Maine health officials are revising the process for involuntarily committing mental health patients deemed at risk of harming themselves or others in light of a recent ruling by the state’s highest court.

Last month, the Maine Supreme Judicial Court concluded that MaineHealth, the parent company of LincolnHealth Miles Hospital in Damariscotta, violated state law when it held a man for nearly a month last year without first getting judicial approval, and also that it failed to apply the proper standard when denying his petition for release.

By the time the court ruled, the man – identified in court documents only by his initials – already had been released, but justices heard the case anyway for two reasons: It raised significant public concerns and because their decision could serve as guidance going forward.

Department of Health and Human Services spokeswoman Jackie Farwell confirmed this week that the Office of Behavioral Health is updating its involuntary commitment process, often referred to as a “blue paper,” to provide greater clarity and reflect the new precedent. The details are still being worked out.

MaineHealth attorney Jim Bailinson said its hospitals were following “what everyone understood the law to be,” based on DHHS’ own guidelines.

“We welcome the increased guidance,” he said. “We just haven’t had a mechanism until now.”

Meegan Burbank, an attorney who represented the individual hospitalized, was pleased with the decision and the state’s willingness to revise its process but said the case highlights an incontrovertible fact: There aren’t enough inpatient treatment beds or alternative options for people dealing with a mental health crisis.

“This doesn’t fix a problem, it shines a light on a problem,” Burbank said. “We’re still forcing people to be in hospitals that cannot treat them.”

Burbank’s client, who was 22 at the time of last year’s hospitalization, declined to be interviewed for this story. According to court documents, he called 911 on Feb. 24, 2020, because he was experiencing anxiety and symptoms of withdrawal from substances. Police responded and took him to the emergency room at LincolnHealth’s Miles Campus.

Once there, hospital officials initiated an application for emergency involuntary admission to a psychiatric hospital, more commonly known as a blue paper, because they believed he posed a risk of harm to himself or others. The application indicated he had a diagnosis of post-traumatic stress disorder and bipolar schizoaffective disorder. He threatened to burn his house down and has a history of suicide attempts, they wrote.

The statute that governs involuntary commitments allows for the hold of a patient for up to 24 hours pending a judicial order. The statute was amended in 2015 to allow a hospital to continue holding a patient for two consecutive 48-hour periods as long as the patient still poses a likelihood of serious harm and the hospital is not able to locate an available inpatient bed at a psychiatric hospital or other appropriate alternative.

There are two state-run licensed psychiatric hospitals – Riverview in Augusta, which has 92 beds, and Dorothea Dix in Bangor, which has 51. The state also contracts with seven private hospitals that provide a small number of psychiatric beds. In 2020, 3,161 individuals in Maine were discharged from inpatient psychiatric services.

In Burbank’s client’s case, it wasn’t just that there wasn’t a bed. He was declined admission to a psychiatric hospital because its psychiatrist determined that his issues were chiefly related to substance abuse rather than psychosis. So, LincolnHealth continued to hold him and even enlisted local police officers to watch his emergency room 24 hours a day.

After 18 days, the patient submitted what’s known as a writ of habeas corpus to petition for his release. His argument was both that the hospital had never received judicial approval to hold him and that the hospital never demonstrated clear and convincing evidence that he should be held. The hospital, meanwhile, maintained that it “was not required to submit applications for emergency involuntary commitment to a judicial officer until and unless it had found a psychiatric hospital willing to accept the patient.”

“Their position was we don’t need authority,” Burbank said. “They were so steeped in their belief they were right.”

A district court judge sided with the hospital, which led to Burbank’s appeal to the law court.

Without that judicial review, there would plausibly be no official record of the involuntary commitment. In Burbank’s client’s case, the Damariscotta hospital initiated the involuntary commitment process 16 different times in less than a month but never filed anything with the court.

“The data is important in learning how often people are referred and how many might be rejected,” said Mark Joyce, an attorney with Disability Rights Maine, which contracts with DHHS as the advocacy organization for individuals with disabilities, including severe mental illness. “How would you know whether something is working if you don’t have the data?”

The other precedent set by the court means hospital clinicians must demonstrate a higher burden of proof – clear and convincing evidence – before denying a patient’s petition for release. Burbank said that’s particularly important because it confirms that people have due process rights, even if they have a mental illness.

“I respect medical providers … they want to heal people,” she said. “But people have a right to decide whether they want to be healed.”

Despite the court’s ruling, it doesn’t mean individuals won’t continue to be held in hospitals pending placement, sometimes for extended periods of time.

Even though the statute says a blue paper allows for two consecutive 48-hour holds following that initial 24 hours, justices said the law allows hospitals to “restart” the process as long as they get judicial approval and demonstrate the patient remains at risk of harm.

The Maine Hospital Association, which represents the state’s hospitals, submitted a brief siding with LincolnHealth. In it, the association warned about a decision that would require hospitals to discharge mentally ill patients medically determined to be dangerous to self or others.

Jeff Austin, vice president of the Maine Hospital Association, said now that the court has ruled, hospitals will comply but said DHHS needs to provide further clarity.

“Hospitals appreciate that an issue which has been a bit muddled for some time has been clarified. We look forward to receiving revised guidance from DHHS,” he said. “Obviously, we wish that the underlying issue – lack of resources for mental health services – could be as easily fixed.”

Kevin Voyvodich, also an attorney with Disability Rights Maine, said it’s clear the system is still fractured.

“But I’m not 100 percent clear whether it’s lack of resources or a coordination of resources,” he said. “It’s not always just more beds, it’s how the resources are managed.”

Burbank said she’s anxious to see how the state addresses the larger issues, but she’s pleased the court provided stronger protections for patients like her client to petition for release.

“This decision didn’t take authority away from hospitals, it told the hospitals to follow the statute,” she said. “But I hope the state is taking this as an opportunity to rehab our system.”

Joyce, with DRM, agreed that the decision was a positive for patient rights, but he worried about the practical application. He said patients still don’t always know they have the right to petition for release and even if they do, finding an attorney to help navigate that process is a challenge.

“If you have a right but you can’t exercise it, it’s not much of a right,” he said.

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