
Gordon J. MacDonald, attorney general (Anthony J. Galdieri, senior
assistant attorney general, Daniel E. Will, solicitor general, and Samuel R.V.
Garland, assistant attorney general, on the brief, and Mr. Galdieri orally), for
the defendant.
American Civil Liberties Union of New Hampshire, of Concord (Gilles R.
Bissonnette and Henry R. Klementowicz on the brief), and Weil, Gotshal &
Manges LLP, of New York, New York (Theodore E. Tsekerides, Aaron J. Curtis,
and Colin McGrath on the brief), for the class plaintiffs in John Doe v.
Commissioner, No. 1:18-CV-01039-JD (D.N.H.), in their individual capacities
and on behalf of themselves and all others similarly situated, as amici curiae.
Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the
brief), for National Alliance on Mental Illness New Hampshire, as amicus
curiae.
Sheehan Phinney Bass & Green, P.A., of Manchester (Michael D.
Ramsdell and James P. Harris on the brief), for New Hampshire Hospital
Association & a., as amici curiae.
HICKS, J. The defendant, the Commissioner of the New Hampshire
Department of Health and Human Services (DHHS), appeals an order of the
Superior Court (Tucker, J.) denying her motion to dismiss and granting the
petition for a writ of habeas corpus filed by the plaintiff, who appears under the
pseudonym “Jane Doe.” The plaintiff’s petition sought her release from New
Hampshire Hospital (NHH) on the ground that she failed to receive a probable
cause hearing within three days of her involuntary emergency admission, as
required by RSA 135-C:31, I (2015). The trial court ruled in her favor, and we
affirm.
I. Factual Background
The following facts either were recited by the trial court or reflect the
content of documents in the appellate record. On August 25, 2020, a resident
physician of adult psychiatry prepared a complaint for a compulsory mental
examination of the plaintiff. The resident averred that the plaintiff was “in
need of involuntary emergency admission” as set forth in an accompanying
petition and that she would not consent to a mental examination. A justice of
the peace ordered the compulsory mental examination to take place and
ordered law enforcement to take custody of the plaintiff and deliver her to the
emergency room at Dartmouth-Hitchcock Medical Center in Lebanon (DHMC).
Hanover police executed the order and brought the plaintiff to DHMC.
In the accompanying petition, the resident described the plaintiff’s
“specific dangerous acts or behaviors” demonstrating that she “so lack[ed] the
capacity to care for [her] own welfare that there [was] a likelihood of death,
serious bodily injury, or serious debilitation” if her involuntary emergency
admission were not ordered. Physical and mental examinations of the plaintiff
were conducted at the direction of a DHMC psychiatrist, who had been
2
approved by a qualifying community mental health center to certify involuntary
admissions. That day, August 25, based upon her review of the results of
those examinations and the plaintiff’s conduct as described by the psychiatric
resident, the psychiatrist signed a certificate for the plaintiff’s involuntary
emergency admission. The certificate stated that, in the psychiatrist’s opinion,
“the criteria of RSA 135-C:27 [were] satisfied, as the [plaintiff was] in such
mental condition as a result of mental illness that [she] pose[d] a serious
likelihood of danger to self or others.” See RSA 135-C:27 (2015) (setting forth
the criteria rendering a person eligible for involuntary emergency admission).
The certificate did not identify the receiving facility that could “best provide” the
plaintiff with the requisite “degree of security and treatment.” See RSA 135-
C:2, XIV (2015) (defining “receiving facility”).
DHMC is not a receiving facility within the meaning of RSA 135-C:2, XIV.
Moreover, although RSA 135-C:29, I, requires that a patient be “immediately”
delivered to such a facility “[u]pon completion of an involuntary emergency
admission certificate,” the plaintiff was not delivered to a receiving facility for
more than two weeks. RSA 135-C:29, I (Supp. 2020). Instead, because of a
lack of receiving-facility beds, she was kept in the emergency room at DHMC
for more than two weeks.
NHH is a receiving facility under RSA 135-C:2, XIV. See RSA 135-C:26, I
(2015). According to the plaintiff, her attorney was advised on September 2,
2020, that there were 60 people then waiting for admission to NHH, and the
plaintiff was “tenth in line.” In a September 3, 2020 petition for a writ of
habeas corpus seeking her release from DHMC, plaintiff’s counsel stated that
the plaintiff was being kept in a windowless room in the emergency department
against her will. Plaintiff’s counsel further stated that, despite being detained
in the emergency room since August 25, 2020, the plaintiff had “not been
provided with an involuntary emergency admission hearing before an
independent fact finder” or been afforded “any opportunity to challenge
whether there exist[ed] probable cause for her continued detention.”
The plaintiff was delivered to NHH on September 11, 2020. On
September 15, 2020, which was within three days of her arrival at NHH (not
including Sundays and holidays pursuant to RSA 135-C:31, I), the plaintiff was
given a probable cause hearing. September 15, 2020, was 17 days (not
including Sundays and holidays) from the date on which the DHMC
psychiatrist completed the certificate for the plaintiff’s involuntary emergency
admission.
