Courts seek resources for mentally ill in prison system
By Sam Stites
Oregon Capital Bureau reporter
Reforms to Oregon's system for dealing with those unfit to stand trial aren't working as planned, with judges challenged to find local treatment options for those they used to send to the Oregon State Hospital.
As a result, the state hospital has not seen a significant reduction in the number of patients needing hospital-level care. And mental health advocates say legislation adopted early in 2019 inappropriately left in place language that continues to stigmatize those needing public help.
In recent years, Oregon judges have sent more and more patients to the state hospital for treatment to regain competency in order to help in their own defense against criminal charges.
From 2017 to 2018 there was a 15 percent increase in patients sent to the facility, from 610 to 719. So far in 2019 there have been 633 patients found unfit to stand trial and sent to the state hospital.
Under the new legislation, judges were asked to find local treatment for those deemed unfit to stand trial, reserving hospital-level care for those found to be dangerous to themselves or others.
In the 12 months leading up to Senate Bill 24's passage, the state hospital received on average 59 aid-and-assist patients each month. In the four months following SB 24's passage, the hospital received an average of 54 per month.
While mental health professionals agree that treating patients in their own communities leads to better outcomes, many Oregon counties don't have the ability to provide this treatment, forcing judges to either keep defendants jailed — violating their civil rights — or releasing them to the streets.
A 50-member work group representing the courts, public defenders, prosecutors, mental health advocates and behavioral health professionals is looking at fixes to ensure mentally ill criminal defendants get the help they need.
One member, Multnomah County Judge Nan Waller, recently talked with lawmakers on the legislative Joint Judiciary Committee about what's being done to fix issues created by the reform measures.
"All the players to the aid-and-assist process have one goal and that is to make sure that people get the treatment we're obligated to provide them in the most appropriate setting.," Waller said. "Nobody wants people languishing in jail. Nobody wants the capacity issues at the hospital to get out of hand. Nobody wants mentally ill people on our streets."
Waller added that her court time includes dealing with individuals who suffer from significant mental health issues, many of whom have committed misdemeanors that often relate to poverty and homelessness. She said the Oregon Judicial Department is hiring six new employees to collect data to identify the gap between the services people need and what's available.
Researchers will report on the numbers of cases where a defendant is unfit to proceed or pending an evaluation for fitness, evaluations ordered, those transferred to the state hospital communities, number of in-custody review hearings held, number of cases dismissed due to a defendant's lack of fitness and more.
"As somebody who every week has to make decisions about releasing people from jail who do not have any place to go, there is nothing more disheartening than to say to somebody, 'Do you have a coat? Is there anyone you might call? Is there any place you have to go?'" Waller told lawmakers. "I have released people because we haven't had any place and not met hospital-level of care. That is unfortunate and not as a society what we should be doing."
Most stakeholders agree that the recent legislation was just one step to address Oregon's mental health issues.
"We all realized this bill had some big missing pieces, so the crux of this work group is to look at some of those big cracks and figure out how to ensure there's a smooth, efficient and constitutional process," Emily Cooper, legal counsel for Disability Rights Oregon, said.
That organization has attempted to hold the state and the hospital accountable for ensuring defendants are given access to mental health treatment.
Earlier this year the group sued the state for not complying with a 2002 rule requiring criminal defendants needing treatment be admitted to the state hospital within seven days of a court order.
In 2018, more than 200 patients had to wait longer than seven days, a problem that hospital administrators blamed on an unforeseen influx of aid-and-assist patients the facility wasn't equipped to handle. Cooper said Senate Bill 24 perpetuates bias in determining an individual's "dangerousness," a term the legislation uses to define who judges can send to the state hospital.
Dr. Michelle Guyton, director of the Oregon Forensic Evaluator Training Program and co-owner of the Northwest Forensic Institute, said the legislation leaves room for unfairly categorizing those dealing with mental illness.
Guyton suggests the term "dangerousness" be removed from the law and in its place require the 120 mental health evaluators based throughout Oregon look at a broader range of criteria to provide judges with a better understanding of who requires hospital-level care and who can be treated in local programs.
"We look forward to defining these terms in the rules and training certified forensic evaluations to provide the most efficient, clinically sound and ethical evaluations to assist the courts," Guyton told lawmakers.
Cooper said changing the language would better protect the civil rights of defendants dealing with mental health and substance abuse disorders. She added that the problem remains that when the evaluators and courts find an individual doesn't require hospital care, they have little option in finding treatment.
"We don't have a system where there is community-based restoration in every county. Only a handful of counties do," Cooper said. "We need to shift the focus and the funding away from the criminal justice system to the community behavioral health system. I haven't met a single person in Oregon that does not agree that's the right thing to do."
Disability Rights Oregon envisions the state shifting spending from jails and state hospital stays to more mental health and substance abuse care in communities.
Pat Allen, director of the Oregon Health Authority, told lawmakers last month that his agency will propose to the 2020 Legislature adding significant resources to bolster community mental health treatment.
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