The commissioner of the Maine Department of Health and Human Services has been ordered to appear in court next month for a contempt hearing on her department’s refusal to admit a patient to the state’s psychiatric hospital as ordered by a judge.

Commissioner Mary Mayhew, one of Gov. Paul LePage’s 13 Cabinet members, has been subpoenaed to appear May 5 in York County Superior Court in Alfred to answer questions about her department’s admissions at Riverview Psychiatric Center in Augusta. Jay Harper, Riverview’s superintendent, also has been ordered to appear in court at the same contempt hearing.

Both were subpoenaed in response to a motion filed by attorney Amy Fairfield. She represents a criminal defendant who has remained in the York County Jail for a month after a judge found the man incompetent to stand trial and ordered him into DHHS custody.

“Despite the court’s order, Riverview, the treatment facility run by the state of Maine’s commissioner of Health and Human Services, refuses to accept defendant as a patient,” Fairfield wrote in her motion for contempt. “Riverview attempts to justify its violation of the court’s order by referring to its eventual closure (of forensic services at the hospital) without any further attempt to find an appropriate placement for defendant.”

DHHS spokesman David Sorensen said the department will challenge the subpoenas for Mayhew and Harper to appear in court.

Under Maine law, if Mayhew is found in contempt, she could be jailed or fined. Court records in the case files of Fairfield’s client, 24-year-old Michael Whitten, of Sanford, don’t indicate whether that might happen. Mary Ann Lynch, spokeswoman for Maine’s Judicial Branch, said she “cannot speculate” on what could happen if Mayhew is found in contempt.

The hearing comes as DHHS struggles with adequately funding and staffing Riverview, one of two inpatient mental health hospitals fully operated by the agency. The other facility, the Dorothea Dix Psychiatric Center in Bangor, serves northern areas of the state.

The U.S. Centers for Medicare and Medicaid Services notified Riverview in 2013 that it no longer met federal standards after deficiencies were discovered, including use of Tasers on patients, improper record-keeping and poor treatment plans.

With the loss of certification, Riverview lost its eligibility for $20 million in annual federal funding. Maine officials have said the state has continued to receive the funding since then, but federal Medicare officials have said repeatedly that the state will have to repay that money unless it can convince a court that Riverview should never have lost its certification in the first place.

Mayhew has said Riverview will not be recertified as long as a significant percentage of its patients have been referred to the hospital from the criminal court system. In the past, about half the hospital’s 92-bed capacity was filled by patients from the criminal system and half from involuntary or voluntary civil commitments. It is unclear whether that is still the case.

Sorensen, the DHHS spokesman, said by email Thursday night that the hospital needs more staff to address safety issues, which would make it easier to accept new patients.

“The safety of patients and staff at Riverview comes before all else, and it would be greatly improved if Democratic lawmakers reconsidered their votes against funding for 12 new acuity specialist positions at the hospital,” he said.

BEDS REPORTED OPEN

Justice John O’Neil Jr., who was appointed to the Superior Court bench by LePage in 2011, signed an order last week approving Fairfield’s request for a contempt hearing and authorized subpoenas for Mayhew and Harper to appear.

Fairfield said she has called Riverview repeatedly since another judge, Justice Paul Fritzsche, ordered her client admitted to Riverview on March 23.

“When I started calling about Michael Whitten about a month ago, they said Riverview was not accepting new patients and try again in April,” Fairfield said on Wednesday. “I waited. I didn’t want to be too reactionary. People didn’t know what to do, so that’s why I decided to file a contempt motion.”

Fairfield said she was told by the director of admissions at the hospital that Riverview has had as many as 30 vacant beds in recent weeks and had seven beds open last week specifically for patients from the criminal court system.

Fairfield, who owns the law firm Fairfield and Associates, said attorneys in her offices in Lyman and Portland have two other clients like Whitten who have been found incompetent to stand trial and are idling in jails while waiting for Riverview to admit them. She said her firm plans to file motions for contempt in those cases, too.

“Each of these individuals have been found by the court to be incompetent to stand trial,” Fairfield said. “They need to be in a treatment facility, and for all extents and purposes, the only one we have is Riverview.”

In criminal cases in which defendants are deemed incompetent to stand trial, they will often be sent for treatment to see whether their mental health can be improved enough to stand trial or so the case against them can be settled in some other way.

Whitten is accused in two pending criminal cases, one for a theft charge and another for a charge of breaking into a car. He has been jailed since Jan. 7.

The two other men represented by her office who also have been deemed incompetent each face multiple misdemeanor charges.

“They are sick, and they need help. And if you put them back into society without treatment, they just go back to jail,” she said.

The state’s county jails do not have mental health staff workers.

Sen. Stan Gerzofsky, D-Brunswick, has sponsored a bill, now before the Criminal Justice and Public Safety Committee, that would create a “secure, therapeutic mental health unit” as an alternative for admission of criminal defendants to Riverview. However, whether the bill will come before the full Legislature this year isn’t clear.

Gerzofsky, who is co-chairman of that committee, did not return a phone message seeking comment.