Oregon State Hospital must limit how long it treats patients who need care before they can defend themselves against criminal charges, a federal judge has ordered this week.
The new order requires the state hospital to treat and restore patients on strict deadlines, based on the severity of the charges rather than their treatment progress.
While disability rights advocates lauded the ruling as a move that will help patients avoid additional jail time as they wait for admission to the hospital, it drew criticism from county prosecutors. Limiting treatment of these patients — in some cases to 90 days — say district attorneys, could result in premature discharges that pose a public safety risk to their communities.
Most people, statistically, will finish their treatment within those deadlines. Advocates hope this encourages more investments in community mental health programs and resources, so that the criminal justice system isn't the safety net. The idea is that if there are more community resources, people can get help before they get arrested.
But prosecutors worry about what will happen in the meantime. Washington County District Attorney Kevin Barton called the situation a result of a “complete failure of leadership” at Oregon Health Authority. And, he said, the crisis came with plenty of warning.
The order on Monday from Judge Michael Mosman marks a milestone stemming from a 20-year-old federal case. Both the current and historic case are centered on the same issue: The state-run psychiatric hospital’s inability to admit patients in a timely fashion after a judge determines they need treatment before they can aid in their own defense. These cases are called “aid-and-assist” cases.
The order is the culmination of a renewed push to get patients in and out of the hospital faster. Changing the hospital’s discharge policies is intended to help aid-and-assist patients avoid lengthy stays in jail while they wait to be admitted into Oregon State Hospital.
When the patients’ admission to the hospital is delayed, they can sit in jail for a month or longer with delayed proceedings and no conviction yet on pending charges.
The judge’s move is intended to bring the hospital in compliance with a prior 2002 court order that requires it to admit an aid-and-assist patient within seven days of receiving a court order. The 62 aid-and-assist patients who were admitted to the state hospital during May of this year had an average wait time of 31 days, according to a report by Dr. Debra Pinals, an outside neutral party with a behavioral health background hired as part of a legal settlement between the state and Disability Rights Oregon. The hospital could come into compliance with the seven-day requirement as early as February 2023 with the changes.
The move paves the way for the crowded hospital to discharge about 100 patients back to county mental health providers, which would help it to admit those who are waiting for treatment sooner, officials at the Oregon Health Authority said. This week, more than 75 aid-and-assist patients are waiting for admission to Oregon State Hospital for treatment.
“We have an end in sight to this constitutional crisis and that is promising,” said Emily Cooper, legal director of Disability Rights Oregon, a federal watchdog and advocacy group that sued Oregon over the issue along with the Metropolitan Public Defender.
The order is based on Pinals’ recommendations to the state hospital and advocates.
The deadlines to treat and restore patients are:
- For patients facing only a misdemeanor charge, the hospital will have up to 90 days or the maximum sentence allowed, whichever is shorter.
- For patients facing a felony, the state hospital will have up to six months, or up to a year if it’s a violent felony.
The Goal: Opening Up More Space
Aid-and-assist patients make up the bulk of Oregon State Hospital’s population. The state hospital currently has 409 aid-and-assist patients and a total capacity of 705 beds between its main hub in Salem and a satellite campus in Junction City.
Historically, most aid-and-assist patients are finished with treatment in less than six months. But outliers, sometimes treated for a year or longer, take up resources, Pinals’ report said.
Since 2012, 15.5% of aid-and-assist patients stayed longer than six months, the report said. That’s 909 patients who accounted for 321,375 inpatient bed days across a decade. Had a six-month limit been in place during that time, the hospital would have had the equivalent of about 40 more beds each year for more patients, the report said.
Meanwhile, as people wait for treatment in jails, they’re often in solitary confinement while presumed innocent, Cooper said, calling the extra wait times a “dire” situation.
“Jails try really hard, but they’re designed to punish, not treat,” Cooper said.
Under the new order, when the state hospital fails to restore the patient to competency within the time limit, it will send the patient back to their county. Counties will get 30 days notice to plan the patient’s placement.
The Oregon Health Authority, which runs the state hospital, declined to make anyone available for an interview with The Lund Report.
In an email, agency spokesperson Amber Shoebridge said the approximately 100 patients eligible for discharge will be sent back to their counties in a staggered fashion during the next six months. Community mental health providers in counties will determine where they go.
“I look forward to working with our community partners to find the best solutions for people returning to the community,” OHA Director Patrick Allen said in a prepared statement.
The Mink Ruling
The original order in 2002, that required Oregon State Hospital to admit patients within seven days of receiving the court order, was called the Mink ruling.
Disability Rights Oregon, which had brought the original lawsuit forward as the Oregon Advocacy Center, went to court again in 2019 when the state failed to comply with the ruling. In June of that year, the federal court ordered the state to comply with the Mink ruling within 90 days.
The state accomplished that goal, but requested latitude in court when COVID-19 hit in 2020, saying it needed the flexibility to prevent the spread of the virus. Disability Rights Oregon opposed that on constitutional grounds. By 2021, the state and Disability Rights Oregon negotiated an interim settlement agreement, which resulted in Pinals’ recommendations and ongoing reports.
The latest step is promising, but not the final one, Cooper said. Pinals’ report makes other recommendations, such as more investments in community mental health programs and alternatives to the state hospital.
“I think it’s reasonable to expect it’s going to take many steps and many dollars to get out of this problem,” Cooper said. “At the end of the day, I firmly believe and I stand behind Dr. Pinals’ report.”
Counties Weigh In
The case has attracted the attention of counties that run the criminal justice systems and jails that aid-and-assist patients flow through.
Three district attorneys — Clackamas County DA John Wentworth, Marion County DA Paige Clarkson, and Washington County DA Kevin Barton — joined together in asking the judge in this case to let them appear in federal court about the issue, given the impacts for Oregon communities.
“Any judicial remedy will directly impact the role of prosecution, and the role of prosecution will in turn impact the effectiveness of any judicial remedy,” stated their motion.
In a separate statement, the district attorneys said they are concerned the reduced treatment times for defendants will lead to their premature discharge from the state hospital.
In an interview, Barton said the changes at the state hospital create uncertainty for counties and prosecutors. For example, Barton said, he does not know how many of the roughly 100 people slated for release statewide will return to Washington County or who those people are.
“One of my big criticisms is the lack of transparency and coordination and information to allow for safety, planning and a smooth rollout,” he said. “A lot of people are left in the dark.”
The primary concern is cases involving people with serious charges like rape, murder, sodomy and sexual abuse, Barton said.
“Those are the ones that keep me up at night,” he said.
His main concern is about where people will go, especially if they face a pending violent felony charge, Barton said, adding the system also needs to remember the rights of crime victims.
“How do you treat them in the community in a non-secure facility and make sure the victim is safe and the people around them are safe. How do you keep people safe?” he asked.
Barton said he agrees with the plaintiffs that defendants should not endure lengthy waits in jail without a timely admission to the state hospital.
But he pointed to an Oregon Health Authority letter sent to officials about the changes to the treatment lengths. That letter says the hospital has had an “unprecedented increase” in admissions since 2018.
“They’ve had plenty of time,” Barton said. “They’ve known about this for years now.”
Barton said the hospital needs to increase its beds and staffing to address the problem.
At this stage, it’s unclear if the prosecutors' input will change how the judge rolls the plan out. The federal judge allowed the outside expert’s recommendations to start, but also granted a request from counties to provide the court with legal information about the issue in a brief.
That brief is due by Sept. 28, and then the plaintiffs and defendants in the case can respond by Oct. 11.
This story was updated on Sept. 1 to include an interview with Washington County District Attorney Kevin Barton.