The plaintiff filed a motion to dismiss the probable cause proceeding,
arguing, among other things, that her involuntary emergency admission was
unlawful because she had been held for 18 days at the DHMC emergency room
without a probable cause hearing, had been “denied her statutorily mandated
3
three-day hearing,” and had been “denied release within ten days of her initial
confinement.” As recommended by a Referee (B. Kissinger, R.), the Circuit
Court (Spath, J.) denied the plaintiff’s motion to dismiss and found probable
cause for the plaintiff’s involuntary emergency admission.
On September 16, 2020, the plaintiff brought the instant petition for a
writ of habeas corpus seeking her release from NHH. She argued that her
continued confinement in NHH was unlawful because, contrary to RSA chapter
135-C, she had been: (1) held “indefinitely” at the DHMC emergency room; (2)
“denied prompt and adequate notice”; (3) “denied a three-day hearing”; (4)
“denied review of the grounds of her confinement by an independent fact
finder”; and (5) “denied the prospect of release within ten days of her initial
confinement.”
The defendant moved to dismiss the plaintiff’s petition, arguing that the
three-day period for providing a probable cause hearing does not begin to run
until the person is delivered to a designated receiving facility. The superior
court disagreed, concluding “that when RSA chapter 135-C is considered as a
whole, the involuntary emergency admission and the rights accruing to those
so admitted to the state mental health system are not tolled until the person
arrives at the receiving facility, but are triggered when the [involuntary
emergency admission] certificate is complete.” The court observed that RSA
chapter 135-C “contemplates the person’s prompt delivery to a receiving facility
without the delay that occurred here.” The court concluded that, because the
plaintiff did not receive a probable cause hearing until 17 days after the
involuntary emergency admission certificate had been completed (not including
Sundays and holidays), her continued confinement in NHH was unlawful, and
ordered her release. This appeal followed.
II. Discussion
In an appeal from a grant of a petition for a writ of habeas corpus, we
accept the trial court’s factual findings unless they lack support in the record
or are clearly erroneous, and review its legal conclusions de novo. See Barnet
v. Warden, N.H. State Prison for Women, 159 N.H. 465, 468 (2009) (concerning
the denial of a petition for a writ of habeas corpus); see also State v.
Santamaria, 169 N.H. 722, 725 (2017) (applying the standard of review that we
use in an appeal from the denial of a petition for a writ of habeas corpus to an
appeal from the dismissal of a petition for a writ of coram nobis).
“The procedural prerequisite for a court’s consideration of a petition for a
writ of habeas corpus is an allegation of a present deprivation of a protected
liberty interest.” Brennan v. Cunningham, 126 N.H. 600, 603-04 (1985)
(quotation omitted). “[C]ivil commitment for any purpose constitutes a
significant deprivation of liberty that requires due process protection.”
4
Addington v. Texas, 441 U.S. 418, 425 (1979); see In re Scott L., 124 N.H. 327,
330 (1983) (noting that “the deprivation of liberty inherent in civil commitment
is subject to significant due process requirements”). Indeed, “[t]he private
interests at stake in civil commitment proceedings, loss of liberty and social
stigmatization, are substantial and parallel those at risk in the criminal
context.” In re Richard A., 146 N.H. 295, 298 (2001); see Addington, 441 U.S.
at 425-26 (recognizing that “involuntary commitment to a mental hospital after
a finding of probable dangerousness to self or others can engender adverse
social consequences to the individual”).
The trial court ruled that the plaintiff’s continued confinement in NHH
was unlawful because she “did not receive a probable cause hearing within
three days of her emergency admission.” On appeal, the defendant argues that
the probable cause hearing in this case was timely because it occurred within
three days (not including Sundays and holidays) of the plaintiff’s admission to
NHH. According to the defendant, an involuntary emergency admission does
not occur until a patient is physically accepted at a receiving facility for mental
health treatment. The defendant contends that “the . . . language, context, and
structure” of pertinent RSA chapter 135-C provisions as well as DHHS’
“longstanding administrative rules demonstrate that an [involuntary emergency
admission] to the state mental health services system occurs when a patient is
present at, accepted by, and therefore admitted to, a receiving facility.”
The plaintiff counters that she did not receive a timely probable cause
hearing because the hearing in this case took place 17 days from when the
certificate for her involuntary emergency admission was completed. The
plaintiff argues that her involuntary emergency admission was not to a specific
facility, but rather was to the state mental health services system, and that her
admission to the system took place as soon as the DHMC psychiatrist certified
that the plaintiff was “in such mental condition as a result of mental illness
that [she] pose[d] a serious likelihood of danger to self or others.”
Resolving the issues in this appeal requires that we engage in statutory
interpretation. We review the trial court’s statutory interpretation de novo.
Polonsky v. Town of Bedford, 171 N.H. 89, 93 (2018). We are the final arbiter
of the intent of the legislature as expressed in the words of the statute
considered as a whole. Id. We first look to the language of the statute itself,
and, if possible, construe that language according to its plain and ordinary
meaning. Id. We interpret legislative intent from the statute as written and
will not consider what the legislature might have said or add language that the
legislature did not see fit to include. Id. We construe all parts of a statute
together to effectuate its overall purpose and to avoid an absurd or unjust
result. Id. Moreover, we do not consider words and phrases in isolation, but
rather within the context of the statute as a whole, which enables us to better
discern the legislature’s intent and to interpret statutory language in light of
5
the policy or purpose sought to be advanced by the statutory scheme. Id.
“When a statute’s language is plain and unambiguous, we need not examine its
legislative history.” Sutton v. Town of Gilford, 160 N.H. 43, 54 (2010).
