Nancy Heath, right, and her daughter, Tristin, leave the New Hampshire Hospital after a hearing in June in the small probate courtroom at the hospital.

A Milan mother who is fighting for guardianship of her adult son is suing Gov. Chris Sununu and other officials in federal court claiming her son’s civil rights are being violated by being held in state prison instead of a psychiatric hospital.

Nancy Heath claims her son, Anthony Heath, 32, should be housed in the New Hampshire Hospital, the state’s psychiatric hospital, because he was civilly committed after being found not competent to stand trial and requires mental health treatment.

Instead, he has been held for two years in the Secure Psychiatric Unit at the men’s prison where she said he was tasered and placed in four-point restraints when he refused a non-emergency blood draw soon after arriving.

Besides Sununu, the lawsuit filed by Nancy Heath names Corrections Commissioner Helen Hanks and Health and Human Services Commissioner Jeffrey Meyers.

“Staff at the (Secure Psychiatric Unit) treat individuals civilly committed as defacto prisoners, in violation of their 14th Amendment rights,” Heath wrote in the suit on behalf of her son.

“Upon admission, the civilly committed are required to submit to a strip search, which includes a visual inspection of their oral and anal cavities. Their personal property is taken from them. They are issued prison uniforms. Once confined, they are commingled with convicted felons and pretrial detainees,” Heath wrote. “They are subject to pat searches conducted by guards and cell ‘shakedowns.’ ”

Anthony’s Fourth Amendment rights were violated when Department of Corrections employees monitored his phone calls, read his personal correspondence, searched his cell and performed strip searches of him in front of female correctional officers, Heath wrote.

“Anthony Heath has been incarcerated in a maximum security prison, while having never received appropriate mental health treatment in violation of” the Americans with Disability Act, the lawsuit says.

Her son was incarcerated in the prison while other civil committees were hospitalized in New Hampshire Hospital, Heath wrote, adding during Anthony’s first eight months at the unit, he was held in a cell for 23 hours a day.

Official response

Department of Corrections spokesman Jeffrey Lyons said the department wasn’t aware of the lawsuit and had no comment. The lawsuit is posted on the U.S. District Court website. Gov. Sununu and Meyers didn’t immediately respond to requests for comment.

In the past, state officials have said that civilly committed patients from the New Hampshire Hospital are only transferred to the prison unit if they are deemed too dangerous to themselves or others to be safely housed in the hospital.

It is rare, state officials say, but necessary in some instances. At the Secure Psychiatric Unit, mentally ill people who haven’t committed a crime are commingled with people who are deemed not competent to stand trial, those found not guilty by reason of insanity and mentally ill convicted criminals.

The lawsuit claims that Anthony hasn’t been violent while at the prison psych unit and should by law be transferred to the least restrictive setting. He remains in the prison unit because there is a shortage of beds at the New Hampshire Hospital, Heath alleges.

Different treatment

The lawsuit goes into detail about the differences between treatment at New Hampshire Hospital, which is run by the Department of Health and Human Services, and the Secure Psychiatric Unit, which is part of the state prison and run by the Department of Corrections.

“(Anthony) was assigned a job at the request of the guardian to show his ability to interact with others, however, has been paid wages equal to convicted persons, which is in violation of the Thirteenth Amendment of the U.S. Constitution,” the lawsuit alleges.

The state has created two classes of civil committees, the lawsuit claims. “Indeed, people civilly committed to SPU have even less freedom than other prisoners confined at NHSPM, Concord,” Heath wrote.

Unlike convicted criminals and pretrial detainees, civilly committed people at the Secure Psychiatric Unit are not allowed outside, except for a large screened-in, porch-like structure with a concrete floor, the lawsuit says, adding they can’t participate in most recreational programs.

“The incarceration of citizens civilly committed to SPU amounts to the criminalization of mental illness, unnecessarily stigmatizing those who have an urgent medical need,” Heath wrote.

Placing civilly committed people in prison, rather than an appropriate treatment facility, is traumatic and incompatible with the appropriate treatment of people with the disease of mental illness, Heath wrote.

“It occurs only because New Hampshire has chosen not to establish an adequate number of treatment beds in New Hampshire Hospital or a separate forensic facility to meet the needs of civilly committed citizens,” she wrote. “New Hampshire is the only state in the country that imprisons people for mental illness treatment.”

The policy has become controversial with lawmakers Rep. Renny Cushing, D-Hampton, and Sen. Kevin Avard, R-Nashua, promising to again file legislation next session to halt the practice.

Anthony Heath

In a recent phone interview from the Secure Psychiatric Unit, Anthony Heath told InDepthNH.org that the staff keeps pushing anti-psychotic medication at him.

“I can’t take that medicine. I’m scared of it,” Anthony said.

Anthony said he would like to be his own guardian and make decisions for himself.

In the two years he has been at the prison unit, Anthony said he hasn’t been violent or engaged in self-harm.

“I’m hoping someone will help me,” Anthony said.

Anthony also said he and his mother want to have InDepthNH.org attend the confidential guardianship hearings as allowed by state law, but Probate Judge Barbara Maloney has denied his request.

The July 12 hearing on guardianship will resume at a date yet to be announced.

The state wants to replace Nancy Heath as Anthony’s guardian with someone from the Office of Public Guardian claiming she refuses to allow him to be medicated, which she denies. The state also claims Anthony threatens his mother during phone calls.

“They are arguing that my son is hostile with me and bullies me,” Heath said, adding that is how the two often communicate.

Anthony was involuntarily committed about two years ago for up to five years as being not competent to stand trial for a first-degree assault and a second-degree assault charge in separate incidents in 2015. The charges have been dropped, but Nancy Heath said they could be reinstated in the future.

In the lawsuit, Heath asked the court to prohibit the state from transferring men and women who have been civilly committed to the state hospital to the prison unit.

“(Anthony) requests the federal court examine the constitutionality of New Hampshire sending civilly committed patients to the Secure Psychiatric Unit located within the New Hampshire State Prison for men,” Heath wrote.