Two groups have been working separately on legislation for the upcoming session that would make it easier for authorities to order people into mandated mental health treatment in Oregon.
One effort is aimed at lowering the state’s high bar for civil commitment, and the other wants to divert people who commit low-level crimes away from jail and into mandated mental health treatment programs instead.
Both efforts have a common goal: to disrupt the cycle of jail stays, hospitals and homelessness that envelopes the lives of many people who are struggling with severe mental illness but refuse to get treatment.
In Portland, the idea sprung from conversations this past summer at monthly Downtown Public Safety Action Committee meetings, where stakeholders such as Central Precinct police, downtown business owners, nonprofits and private security representatives discuss livability and crime issues in the city’s center.
This committee has long been focused on reducing quality-of-life crimes and other deterrents keeping tourists and locals alike from patronizing downtown establishments.
Discussions earlier this year honed in on how homeless people wandering around in the throes of psychosis is a livability issue that’s also the source of frequent calls for police and security assistance and numerous bad reviews on TripAdvisor. And, the committee noted, it’s also a humanitarian crisis.
When police respond to many downtown disturbance calls, the perpetrator is often charged with a low-level crime such as trespassing, offensive littering or disorderly conduct and taken to jail, where they are booked and released within hours.
Once they are in front of a judge, it may become clear a defendant is not mentally fit to assist in their defense. If they’re charged with a serious crime, they would be sent to the state hospital and stabilized before facing prosecution. In fiscal year 2018, a stay in the state hospital came at an average cost to taxpayers of $1,364 per day, according to the hospitals’ spokesperson, Rebekah Gipson-King.
These instances are known as “aid and assist” cases, and Multnomah County Circuit Court Judge Nan Waller, who handles them, said they’re on the rise.
“People have lots of theories as to why we’ve seen such a big increase, but clearly it’s not just something that’s happening here; it’s happening across the country,” she said.
But in these cases, hospitalization isn’t practical if the person is charged with a lower-level crime. This is because the law doesn’t allow the courts to detain a person any longer than the maximum sentence their crime carries.
For misdemeanor trespassing, for example, that’s just 30 days. Waller said that by the time someone charged with trespassing is admitted to the state hospital, there isn’t enough time left to stabilize the person properly before the courts have to release them.
“So, on low-level misdemeanors, a decision has to be made,” she said.
If the defendant doesn’t meet the high threshold for civil commitment, the case will get dismissed and Waller said she has no other option but to watch someone who she knows is at risk walk back out into the community with no support.
Additionally, state hospital beds are limited. The average wait time for someone under civil commitment to be admitted in 2017 was 20 days.
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At the Downtown Safety Action Committee’s September meeting, Multnomah County prosecutor Nathan Vasquez told attendees that he was working with others in local government to draft legislation that would change state statute in a way that would give courts the option to send low-level offenders back out in the community with a mandatory treatment order. It would serve as an alternative to the costly extremes of jail and hospitalization.
“It’s a big effort that’s grown out of this group,” he told the committee. “But is there a resource?”
Berk Nelson, senior advisor to Mayor Ted Wheeler, said the mayor’s office has been assisting Vasquez in this effort. While prosecutors work on the legislative piece, city and county officials are hoping to establish a large, dual diagnosis facility where low-level offenders struggling with mental-health and addiction issues can be taken instead of jail.
It would be a hospital-like holding facility where people could be stabilized and evaluated for treatment. It could also be a place where families could refer loved ones struggling with mental illness, Nelson said.
The courts would mandate that a person being detained in the facility comply with mental-health treatment, substance-abuse treatment or both. The person wouldn’t be released until they were stable or accepted into a longer-term outpatient program that would ideally come with some sort of housing and other wrap-around services as needed, Nelson said.
Is the city considering Wapato Jail for this holding facility?
Nelson answered that question by saying, “Nothing is off the table.” However, he said, the distance between the jail and services people would need to access in order to get their lives back together is problematic for that location.
“If you are going to try to compel people into treatment on an outpatient basis, you also need to offer housing with those services,” said Bill Osborne, who oversees mental health court and civil commitments for Multnomah County. “I think someone would need at least three months in a place that was stable to get their feet under them.”
Supportive housing that could be used in tandem with mandated outpatient treatment is already in the pipeline locally. If voters approve the metro-wide affordable-housing bond in November, it could help supply the additional housing resources that would be needed for mandated outpatient treatment programs to be effective in the Portland metro area.