A. RSA chapter 135-C
We begin by reviewing the relevant statutory scheme, RSA chapter 135-
C. As the title to the chapter indicates, RSA chapter 135-C creates the “New
Hampshire Mental Health Services System.” (Bolding and capitalization
omitted.) The chapter enables DHHS to “[e]stablish, maintain, and coordinate
a comprehensive, effective, and efficient system of services for persons with
mental illness,” RSA 135-C:1, I(a) (2015), “known as the mental health services
system,” Petition of Sawyer, 170 N.H. 197, 199 (2017). See RSA 135-C:3
(2015). The defendant supervises, and DHHS administers, the state mental
health services system. Id.; see Petition of Sawyer, 170 N.H. at 200. “The
policies, practices, and procedures laid out in the chapter are intended to
create a comprehensive and efficient system for addressing mental health
issues and treatment needs and for accomplishing the purposes and goals of
the chapter,” which include preventing “mentally ill persons from harming
themselves or others.” Doe v. Commissioner, New Hampshire Department of
Health and Human Services, Civil No. 18-cv-1039-JD, 2020 WL 2079310, at *8
(D.N.H. April 30, 2020) (quotation omitted); see RSA 135-C:1, I(c) (2015).
The State delivers mental health services to eligible individuals through
community mental health programs with which it contracts, see RSA 135-C:7
(2015), and through NHH and “any other facility approved by the [defendant]”
and designated as a receiving facility. RSA 135-C:26, I; see RSA 135-C:2, XIV
(defining “receiving facility” as “a treatment facility which is designated by the
[defendant] to accept for care, custody, and treatment persons involuntarily
admitted to the state mental health services system”).
RSA chapter 135-C establishes separate processes for voluntary and
involuntary admissions. For a voluntary admission, one must apply “to an
approved community mental health program or to a receiving facility.” RSA
135-C:12, I (2015). “The program or facility” to which the person has applied
“shall determine the [applicant’s] eligibility . . . to receive services from the state
mental health services system and shall notify the applicant of the eligibility
decision within 15 days after receipt of the application.” RSA 135-C:12, III
(2015). A person who is “severely mentally disabled” is automatically eligible
for admission to the state mental health services system. See RSA 135-C:13
(Supp. 2020), :2, XV (2015) (defining “severely mentally disabled” for the
purposes of RSA chapter 135-C).
The provisions regarding involuntary admissions include general
provisions that apply to both emergency and non-emergency involuntary
6
admissions, see RSA 135-C:20-:26 (2015); provisions that apply only to
involuntary emergency admissions, see RSA 135-C:27-:33 (2015 & Supp.
2020); and provisions that apply only to involuntary non-emergency
admissions, see RSA 135-C:34-:54 (2015 & Supp. 2020). Because this appeal
concerns an involuntary emergency admission, we focus upon the provisions
governing such admissions.
“The involuntary emergency admission of a person shall be to the state
mental health services system under the supervision of the [defendant].” RSA
135-C:28, I (Supp. 2020). A person is “eligible for involuntary emergency
admission if he [or she] is in such mental condition as a result of mental illness
to pose a likelihood of danger to himself[, herself,] or others.” RSA 135-C:27.
Such admission “may be ordered upon the certificate of an approved” medical
service provider, provided that, within three days, the provider either has
conducted, or has caused to be conducted, a mental examination of the person,
and, depending upon the circumstances, a physical examination. RSA 135-
C:28, I. The approved medical service provider “must find that the person to be
admitted meets the criteria of RSA 135-C:27.” Id. The defendant is required to
“maintain a list” of all such approved medical service providers. Id.
In addition, the certificate must detail the examinations conducted and
state the specific act or actions of the person that satisfy the criteria of
involuntary emergency admission. Id. Moreover, the approved medical service
provider must “inform the person of the designated receiving facility in the
mental health services system” to which he or she will be transported “upon
the facility location being identified.” Id.
“Upon completion of an involuntary emergency admission certificate
under RSA 135-C:28, a law enforcement officer shall,” except under
circumstances not relevant to the instant case, “take custody of the person to
be admitted and shall immediately deliver such person to the receiving facility
identified in the certificate.” RSA 135-C:29, I. “Following completion of an
involuntary emergency admission certificate . . . and before custody of the
person is accepted by a law enforcement officer . . . , the certificate may be
rescinded and the person who is the subject of the certificate released” if: (1)
transfer of the person’s care is accepted by “[a] mobile crisis team” under
contract with DHHS, an “assertive community treatment team operated by a
community mental health program,” or a “community-based provider”; or (2)
the approved medical service provider who completed the certificate “finds that
the person no longer meets the criteria of RSA 135-C:27.” RSA 135-C:29-a, I, II
(Supp. 2020).
“Before any judicial hearing” on the propriety of a person’s involuntary
admission “commences, the client or the person sought to be admitted shall be
given written and oral notice” of his or her right to be represented by counsel
7
and to have appointed counsel if he or she is indigent. RSA 135-C:24 (2015);
see RSA 135-C:22 (2015) (entitling “a client or a person sought to be admitted
to a program or facility to legal counsel prior to and during any judicial
hearing” conducted under RSA chapter 135-C). “At the receiving facility, any
person sought to be involuntarily admitted for involuntary emergency
admission shall be given immediate notice” by the facility administrator or his
or her designee about the right to counsel, to have appointed counsel if the
person is indigent, to apply for admission on a voluntary basis, and to consult
with counsel. RSA 135-C:30, I-IV (2015). The person must be given written
notice of these rights within 12 hours. Id.
