Lawyers for the Oregon State Hospital and a key regional psychiatric facility, the Unity Center for Behavioral Health, recently squared off to determine who would house a patient that neither institution wanted.
In a Clackamas County courtroom, the Unity lawyer sought to persuade a judge to find the state in contempt of court for failing to take care of the patient in its charge.
Though the attempt failed, it’s the latest example of how the state’s housing of civilly committed people — placed under state supervision because they are deemed a threat to themselves or others — is itself becoming a matter for the courts.
The Oregon Health Authority, which oversees the state hospital, is increasingly shifting civil commitment patients to facilities outside the Oregon State Hospital, eating up bed space at already strained facilities, such as hospitals and the Unity Center.
The practice is contributing to rising tensions between hospitals and the state, as Willamette Week first reported in June. A Lane County judge in February ruled in favor of PeaceHealth, which had contested the placement of a patient in its Eugene hospital’s psychiatric unit. The judge cited the Oregon Health Authority’s “deliberate failure to make any placement decision,” the publication reported.
Facing off with hospitals in civil commitment cases is becoming more common for Oregon Department of Justice attorneys, who represent the state during litigation.
“We have not had these types of cases in the past, but there are four recent cases in the past six months,” Kristina Edmundson, a spokesperson for the justice department told The Lund Report in an email.
The cases have taken place in Lane, Multnomah, Clackamas and Marion counties.
State Crunch Upends Unity’s Intended Role
The case heard in Clackamas County was particularly noteworthy because the Unity Center was set up in Northeast Portland 2017 to ease a statewide problem in which patients in mental health crisis had been warehoused in hospital emergency rooms without adequate treatment.
Funded by four health systems, Unity was supposed to stabilize patients briefly — primarily housing them in a large room stocked with recliners — before connecting them with services in the community.
Now, however, Unity has been forced to house long-term patients in a facility not designed for it, according to Melissa Eckstein, its president. “Unity Center for Behavioral Health opened in 2017 with the mission of providing short-term stabilization services to as many patients in need as possible,” Eckstein said in a statement. “The Oregon Health Authority’s decision to house multiple civilly committed patients at Unity for long periods of time undermines Unity Center’s mission and ability to serve Oregonians in mental health crisis.”
Eckstein noted that by law, civilly committed patients are the responsibility of the state and committed “to the Oregon Health Authority for treatment.” At the same time, however, Eckstein said there has been a “drastic decline” in Oregon State Hospital’s admissions of civilly committed transfers from community hospitals since December 2019.
“Unity Center continues to have some of the highest numbers of civilly committed patients in our state,” Eckstein said. “This is an important distinction, because while civilly committed patients are the smallest number of our admissions, they account for over 50% of our bed days. With each bed that is occupied by a long-term civilly committed patient, that bed is not available for those in the community experiencing an acute mental health crisis.”
Operated by Legacy Health, Unity was designed and set up to accept acutely ill patients from the systems that fund it: Legacy, Portland Adventist Health, Oregon Health & Science University, and Kaiser Permanente.
Providence Weighs In
When Unity can’t accept patients in crisis, they often stay in hospitals, where there is even less care available to them. Little, if any, reimbursement goes to the health system.
Providence Health & Services, Oregon’s largest hospital system, is now pushing back. The system has litigated two of the four cases of this type tracked by the Oregon justice department.
Providence has seen an uptick in demand for services that are best in settings outside of acute care hospitals, said Gary Walker, a spokesman for Providence. It’s leading to longer hospital stays at Providence facilities, too.
“While the challenge of finding appropriate placement for these patients is not unique to Providence, in some situations we are extremely limited in discharge and placement options whose access is controlled by the state,” Walker said in an email. “This results in multiple impacts, including unnecessarily long hospital stays for patients who should be elsewhere, and reducing resources for other patients who need them. Our acute care facilities are appropriate for serving acutely ill psychiatric patients who typically need to be hospitalized for 7 – 10 days.”
Since December 2019, Providence has been required to “step up and care for individuals who have needs beyond the scope of our programs,” Walker said. “This situation does not best serve this group of patients.”
In recent years, the Oregon State Hospital has admitted fewer and fewer patients who are civilly committed. Mostly that is due to an increase in so-called “aid-and-assist” patients who face criminal charges and need treatment so they can be deemed sufficiently competent to aid in their defense. The state hospital also houses people who plead guilty except for insanity in criminal cases.
A decade ago, the state hospital housed more than 200 patients through civil commitments on an average day. It’s now less than one-tenth that figure. In June 2022, the average daily population was just 15.2 civilly committed patients.
In the last two years, admissions have dwindled to almost nothing for civilly committed patients.
At the same time, however, the hospital has faced adverse rulings for how it deals with patients from other backgrounds, particularly patients in “aid-and-assist” cases, who are being restored for court competency, or patients who were found guilty except for insanity.
In 2002 a judge ordered the state to admit aid-and-assist patients within seven days. But they’ve instead been enduring lengthy waits in county jails without adequate treatment. In May, 67 people in aid-and-assist cases who were waiting for entry to the hospital spent an average of 16.2 extra days in jail before admission. An outside court-ordered expert recommended earlier this year that the state reduce the wait time to seven days or less by Feb. 14, 2023.
Amber Shoebridge, a spokesperson for the health authority said court orders for other types of patients have contributed to the shift in the state hospital’s patient mix.
“If we are to admit patients from acute care, it needs to be a situation where we can do it without violating court orders,” Shoebridge said.
Lawyers Joust In Contempt Proceeding
Court filings in civil commitment cases are sealed. But testimony in the July 7 hearing showed how one patient’s plight became the subject of high-powered legal jousting to avoid responsibility for housing and treating him.
Under questioning from Eric Neiman, the attorney for Unity Center, Angela Hancock, a psychiatric nurse practitioner at the facility, talked about the patient’s symptoms — and the lack of significant improvement — after a three-month stay there.
At times, the patient has swung at staff, threatened to kill workers and pushed and yelled at nurses, Hancock said.
In fact, he’s hit staff so many times, Hancock testified, she doesn’t believe staff are bothering to document every instance. He does not respond to verbal direction.
Hancock said the patient is getting the best care Unity can provide, but it’s not enough: He needs long-term care in a secure psychiatric facility.
Staff also have been forced to put the patient into seclusion, where he has urinated and defecated on floors and been delusional.
When he’s not in seclusion, the patient’s loud banging on windows and doors disturbs other patients in his suite, Hancock said.
Neiman, the Unity attorney, urged the judge not to be swayed by the argument that “some treatment is better than no treatment.” Neiman also questioned whether the state fulfilled its obligation to make a thoughtful, deliberative placement decision.
“To our knowledge, no decision was ever made other than this de facto decision,” Neiman said.
Craig Johnson, the attorney for the health authority, insisted that the state has followed the law, even if Unity Center disagrees with where the patient should be placed.
“He is there receiving treatments, however inadequate they think it could be,” Johnson said.
Eventually, Clackamas County Circuit Judge Colleen Gilmartin granted the state’s motion to dismiss, saying she didn’t see evidence to sustain willful disobedience of the law.
It’s unclear what will happen next as those involved consider their legal options.
As the patient’s parents watched the virtual proceedings, their son’s attorney, Amanda Marshall, said the case was about more than legalities.
“We’re losing sight of the fact that we’re talking about a human being held against his will,” she said. “And he’s not getting any better.”
You can reach Ben Botkin at [email protected] or via Twitter @BenBotkin1.