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Judge’s psychiatric discharge deadlines spawned ‘legal limbo,’ service gaps, locals say

Efforts to fix a bottleneck at Oregon State Hospital have increased problems elsewhere, local officials told lawmakers Wednesday
Oregon State Hospital in Salem. | OREGON HEALTH AUTHORITY
November 8, 2023

A controversial federal court order intended to expedite admissions to the Oregon State Hospital for psychiatric treatment has created a “black hole of unserved people,” according to Marion County’s elected top prosecutor. 

Speaking to a legislative panel Wednesday, District Attorney Paige Clarkson, along with other Marion County officials, raised dire concerns about what they said were the unintended consequences of U.S. District Judge Michael Mosman’s order that limited how long some patients accused of crimes but considered incompetent to assist in their own defense can be housed at the Salem-based psychiatric facility. 

In September 2022 Mosman ordered that patients in the facility accused of misdemeanors must be discharged after 90 days, while those accused of felonies could stay no longer than six months or 12 months for a violent felony. State officials say Mosman’s order is achieving its aim of preventing people experiencing mental illness from languishing in jail without treatment.

But local officials, including in Marion County, have complained that the order is straining resources of counties. They’ve also engaged in legal maneuvers that prompted a stinging rebuke from Mosman last month.

On Wednesday, Marion County officials directly confronted lawmakers with their frustrations and pressed them for a solution. 

Clarkson told the Oregon House Behavioral Health and Health Care Committee that Mosman’s order is creating a “legal limbo” for patients accused of crimes who are discharged from the state hospital but still are not well enough to aid and assist in their defense.

“We cannot move forward with a criminal case against that individual, which means there’s no accountability,” she said, adding that the situation also deprives victims of justice. .”

According to the most recent state data, 110 patients have been discharged who were found by a state hospital evaluator to be incapable of meeting the constitutional requirement that an individual must be found mentally competent before they can stand trial.

Clarkson said that before the Mosman order, Marion County used to have about 20 people in “community restoration,” meaning community-based services and treatments intended to help someone become well enough to face charges. Now the county has upwards of 60, a number she called “unmanageable and unsustainable.”

Of particular concern, she said, are people discharged from the state hospital but can’t be taken in by secure residential treatment facilities because they are too dangerous. Others commit new crimes while on community restoration. None are getting services they need, she said.

“This is that black hole of service that I'm talking about,” she said. “Community restoration, sometimes, it’s just not set up for these individuals.”

Marion County Sheriff Nick Hunter told lawmakers that these individuals end up in jail, which he called the “goofy loop, because we can't put them anywhere else.”

Hunter said jails are unfit to provide restoration treatment services. But he said the jail has to keep housing them, taking up space and putting demands on staff and resources. 

“I continually have to care for these folks,” he said. “But I don’t have anything that tells me where they’re going, when they’re going, how I'm going to get them out of my services.”

Mosman’s order came in response to the state hospital falling out of compliance with an earlier court directive that defendants could not stay in jail for more than seven days if they’re too mentally ill to face charges.

Oregon State Hospital Superintendent Dolly Matteucci presented numbers to the committee showing that the hospital is meeting the seven-day requirement. Numbers presented by Matteucci show that 27% of patients are now discharged because they’ve reached Mosman’s timelines.

Mosman’s order is slated to expire on December 31 unless it is renewed. 

However, Clarkson said she doesn’t expect the Mosman order to go away “anytime soon.” She said that first the Legislature will need to “make some serious changes so that we're dealing with this population and in a responsible and healthy way.”

Mosman’s order has meant more people who need treatment to face charges are now in community restoration services, Cheryl Ramirez, executive director of the Association of Oregon Community Mental Health Programs, told the committee. She presented figures showing that about 630 people are in community restoration services up from the roughly 355 from when Mosman issued his order in September 2022. 

She said the rise in people in community restoration services has meant bigger caseloads in counties across the state and more demand for mental health workers, housing and other services. She said the increased costs could be covered by $7.5 million a year over two years. 

Lawmakers didn’t have time for questions at the end of the hearing. But state Rep. Rob Nosse, a Portland Democrat who chairs the committee, suggested that Ramirez was asking for a relatively modest amount of money. 

Marion County Commissioner Danielle Bethell told lawmakers that in the meantime the situation is straining the county’s resources, noting that  it sued the Oregon Health Authority two months ago for not providing adequate mental health treatment. She said she wants people experiencing mental illness to be given adequate treatment. 

“But that requires money,” she said. 

Correction: An earlier version of this article misstated the amount of money Cheryl Ramirez said would be required for additional mental health services and staffing.The Lund Report regrets the error.

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