“Within 3 days after an involuntary emergency admission, not including
Sundays and holidays, and subject to the notice requirements of RSA 135-
C:24, there shall be a probable cause hearing in the [circuit court] having
jurisdiction to determine if there was probable cause for involuntary emergency
admission.”1 RSA 135-C:31, I. At the probable cause hearing, the burden is
on the petitioner to show that probable cause existed for the involuntary
emergency admission. Id. The court is required to issue its decision as soon
as possible, “but not later than the end of the court’s next regular business
day.” Id.
“If a receiving facility has not been designated to receive or maintain
custody following a probable cause hearing” of a person who has been
involuntarily admitted on an emergency basis, “the facility shall, within 24
hours, transfer the person to a receiving facility which has the proper
designation.” RSA 135-C:31, V (2015).
Under RSA 135-C:32, a person shall not be admitted for an involuntary
emergency admission “for longer than a 10-day period, not including Saturdays
and Sundays, unless: (1) a subsequent petition for involuntary emergency
admission” containing allegations of specific acts or actions occurring after the
initial involuntary emergency admission is completed and the admission is
ordered by an approved medical service provider; or (2) a request for a judicial
hearing on the issue of involuntary admission under RSA 135-C:34-:54 has
been timely filed with the circuit court. RSA 135-C:32 (Supp. 2020); see RSA
490-F:18. A person who has been involuntarily admitted on an emergency
basis must be discharged when: (1) there has been a finding of no probable
cause by the court, see RSA 135-C:31, I; or (2) the administrator of a receiving
1 Although RSA chapter 135-C refers to the “district court” and the “probate court,” those
references are “deemed to be to the New Hampshire circuit court” pursuant to RSA 490-F:18. See
RSA 490-F:18 (Supp. 2020). The circuit court is a court with statewide jurisdiction, RSA 490-F:1
(Supp. 2020), and consists of three divisions: a probate division, a district division, and a family
division. RSA 490-F:3 (Supp. 2020). “The circuit court shall have the jurisdiction, powers, and
duties conferred upon the former probate and district courts and upon the former judicial branch
family division by RSA 547, RSA 502-A, and RSA 490-D.” Id.
8
facility has decided that the person no longer meets the criteria established by
RSA 135-C:27. RSA 135-C:33, I (2015).
B. Constitutional Considerations
The doctrine of constitutional avoidance informs our construction of RSA
chapter 135-C. Under that doctrine, we will construe a statute “to avoid
conflict with constitutional rights wherever reasonably possible.” State v. Ploof,
162 N.H. 609, 620 (2011) (quotation omitted).
RSA chapter 135-C contains “significant . . . safeguards” designed “to
minimize the risk of erroneous deprivation of liberty due to civil commitment.”
In re Richard A., 146 N.H. at 299. For instance, given that involuntary
admissions “generally turn on medical evidence,” the statutory scheme requires
that such evidence be contemporaneous with the court hearing. Id. (describing
the process for an involuntary non-emergency admission). For an involuntary
emergency admission, the person must be examined within three days of the
completion of the certificate for admission, see RSA 135-C:28, I, and be
afforded a probable cause hearing within three days of his or her involuntary
emergency admission, see RSA 135-C:31, I.
The statutory scheme “also incorporates safeguards to preserve the
ability of the named individual to meaningfully contest the petition,” In re
Richard A., 146 N.H. at 299, such as the right to counsel, see RSA 135-C:22,
and the right to notice about the right to counsel, see RSA 135-C:24. See
Vazquez-Robles v. CommoLoCo, Inc., 757 F.3d 1, 2 (1st Cir. 2014) (observing
that “[n]o principle is more firmly embedded in American jurisprudence than
this one:” when a state curtails a person’s liberty, “that person is entitled to
notice and an opportunity to be heard”). Moreover, even if a person is
erroneously involuntarily detained on an emergency basis under RSA 135-
C:27-:33, “the statutory scheme provides mechanisms for immediate release.”
In re Richard A., 146 N.H. at 299; see RSA 135-C:33, I.
C. Analysis
We now turn to the issue in this case — whether the plaintiff’s statutory
rights under RSA chapter 135-C were violated because she did not receive a
probable cause hearing until 17 days after she was certified for involuntary
emergency admission. Based upon our review of the statutory scheme and
consistent with our duty to avoid interpreting the statute as unconstitutional,
we conclude that the plaintiff’s statutory rights were violated.
Under the plain meaning of RSA 135-C:28, I, a person is involuntarily
admitted on an emergency basis to the “state mental health services system,”
9
not to a specific facility. RSA 135-C:29, I, requires that, “[u]pon completion of
an involuntary emergency admission certificate,” the person must be delivered
“immediately” to the receiving facility identified in the certificate. See RSA 135-
C:29, II (Supp. 2020) (providing that delivery may be by ambulance or law
enforcement at the discretion of the “health care provider who is authorized to
order involuntary emergency admission”). The plain language of RSA 135-
C:31, I, entitles the person to a probable cause hearing within three days “after
an involuntary emergency admission, not including Sundays and holidays.”