FURTHER READING: Elections bring hope for new housing solutions (Director's Desk)
But before county courts can set up systems for mandated mental health and addictions treatment, Oregon laws that govern civil commitments, mandated treatment programs and holds for intoxication must be changed.
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When Becky DelaCruz sees clothing randomly strewn about on public sidewalks, she thinks of her big sister.
One winter, DelaCruz gave her sister, whom we’ll Cathy for this article, a backpack full of clothes to keep her warm. She watched as Cathy pulled out each piece and arranged it on the ground before getting distracted with a cigarette and leaving it all behind.
Once at the top of her class, Cathy was a graduate of Southern Oregon University School of Education and a talented pianist, singer and guitar player. She wanted to work as an elementary school teacher, but her life changed when she began to show signs of schizophrenia in her mid-20s. There were ups and downs, but since the mid-1990s, she had remained relatively stable and on her medication. She got married and moved to Arizona in 2004. About 10 years later, she moved back to Oregon, but her medical care didn’t transition well.
“She fell through the cracks,” DelaCruz said. For the next few years, she watched her sister cycle in and out of hospitals, never getting back to a point of stability and eventually becoming homeless.
Twice, DelaCruz said, a cab dropped Cathy off in Old Town after she was discharged from Cedar Hills Hospital without any medication or coat and nowhere to go. Her family would get her checked into motels and shelters, but inevitably, she would become aggressive or destructive and get kicked out.
She had a religious fixation and was often lost in incoherent conversations with spirits that she said were bringing her messages. She would urinate on the floor and verbally attack just about anyone. She became paranoid that her family was trying to send her back to a psychiatric hospital, and she refused to get treatment.
During her last downward spiral, she was in her 60s and sleeping outdoors. She had lost all her teeth and contacted family only when she needed money. As temperatures dropped in September 2017, DelaCruz began to call the Multnomah County Crisis Line about twice a week with her sister’s location, telling operators Cathy needed help and couldn’t survive on the streets much longer.
Each time, DelaCruz would receive a follow-up call, often from a police officer, telling her that while they agreed it’s obvious that her sister needs help, they had no legal grounds to intervene.
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“If you look at the statute that we work under, it seems fairly vague,” Osborne said. In his work with Multnomah County courts, he oversees investigations for civil commitments.
State statute allows the psychiatric commitment of a person who is a danger to themselves or others or who is not able to meet their basic needs. It would seem that someone like Cathy would meet this definition, but Osborne said that over the years, appellate courts have significantly narrowed the criteria.
People have to be in the observable process of gravely harming themselves or others to be considered. Many behaviors that demonstrate a person is extremely sick, while concerning, do not qualify them for commitment.
“That burden becomes higher and harder to prove when it’s nice weather out,” Osborne said.
“Because people can live outside, and you don’t have to worry about freezing to death. We can’t say, ‘This person is scrounging for food in the garbage can, and that’s bad,’” he said. “As terrible as that is, the courts really look at that and say, ‘Are they ill from that? Can you prove that’s endangering their well-being?’ You would have to then prove someone is getting sick on a regular basis from eating bad food. It is that high level that we have to go for when we’re talking about basic needs.”
Local efforts to amend civil commitment and mandated treatment statutes will likely converge with similar efforts taking place in Salem as Oregon heads into the upcoming legislative session.
A Senate Judiciary workgroup has drafted legislation that would lower the threshold for civil commitment, allowing a judge to take a person’s past behavior into account and extend the potential for danger to themselves or others to the next 30 or 90 days rather than requiring that the danger be imminent. If a person’s deteriorating condition will likely be a graver danger if they continue without help, and if that person has caused themselves harm in the past, the judge could take that information into consideration when deciding whether to commit them or mandate that they accept mental health treatment.
Another bill the workgroup drafted increases the number of days a person can be detained while waiting for a civil commitment hearing from five to 15. This would give investigators such as Osborne more time to put together a case. He currently has about three days to get witnesses and evidence lined up in order to get the hearing scheduled by the fifth judicial day, he said.
In 2017, Osborne’s team of 13 investigators conducted 3,200 investigations.
“Out of those investigations,” he said, “we typically will take on average 8 to 10 percent of those folks to civil commitment hearing. Out of them, we get about 90 percent civilly committed.”
Extending the hold period from five to 15 days may also lead to fewer commitments because it gives the patient more time to become stabilized.
