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The Oregon Court of Appeals upheld a Washington County ruling regarding the lack of speedy admissions to the hospital for those unfit to stand trial.

PMG FILE PHOTO  - The Oregon State Hospital campus in Salem is shown here. The Oregon Court of Appeals has upheld a 2019 ruling that found the state psychiatric hospital in contempt for failing to quickly admit incarcerated persons found unfit to stand trial.

Since 2002, a federal order has required the Oregon State Hospital to admit patients within seven days in cases where a trial court has issued a commitment order, but OSH "routinely violated" that rule hundreds of times, according to an investigation by The Oregonian last year.

The appeals decision, published Dec. 30, has some in the legal establishment hoping it will spur lawmakers to act.

"If the legislature keeps ignoring these violations, and doesn't fully fund the state hospital, they are now opening themselves and state agencies up to a whole bunch of liabilities," said defense attorney Amanda Thibeault. "My real hope is that the legislature cares enough about mentally ill people to properly fund the state hospital."

Thibeault represented Carlos Zamora-Skaar, who faced a felony burglary charge relating to a Beaverton apartment break-in in December 2018. Washington County Judge Charles D. Bailey ordered an evaluation of Zamora-Skaar's mental fitness the following January, but by April that still hadn't happened, OPB reported at the time.

Judge Bailey ordered the Oregon Health Authority, which runs the hospital, to pay a $100 fine for each day a defendant remained behind bars past the seven-day deadline. Public health authorities then appealed the ruling — to no avail.

"OSH defended against the contempt allegation based on an affirmative defense of inability to comply with the seven-day timeline, given its view that admitting more patients ... would compromise patient treatment and put patients and OSH staff at risk," according to the appeals court decision.

Hospital administrators say they have ample reason not to fill every bed at the imposing institution in Salem, such as maintaining capacity for emergencies. The hospital halted all admissions earlier this month, citing an outbreak of COVID-19 that has infected at least 24 patients and 71 workers.

The capacity of the Oregon State Hospital is at present just 671 beds spread across two campuses and offering three levels of care, said Hospital Relations Director Rebeka Gipson-King.

"This does not include beds held for managed capacity — keeping one bed open on each unit for safety and treatment purposes, the two closed units on the Junction City Campus that we do not have funding to operate and beds we need for COVID-19 protocols," she said in a statement.

Zamora-Skaar's case has been settled — he was eventually transported to the state hospital, where his mental health recuperated; he was then found fit for trial, and later pleaded guilty. Attorney Laura Graser argued the appellate case.

Thibeault says she's pleasantly surprised to see Judge Bailey's finding of contempt to be upheld and understands the reality of the hospital's struggle with COVID. And yet: "There's always going to be another justification that state agencies can come up with for violating our clients' statutory and constitutional rights," she said. "It takes a lot for one government branch to say that another governmental agency could be held accountable."

The state hospital's seven-day admission rule is based on Oregon Advocacy Center v. Mink, which was adjudicated in Oregon federal court and upheld by the Ninth Circuit. It applies only to commitment orders known as a .370, of which there is a current and ongoing backlog.

The delay of .370 orders could lead to contempt motions in courts across Oregon unless OHA appeals the ruling to the state Supreme Court. Administrators did not reveal their intentions in response to written questions.

"Even through the pandemic, we have continued to work diligently to make sure people who need hospital-level care are admitted to Oregon State Hospital. We are disappointed the decision does not recognize the hospital's capacity challenges — challenges that have only been exacerbated by the pandemic. Our priority must be keeping our patients and staff healthy and safe," said Gipson-King.

She continued: "We must maintain our focus on decriminalizing mental illness and homelessness. Going forward, we will continue partnering with counties and local courts to ensure every person in Oregon who needs mental health care has timely access to treatment in their own community or, when necessary, at the state hospital."


Zane Sparling
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