The time for a probable cause hearing, therefore, is triggered by the completion
of a certificate, not by the person’s delivery to a designated receiving facility.
These statutory provisions contemplate that a person’s admission to the
state mental health services system and delivery to a receiving facility are to
take place nearly simultaneously. See RSA 135-C:29, I, II (requiring law
enforcement or an ambulance to “immediately deliver” the person to a receiving
facility “[u]pon completion of an involuntary emergency admission certificate”).
As the United States District Court for the District of New Hampshire
concluded in a similar case, “involuntary emergency admission into the mental
health services system . . . occurs when an [involuntary emergency admission]
certificate is completed. Following certification, the statutory procedures
require immediate delivery of the certified person to a designated receiving
facility and a probable cause hearing within three days after certification.”
Doe, 2020 WL 2079310, at *11.
Nothing in the statutory scheme allows a person to be held indefinitely
pending delivery to a receiving facility. See id. at *9. “There is also no
statutory requirement for re-examination, re-evaluation, or re-certification of
the person when that person is delivered to a designated receiving facility,
which underscores the conclusion that admission to the mental health services
system has already occurred before delivery, that is, at the time of
certification.” Id.
Once the certificate for an involuntary emergency admission is
completed, the person at issue is not free to leave, but, rather, is deemed to be
in the custody of DHHS. Under RSA 135-C:29-a, a person for whom an
involuntary emergency admission certificate has been completed may be
released only if the certificate is rescinded “before custody of the person is
accepted by a law enforcement officer.” Thus, as the federal district court
concluded in Doe:
Completion of the [involuntary emergency admission] certificate
carries with it immediate significant consequences. Certification
establishes at the outset that the person is likely to be a danger to
himself, herself, or others. Because of that determination, the
10
person is admitted to the state mental health services system
under the supervision of the [defendant] and is at that point placed
in the custody and control of the [defendant].
Id. (quotation omitted).
The plain and ordinary meaning of RSA 135-C:28, I, RSA 135-C:29, I,
RSA 135-C:29-a, and RSA 135-C:31, I, read in light of the purpose of RSA
chapter 135-C and in the context of the process for involuntary emergency
admission as a whole, required that the plaintiff be transported to a receiving
facility immediately upon being certified for involuntary emergency admission
and that she be given a probable cause hearing within three days of that
certification. Accordingly, we hold that the plaintiff’s confinement in NHH
violated RSA chapter 135-C because, upon being certified for involuntary
emergency admission and, thus, being admitted to the state mental health
services system, she did not receive a probable cause hearing within three days
of her admission.
Relying upon dictionary definitions of the words “involuntary,”
“emergency,” and “admission,” the defendant argues that an involuntary
emergency admission is “the act or practice of accepting someone into a
treatment facility as an inpatient against her will because of a sudden or
unexpected occurrence demanding prompt action.” The defendant asserts that
the receiving facility is the “treatment facility” and that, therefore, an
involuntary emergency admission occurs when the receiving facility “accepts a
patient for mental-health treatment on an inpatient basis against his or her
will because of a sudden or unexpected occurrence demanding prompt action.”
The defendant’s interpretation rests upon construing certain words in
isolation, instead of in context, which is contrary to our statutory interpretation
principles. See Petition of Carrier, 165 N.H. 719, 721 (2013). The defendant’s
interpretation also ignores the plain language in RSA 135-C:28, I, which
provides that involuntary emergency admission is “to the state mental health
services system,” not to a receiving facility. Moreover, the defendant’s
interpretation loses sight of “the policy or purpose sought to be advanced by
the statutory scheme,” id., which is to allow for the involuntary admission of a
person on an emergency basis in appropriate circumstances consistent with
the constitutional command that she receive due process. Although “we first
look to the plain meaning of words to interpret statutes, it is one of the surest
indexes of a mature and developed jurisprudence not to make a fortress out of
the dictionary[,] but to remember that statutes always have some purpose or
object to accomplish.” Clare v. Town of Hudson, 160 N.H. 378, 384 (2010)
(quotation omitted).
11
In addition, the defendant’s construction “ignores the significance of the
certification process and the logical progression of events provided by” RSA
135-C:27-:33. Doe, 2020 WL 2079310, at *10. “Certification is the mandatory
first step in the admission process, which changes the legal status of the
[involuntary emergency admission]-certified person.” Id. Such a person “could
not be taken into custody and delivered to a designated receiving facility
without first being admitted to the mental health services system.” Id. As
envisioned by the legislature and as required by the plain meaning of the
pertinent statutes, the process of an involuntary emergency admission is
intended “to progress logically” and seamlessly “through a series of steps,”
beginning with the completion of an involuntary emergency admission
certificate, continuing with immediate delivery to a receiving facility, and
ending with the probable cause hearing. Id.
The defendant observes that “[s]ince at least 1981, [DHHS’]
administrative rules have reflected an understanding that an ‘involuntary
emergency admission’ occurs upon physical presence at a designated receiving
facility.” The defendant urges us to defer to DHHS’ longstanding interpretation
of an “involuntary emergency admission” because it is the agency charged with
administering RSA chapter 135-C. We decline to do so.