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For DelaCruz, calling the authorities twice a week in a futile attempt to get her sister help continued for four months and well into the winter. Then one night in late December, DelaCruz’s nephew found her sister sleeping on a wet sidewalk in Hillsboro. This time when they called the crisis line, Cathy fled, wearing no shoes. It was this small detail that showed she was posing an immediate danger to herself; it was the middle of winter, and she could get frostbite. This time, she was taken to St. Vincent Hospital and finally stabilized.
“It was a great Christmas present,” DelaCruz said. Her sister now lives in a residential facility in Southern Oregon and hasn’t returned to the streets since.
But not everyone gets the help they need. Some have no family looking out for them, and others have died despite their family’s best efforts to save them.
Josephine County Judge Pat Wolke points to Karen Batts, a 52-year-old woman suffering from schizophrenia who died of hypothermia in a downtown Portland parking garage last year despite her family’s ongoing attempts to get her into a hospital.
Wolke’s jurisdiction is one of two in the state to implement assisted outpatient treatment programming, which allows the court to order someone into out-patient mental health treatment.
“Assisted outpatient treatment is sort of like mental health court for people who don’t commit crimes,” he said.
But Wolke said the statute governing the program is flawed. There are no consequences for not complying, and the court cannot order that a person take their medication. Additionally, when the legislation was passed, it didn’t come with any funding to support it.
Wolke’s been heading up the legislative workgroup in Salem. Before the group decided to focus on lowering the bar for civil commitment, it discussed making some changes to Oregon’s assisted outpatient treatment statute so that it could be more effective and wider in use.
The workgroup, overseen by Senate Judiciary Committee Chair Sen. Floyd Prozanski (D-Eugene), comprises stakeholders including mental health advocates, attorneys, ACLU of Oregon and Oregon Health Authority.
“We’ve resisted doing anything related to AOT (assisted outpatient treatment) in that workgroup because of really significant opposition, by ourselves and others,” said Kimberly McCullough, policy director at ACLU of Oregon.
She said mental health resources aren’t available in a timely matter – or at all – for Oregonians who seek treatment voluntarily. And she said she thinks providers could try more creative ways of reaching people who need help before taking away a person’s civil liberties and mandating that they take medication.
“Assisted outpatient treatment is only as good as the resources that are available,” said Lane County public defender Allison Knight, who has also been involved with the workgroup. And outside of Multnomah County, she said, the resources just aren’t there.
“Our general position is that community mental health services have been chronically underfunded,” said Bob Joondeph, director at Disability Rights Oregon. He’s also opposed changes proposed in the workgroup.
Joondeph said that while he wants to see people get the services they need, he has concerns about going back to the days of warehousing people.
“Treatment should be determined between a patient and a physician,” he said, “and the courts are not well-suited to make medical decisions for anybody.”
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Judge Waller and several workgroup members are traveling to Ohio next week to learn more about the mandated outpatient treatment programs that have been operating in that state for a decade.
One program they’ll visit is run by Judge Elinore Stormer in Akron’s Summit County.
Stormer said that in Ohio, if a person is pretty sick, they will meet Ohio’s criteria for mandated treatment.
That state’s mandated treatment programs also come with consequences. She said she tells participants that if they take their medication, then they won’t have to go to the hospital – an incentive that she said works.
She also has other means of helping patients comply.
“I have a guy who is a bipolar meth user, and I have a crisis officer who takes him to go get his shot,” she said. “I can also take you from my courtroom to hospital.”
As of late September, 217 people in her courtroom had been mandated into outpatient treatment. Of those, just 12 have been referred back, and 99 are still participating in their treatment programs.
She said most people come before her bench after they’re released from the state hospital. While family members could refer a loved one to mandated outpatient treatment, it hasn’t happened. She said families typically wait until the person is so sick they need hospitalization because they don’t want to upset them.
“Our model is one that’s easily replicable, but tailored to fit your community,” she said. “It relies on already existing programs and procedures, but links them in a different way.” She said that makes it relatively inexpensive to operate – especially when the alternative is a costly stay in the state hospital.
Waller said she’s interested to see how Ohio courts are balancing the need for treatment with a person’s civil liberties and whether it seems like a program that could work locally.
While it’s unknown how any of these bills will fare during this upcoming legislative session, it would seem that unless the bar for civil commitment is lowered and more resources are dedicated to getting people with mental illness into housing and health care, little is likely to change on the streets of downtown Portland.
Street Roots will continue to follow the progress of these efforts as Oregon heads into the 2019 session.
Email Senior Staff Reporter Emily Green at emily@streetroots.org. Follow her on Twitter @greenwrites.
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