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http://www.courts.state.nh.us/supreme.

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. 
2

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 
3

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 
4

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.” 
5

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 
6

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 
7

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 
8

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. 
9

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,” 
10

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 
11

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). 
12

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 
13

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. 
14

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 
15

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. 
16

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
17

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 
18

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.