Although “it is well established in our case law that an interpretation of a
statute by the agency charged with its administration is entitled to deference,”
that deference is not absolute. Appeal of Town of Seabrook, 163 N.H. 635, 644
(2012). We are still the final arbiter of the legislature’s intent as expressed in
the words of the statute considered as a whole. Id. And, we will not defer to an
agency’s statutory interpretation when, as in this case, it clearly conflicts with
the statutory language or is plainly incorrect. Id. “It is well settled . . . that
administrative officials do not possess the power to contravene a statute.”
Petition of Strandell, 132 N.H. 110, 119 (1989) (quotation omitted).
“Administrative rules may not add to, detract from, or modify the statute which
they are intended to implement.” Id. Here, we do not defer to the defendant’s
statutory interpretation because it contravenes the plain meaning of the
statutory scheme.
Relying upon the use of the future tense in some of the statutory
provisions pertaining to what occurs before a person arrives at a designated
receiving facility and the use of the past tense in some of the statutory
provisions pertaining to what occurs after a person arrives at such a facility,
the defendant argues that an involuntary emergency admission does not occur
until a person arrives at a receiving facility. Compare RSA 135-C:28, I (stating
that an approved medical service provider must find that “the person to be
admitted” satisfies certain criteria and that “admission shall be made to the
facility” (emphases added)), :29, I (requiring, upon completion of the
involuntary emergency admission certificate, that law enforcement “take
12
custody of the person to be admitted” (emphasis added)), with RSA 135-C:31, I
(stating that a probable cause hearing must occur “after an involuntary
emergency admission” to determine whether “there was probable cause for
involuntary emergency admission” (emphases added)).
However, statutory provisions that, even under the defendant’s
construction, govern post-admission events use phrases like “the person
sought to be admitted” and “shall be.” See RSA 135-C:30, I (providing that,
“[a]t the receiving facility, any person sought to be . . . admitted for involuntary
emergency admission shall be given immediate notice . . . and written notice
within 12 hours” of certain rights), :31, IV (“For 48 hours prior to the hearing
the person sought to be admitted shall not be given medication or treatment
that would adversely affect his judgment or limit his ability to prepare for the
hearing . . . .”). In context, therefore, we conclude that phrases like “the person
sought to be admitted” merely identify the person who is the subject of the
involuntary emergency admission, and that the phrase “shall be” merely
indicates a mandate. See In the Matter of Bazemore & Jack, 153 N.H. 351,
354 (2006) (“It is a general rule of statutory construction that . . . the word
‘shall’ makes enforcement of a provision mandatory.”); American Express Travel
v. Moskoff, 144 N.H. 190, 191 (1999) (concluding that rule providing that a
conditional default “shall be vacated” denotes a mandatory duty (quotation
omitted)).
The defendant argues that our construction “functionally reads” RSA
135-C:30 and RSA 135-C:55 “out of [the] statute.” RSA 135-C:30 requires that
an involuntarily admitted person be advised of certain rights “[a]t the receiving
facility.” RSA 135-C:55 provides, in pertinent part, that certain statutory rights
“shall only apply to . . . persons who have been admitted to receiving facilities.”
However, our statutory interpretation recognizes that certification and, thus,
admission to the state mental health services system, and delivery to a
receiving facility are intended to occur together. Accordingly, we disagree with
the defendant that our statutory interpretation renders RSA 135-C:30 and RSA
135-C:55 superfluous.
Relying upon a case from another jurisdiction construing a different
statutory scheme, see Massachusetts General Hosp. v. C.R., 142 N.E.3d 545
(Mass. 2020), the defendant argues that “RSA 135-C:27-:33 contemplate that
the act of filling out an [involuntary emergency admission] petition and
certificate is separate and distinct from an [involuntary emergency admission]
to a receiving facility.” The defendant argues that, because the two acts are
“separate and distinct,” it is only when the individual arrives at and is admitted
to a receiving facility that he or she is entitled to a probable cause hearing,
among other rights. Because the Massachusetts statutory scheme in C.R.
differs markedly from RSA 135-C:27-:33, the defendant’s reliance upon C.R. is
misplaced.
13
Under the Massachusetts scheme, a qualified mental health professional
(or a police officer when one is not available) may restrain a person and apply
for the person’s hospitalization for a three-day period in a facility authorized for
that purpose when the qualified mental health professional or police officer
believes that the failure to hospitalize the person would create a likelihood of
serious harm by reason of mental illness. C.R., 142 N.E.3d at 550. Once
transported to the approved facility, if the application for the person’s
hospitalization was made by someone other than an authorized physician, the
person must be given a psychiatric examination immediately upon the person’s
reception at the facility, and is admitted to the facility only if the examiner
determines that the failure to hospitalize the person would create the likelihood
of serious harm by reason of mental illness. Id. at 551. After the three-day
period elapses, the person must be discharged unless the person remains on a
voluntary basis or the facility’s superintendent applies to have the person
committed. Id. Thus, the Massachusetts scheme provides for two evaluations
of the person: a preliminary evaluation conducted before a mental health
professional or police officer applies to have the person admitted to an
approved facility and another evaluation conducted after the person has been
transported to the facility. See id. at 550-51.
The issue in C.R. was whether the three-day window for the evaluation at
the facility begins when the person is initially restrained. See id. at 547. The
Massachusetts Supreme Judicial Court concluded that the initial restraint and
preliminary evaluation of the person “is separate from the three-day
involuntary hospitalization period,” id., and, therefore, the three-day period
does not begin when the person is initially restrained and preliminarily
evaluated, see id. at 547, 553.
