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Federal judge considers changes to state hospital discharge order

Changes seek to resolve a conflict between state and federal authorities that prompted the Marion County sheriff to stop transporting discharged Oregon State Hospital patients
Oregon State Hospital in Salem. | BEN BOTKIN/THE LUND REPORT
May 11, 2023

Advocates and officials are asking a federal judge to force the Marion County Sheriff’s Office to resume transporting patients discharged from the state’s psychiatric facility.

The effort in U.S. District Court in Portland represents one of several suggested tweaks to a sweeping federal order issued last September to address a treatment bottleneck at the Oregon State Hospital that has sparked civil rights concerns and numerous lawsuits.

The group Disability Rights Oregon, a public defender law firm and the Oregon Health Authority indicated in court filings Tuesday they want U.S. District Judge Michael Mosman to modify his order mandating deadlines for the Oregon State Hospital to discharge patients to make clear the federal action takes precedence over conflicting state court rulings. Citing past conflicting state orders, the Marion County Sheriff had stopped transporting discharged patients from the facility’s main campus in Salem, The Lund Report reported in March.

New court filings from state judges and Marion County, meanwhile, seek to preserve the authority of state courts and want the federal court to require the state hospital give more information to local authorities about patients scheduled for release. 

The filings are the latest in long-running litigation intended to stop the unconstitutional practice of jailing people experiencing mental illness without adequate care as they wait for admission to the state hospital for treatment intended to restore their ability to assist in their defense against criminal charges. 

The new filings reflect progress made in negotiations between civil rights groups driving the lawsuit, state health officials and local prosecutors. They also point to ongoing areas of disagreement. 

The federal order Mosman issued that set limits on how long patients accused of crimes could be housed in the state hospital sparked concerns among local officials and advocates about public safety and the patients’ well being. The order substantially overrode Oregon state law. 

A group of three prosecutors responded with the rare step of filing objections arguing that the order will mean patients will be returned to communities ill-equipped to care for them. Another group of five local judges also challenged the order, arguing that it infringed on state courts. But Mosman reaffirmed his order in January.   

In their new joint filing, Disability Rights Oregon, Metropolitan Public Defender Services and the health authority spelled out changes they’d like to see to Mosman’s order. 

Under one change, the state hospital would have to give local courts additional notice that a patient will be discharged: 60 days, rather than the current 30 days. The proposed changes specify that the local sheriffs will transport discharged patients from the state hospital back to the county that committed them or to another agreed-upon treatment setting. 

Additionally, the changes would specify that the treatment deadlines in Mosman’s order would take precedence over any state court rulings committing a patient to a longer stay at the state hospital.   

Emily Cooper, the Disability Rights Oregon legal director, told The Lund Report in a statement her group is committed to ensuring that its clients don’t languish in jail. She added that the filings from Marion County and others surprised her. 

Jane Vetto, attorney for Marion County, also submitted proposed changes to Mosman’s order. Under her changes, the state hospital would be required to inform local courts of a patient’s treatment status “either through a continuing care discharge plan or an updated clinical note as appropriate.” 

“At the point of release, OSH will provide the committing court with an updated clinical summary,” reads the text of Vetto’s proposed changes. “Once OSH has provided the required information to the committing court and parties, the sheriff of the committing county shall comply with the relevant state court transport order.”

The group of five state judges including Nan Waller of Multnomah County Circuit Court also filed a brief asking for changes to Mosman’s order, changes that a group of local prosecutors support.. The brief states that the judges “do not disagree” that Mosman can enforce his order. 

In response to a question Mosman asked earlier, the brief recommended that lawyers representing state hospital patients who’ve had their discharge delayed should take their cases to state trial courts rather than to federal court.

The brief also called for the state hospital to provide more information to local courts on patients who are scheduled for discharge. 

It’s now up to Mosman to consider whether to make the requested changes to his order. 

You can reach Jake Thomas at [email protected] or via Twitter @jakethomas2009.