A judge in Cumberland County has dismissed a motion to hold the acting Maine Department of Health and Human Services commissioner in contempt of court.

Defense attorney Sarah Branch filed the motion while her client was waiting for weeks for a transfer from a jail cell to a state mental health treatment facility. She argued the man’s experience is the result of a systemic problem that also affects others, and she wanted the court to hold the department accountable for the delay.

But District Court Judge Jed French issued a ruling Thursday siding with the state. He said the issue is moot because the man Branch represents is now receiving treatment at Riverview Psychiatric Center in Augusta. While he acknowledged the seriousness of the issue, he said the trial court does not have the authority to offer any other remedy.

“Delay in the treatment of the mentally ill, especially those who have been brought into Maine’s criminal justice system, is of great concern to the court,” French wrote.

The judge did not answer the central question of how long the Department of Health and Human Services has to find a bed for a person with a court order for mental health treatment. But Branch said she still believes the motion started conversations about how to solve this problem in the criminal justice system.

“It’s important that all the stakeholders are motivated, are talking, are working to solve these problems and not accepting these waitlists as common practice,” Branch said. “It can’t be business as usual.”

Neither the Maine Attorney General’s Office nor the Department of Health and Human Services responded to a request for comment.

Branch’s client in this case is 44-year-old Joseph Lluvera of Brunswick. He is facing a range of charges from criminal trespassing to aggravated assault. Some stem from an alleged incident in a hospital wing where he had also been awaiting involuntary commitment for mental illness.

On Nov. 9, a Cumberland County judge found Lluvera incompetent to stand trial and ordered him to be committed to a Department of Health and Human Services facility for mental health treatment. The goal is for him to regain competency so he can eventually address the pending charges, the order says.

But as the end of November approached, Lluvera remained in the Cumberland County Jail. In court documents, Branch would later describe visiting his individual cell and trying fruitlessly to explain to him through the food hole in the door why he was still at the jail.

She took the unusual step of filing the emergency motion for contempt on Nov. 28, saying that his incarceration was cruel and unusual punishment. She also requested documents, including those that reflect the number of people who are waiting for a jail transfer to a mental health facility.

Court documents show that placement options for people who are incompetent to stand trial include the state’s two psychiatric hospitals – Riverview and Dorothea Dix Psychiatric Center in Bangor – as well as some programs for people with autism or intellectual disabilities. People with a higher risk or history of violence are always placed at Riverview, where there are 92 total beds. The state’s filings say that 44 beds are dedicated to forensic patients, or patients who are in the custody of law enforcement. One unit of 24 beds is for people who have been deemed not criminally responsible by reason of insanity, and one unit of 20 beds is for other forensic patients, including those with incompetency orders.

Bethany Hamm has been the acting commissioner of the Department of Health and Human Services since September. Two days after Branch filed her motion, the court issued a subpoena for Hamm. Assistant Attorney General Molly Moynihan responded with a motion to dismiss and a motion to quash the subpoena on Dec. 10. The parties met for a hearing Dec. 13.

Her central argument was that Lluvera was eventually admitted to Riverview on Dec. 4. She wrote that department staff began working immediately to find a placement for Lluvera. However, she said, the delay occurred when Lluvera required a placement at Riverview because he had a history of violence, and construction at that facility had limited its capacity during that time. At the hearing, she worked to confine the discussion to Lluvera’s case only and did not address the broader allegations of a systemic problem.

“What does the defendant want, and can that be achieved by continuing this matter?” Moynihan said during last week’s hearing. “There’s no further relief available.”

Branch argued that the state should be held accountable for leaving Lluvera in jail for nearly a month. She cited examples from four other cases where people waited between 12 and 40 days for transportation from a jail to a mental health treatment facility. Because those defendants are still involved in open criminal cases and have not yet been convicted of crimes, she said the delays in treatment are impacting their rights to a speedy trial.

“I think the stakes are too high to let them walk out the door without the court telling them that this is unacceptable,” Branch said at the hearing.

Cumberland County Assistant District Attorney Amanda Doherty also briefly spoke at the hearing. In an email Friday, she agreed that patients often wait weeks to get treatment beds despite court orders.

“Mr. Lluvera’s case is not an isolated incident,” Doherty wrote. “That being said, I do not think DHHS is willfully not complying with the Court orders – they want people to get help as much as the rest of us, but they have limited beds and funds and so until something can be figured out to remedy that issue, it’s going to keep happening.”

As a remedy, Branch had requested the judge order that the commissioner must seek an extension at court when extra time is needed to find a placement. Moynihan had argued that would be a blanket order that should not come out of a narrow case.

Branch said Thursday she will not appeal the judge’s ruling.

“I’m hoping, that if nothing else, this case has brought a light to what’s happened,” Branch said. “It might not be the outcome I was hoping for, but I respect the court’s decision, and I know we can do better. I know we can do better as a community.”


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