According to the court, “the Legislature envisioned an expedited,
emergency process that took no longer than was necessary to transport the
patient to an [emergency department], conduct a preliminary evaluation
necessary to determine whether further evaluation and hospitalization . . . was
necessary, and apply to such a facility for admission.” Id. at 553. However,
the Massachusetts statute “contains no specific time period” for the
preliminary evaluation, id. at 547, and because of the difficulty in finding beds
for “patients with high behavioral acuity or significant comorbidities,” the time
needed to apply to a facility for admission has been “unexpectedly extended”
beyond the short period that the legislature envisioned. Id. at 554. Based
upon the record before it, the court found “no realistic alternative” to boarding
individuals in need of involuntary inpatient psychiatric care in hospital
emergency rooms. Id.
However, the court declined to “impose a specific time deadline” into the
statute governing the preliminary evaluation because the statute did not
14
include a deadline and the executive and legislative branches were aware of,
and were working to resolve, the problem. Id. at 557. Nonetheless, the court
“strongly encourage[d] the Legislature to identify a time period capping the time
of [emergency department] boarding to clarify the over-all . . . time deadline
and avoid future constitutional difficulties and to do so as expeditiously as
possible.” Id. at 559-60.
The Massachusetts statutory scheme, as described in C.R., differs from
RSA 135:27-:33 in at least two important respects. The Massachusetts
statutes provide for a person to be re-examined upon arrival at an authorized
facility; RSA 135-C:27-:33 contain no analogous provision. See Doe, 2020 WL
2079310, at *9. Moreover, while the Massachusetts statute regarding the
preliminary evaluation contains no time limit, RSA 135-C:29, I, mandates the
person’s “immediate[]” delivery to a receiving facility “[u]pon completion of an
involuntary emergency admission certificate.” In New Hampshire, although the
acts of completing a certificate and delivering a person certified for involuntary
emergency admission are separate, the plain meaning of RSA 135-C:29, I,
requires the two acts to occur together.
The defendant contends that admission cannot take place upon
completion of a certification because then “the terms ‘involuntary emergency
admission’ and ‘state mental health services system’ are abstract concepts,
such that a person may be ‘admitted’ to the ‘state mental health services
system’ by private persons who do not work within that system without being
physically present at a ‘receiving facility’ and therefore without receiving
mental-health treatment.” The defendant argues that interpreting the
pertinent statutes to mean that admission is to the state mental health services
system, rather than to a specific facility, “disregards the fact that the ‘state
mental health services system’ is a system of treatment facilities that [DHHS]
regulates and controls; it is not a system controlled by private actors who do
not work within the system and who can force receiving facilities to intake
patients they lack the capacity and resources to treat.”
We reject a central premise of the defendant’s argument. The state
mental health services system does not solely consist of treatment facilities. It
also consists of: (1) community mental health programs, which, at a minimum,
provide “emergency, medical or psychiatric screening and evaluation, case
management, and psychotherapy services,” RSA 135-C:2, IV; (2) transitional
housing program services, which provide “housing and support services to
persons with serious and persistent mental illness,” RSA 135-C:2, XV-a (Supp.
2020); (3) law enforcement officers, who, under certain circumstances, are
statutorily required to take persons into custody, RSA 135-C:62 (2015); and (4)
medical service providers “who are approved by either a designated receiving
facility or a community mental health program approved by the commissioner”
to complete certificates for involuntary emergency admission, RSA 135-C:28, I.
15
We disagree with the defendant that the medical service providers who are
allowed by statute to complete certificates for involuntary emergency admission
solely because they have been approved to do so are not part of the state
mental health services system. See Doe, 2020 WL 2079310, at *10 n.12.
Relatedly, the defendant argues that in permitting “private actors
employed by private hospitals to impose upon the State a monetary obligation
to fund the state mental health services system in order to provide full benefits
to all persons for whom an [involuntary emergency admission certificate] has
been signed,” our statutory interpretation conflicts with the “well established”
proposition “that the executive branch may expend public funds only to the
extent, and for such purposes, as those funds may have been appropriated by
the legislature.” Petition of Strandell, 132 N.H. at 115. The defendant asserts
that RSA chapter 135-C “gives [DHHS] the flexibility to provide mental-health
services to those who need it within the limits of the resources provided.” She
contends that she “can only increase capacity within the system when the
legislature provides her the resources [to do] so,” and that “[s]he is thus not
just permitted to restrict access to services within that system when there is
insufficient capacity to provide those services; it is constitutionally required.”
The defendant relies upon RSA 135-C:13 and Petition of Strandell to support
these assertions.
The defendant’s reliance on RSA 135-C:13 is misplaced. RSA 135-C:13
provides that “[e]very severely mentally disabled person shall be eligible for
admission to the state mental health services system, and no such person shall
be denied services because of race, color or religion, sex, gender identity, or
inability to pay.” In contrast to individuals who are not “severely mentally
disabled” within the meaning of RSA chapter 135-C, who must apply for
voluntary admission to the state mental health services system, “severely
mentally disabled” persons are automatically eligible for such admission. See
RSA 135-C:2, XV (defining “severely mentally disabled”), :12 (describing the
process for voluntarily applying for mental health services from the state
mental health services system), :13 (providing that “severely mentally disabled
person[s] shall be eligible for admission to the state mental health services
system” (emphasis added)).
RSA 135-C:13 pertains only to the voluntary admissions of “severely
mentally disabled” individuals, and does not pertain to involuntary emergency
admissions. Accordingly, although RSA 135-C:13 provides that “[a]dmission to
the state mental health services system and access to treatment and other
services within the system shall be contingent upon the availability of
appropriations,” the admission to which RSA 135-C:13 refers is the voluntary
admission of “severely mentally disabled” individuals. Thus, under RSA 135-
C:13, the right of “severely mentally disabled” individuals to voluntary
admission to the state mental health services system is expressly conditioned
16
upon the availability of resources. See Petition of Strandell, 132 N.H. at 115-
16. There is no such condition contained in the provisions governing
involuntary emergency admissions. See RSA 135-C:27-:33.
The defendant argues that the “‘inherent constitutional limitation[ ] on
the authority of the executive branch to expend public funds’ . . . exists
regardless of whether it is also reflected in the statutory text.” (Quoting
Petition of Strandell, 132 N.H. at 116.) However, as the plaintiff aptly asserts,
“[a] purported scarcity of resources . . . is not a legal justification for agency
non-compliance with [a] legislative command.” See In re Gamble, 118 N.H.
771, 773, 776 (1978) (declining to “accept the State’s argument that its
inability to find guardians excuses it from performing the legislative mandate”
to “obtain and nominate guardians” for patients at NHH and residents of the
Laconia State School). Moreover, when the legislature “creates a class of
beneficiaries which is greater than that which can be served by the amount of
resources available for that purpose,” and the statutory scheme “is silent as to
how to resolve the predicament, the administering agency,” here DHHS, “may
establish reasonable classifications and priorities to allocate the limited
resources.” Petition of Strandell, 132 N.H. at 119.
Whether DHHS, in fact, has established such reasonable classifications
and priorities is not before us. The only question before us is whether the
plaintiff’s continued confinement in NHH was unlawful under RSA chapter
135-C. Accordingly, we express no opinion as to the plaintiff’s assertions that
DHHS “has failed to enact regulations that establish reasonable classifications
and priorities for administering benefits,” does not maintain a “wait list
organized and monitored to serve those most in need,” and has failed to
develop “guidelines for prioritizing which individuals detained in emergency
rooms will be entitled to receive services.”
Petition of Strandell is distinguishable. Petition of Strandell did not
involve a petition for a writ of habeas corpus. Rather, the issue in that case
was whether an agency had established “reasonable classifications and
priorities to allocate the limited resources” by adopting an administrative rule,
which “establish[ed] a priority waiting list for developmentally disabled persons
who apply for, and are entitled to receive, certain habilitative services” under a
certain statute. Petition of Strandell, 132 N.H. at 111, 119. We upheld the
challenged rule as a “necessary and reasonable means of implementing the
statutory mandate . . . to the fullest extent possible in an environment of
limited resources.” Id. at 122.
In urging us to adopt her statutory construction, the defendant makes
several public policy arguments. For instance, she argues that our statutory
17
interpretation “will either result in the circuit court holding probable cause
hearings in private hospital [emergency departments], after which many
patients will remain detained without treatment, or in courts ordering patients
released from private hospital [emergency departments] when such hearings do
not occur.” She contends that our interpretation “is likely to increase the risk
that mentally ill persons will harm themselves or others” because, if probable
cause hearings cannot be provided, they “may be released . . . without
treatment.” The defendant also asserts that our interpretation “effectively
forces statewide centralization of emergency mental health treatment, which
will result in patients being transported outside of their communities to receive
necessary care.” Ultimately, she argues that our construction “will exacerbate
the problems currently facing the mental-health system, likely render the
system nonfunctional, and harm the individuals RSA chapter 135-C is
designed to help.”
The defendant’s public policy arguments are made in the wrong forum.
See Petition of Kilton, 156 N.H. 632, 645 (2007). “Matters of public policy are
reserved for the legislature, and we therefore leave to it the task of addressing
the [defendant’s] concerns.” Id. “Because our function is not to make laws,
but to interpret them, any public policy arguments relevant to the wisdom of
the statutory scheme and its consequences should be addressed to the General
Court.” Appeal of New England Police Benevolent Ass’n, 171 N.H. 490, 497
(2018) (quotations omitted).
III. Conclusion
The parties have made clear that the statutory process is not working as
the legislature intended because of the lack of beds in receiving facilities. As a
result, individuals who have been certified for involuntary emergency
admission “are boarded in private hospitals while waiting for space in
designated receiving facilities,” and “[w]hile they wait, those persons are not
provided treatment or probable cause hearings.” Doe, 2020 WL 2079310, at
*11. Nonetheless, we agree with the federal district court that the defendant
“has a duty mandated by statute to provide for probable cause hearings within
three days of when an [involuntary emergency admission] certificate is
completed.” Id. We do not opine as to how the defendant should comply with
its statutorily-mandated duty as our system of government entrusts such
decisions to our coordinate branches. Of course, if the legislature disagrees
with our interpretation, it is free to amend the statutory scheme as it sees fit
within constitutional bounds. See Appeal of New England Police Benevolent
Ass’n, 171 N.H. at 497.
Affirmed.
BASSETT and DONOVAN, JJ., concurred.
18