Long-running case involving defendants and the Oregon State Hospital back in court

District attorneys and hospitals are unhappy with a Sept. 1 federal order

By: - November 23, 2022 5:45 am

The Oregon Health Authority oversees the Oregon State Hospital in Salem. (Oregon Health Authority)

Oregon State Hospital operations continue to be at the center of a federal case over timely admissions to ensure people are treated before facing criminal charges.

The long-running case was back in U.S. District Court in Portland on Monday, with a judge hearing from attorneys representing hospitals, district attorneys and Disability Rights Oregon over a judicial order requiring the Oregon State Hospital to treat patients facing criminal charges within a prescribed timeline so they can aid in their defense. These patients are known as “aid-and-assist” cases. 

District attorneys are unhappy with the order, as are hospitals that treat people for psychiatric conditions. Both sides made their case on Monday before U.S. District Judge Michael Mosman, who signed the order Sept. 1.

It allows up to 90 days of treatment for people charged with misdemeanors, six months for nonviolent felonies and one year for violent felonies. After that, the state’s psychiatric hospital is required to discharge patients into the custody of their counties. 

Mosman indicated that he will clarify his order to reflect some of their concerns. 

Various concerns

Counties, prosecutors and hospitals have all raised concerns about the order’s potential impact on public safety and mental health treatment for those involved in the criminal justice system.

They want Mosman to reconsider the order. At the same time, they acknowledged that Oregon needs solutions to the festering problem of suspects languishing in jail for months or longer. 

Billy Williams, a former U.S. federal attorney and a lawyer representing Oregon district attorneys in Clackamas, Marion and Washington counties, urged “practical solutions” for Oregon to “fix a broken system.”

“What an opportune time for the state of Oregon to actually do something to fix the problem,” Williams said, noting that the state has a new incoming governor and will have new leadership at the Oregon Health Authority, which oversees the psychiatric hospital. The agency’s director and its head of behavioral health are stepping down

“Where all this lands is yet to be seen, but the reality is as I view this is we can go on for years litigating what the issues are – we can do that – but we can also come up with solutions,” Williams said. 

He added: “I’m not interested in the blame game; those efforts are meaningless to me.”

At the heart of the dispute is a 20-year-old lawsuit. centered on the plight of people facing criminal charges who are sitting in jails because they can’t get treatment promptly. A court order in that case called on the hospital to admit them within seven days of a judge determining they needed mental health treatment to aid in their defense. 

The number of people waiting in jail to go to Oregon State Hospital after a court order fluctuates. But it’s currently about 90 people, according to attorneys for Disability Rights Oregon and Metropolitan Public Defender. 

Disability Rights Oregon, then called the Oregon Advocacy Center, filed the original lawsuit with Metropolitan Public Defender, a nonprofit law firm that contracts with Oregon to provide public defense services. They returned to court in 2019 after the state failed to consistently comply with the order. 

In December 2021, the court appointed an outside neutral expert to make recommendations to address the hospital’s capacity problems. The recommendations that followed included new timelines for treating patients. 

The outside expert, Dr. Debra Pinals, director of the Program in Law, Psychiatry and Ethics at the University of Michigan, recommended tighter time frames to restore people to competency – among other reforms.

Groups join case

In response to the Sept. 1 order, various groups moved to intervene – or join the case, including hospitals and district attorneys worried that people facing criminal charges would fall through the cracks if they didn’t get adequate treatment and returned to counties lacking the resources to care for them.

Thomas Carr, Washington County’s lead counsel, said the county is concerned that the order doesn’t provide any discretion to hold people past the deadlines if they still need hospital care.

While most people are treated in 180 days, he said, “there are still people who need treatment after” who will be released too soon. Carr said he was concerned that dangerous suspects might be released and pose a threat to the community. 

Portland-area hospitals also want the order changed.

Eric Neiman, an attorney for Legacy Health, PeaceHealth and Providence Health & Services, said it doesn’t take into account the needs of the state’s population of civilly-committed people who need treatment in a secure residential treatment facility so they don’t harm themselves or others. Neiman said the focus on aid-and-assist cases limits opportunities for civilly-committed people to get the care they need at the state hospital. Unable to get into Oregon State Hospital, many people who are civilly committed end up in other hospitals, sometimes for long stretches. Hospital officials say this puts a burden on their systems. 

In recent months, hospitals have taken the unusual step of suing the Oregon Health Authority when the agency declines to send patients in civil-commitment cases to the state hospital, according to a report in The Lund Report

About 500 people a year are civilly committed in Oregon, Neiman said. 

Neiman said hospital officials think their interests were never presented to the court, calling it a “remarkable omission.”

Emily Cooper, an attorney for Disability Rights Oregon, said it’s wrong to say the plaintiffs are trying to help the aid-and-assist population at the cost of the civilly-committed patients. 

The advocacy watchdog has “standing to represent the issues of all people with disabilities in Oregon,” Cooper told the court.

Cooper noted that the settlement agreement – and Sept. 1  order – came about after the parties agreed to work with Pinals when wait lists were not going down.

“We weren’t seeing the needle shift,” Cooper said.

After the hearing, Cooper told the Oregon Capital Chronicle that while the problem isn’t close to being solved, the fact that the judge is incorporating the expert’s recommended plans for compliance into the order – and the state isn’t opposing it – is a major step forward. 

“That’s markedly different from where we were three years ago,” Cooper said. 

Mosman indicated he’ll work on refining his order, such as clarifying that someone who is able to participate in their criminal case and returns to jail can return to the hospital for treatment if they end up needing more treatment. He thanked the parties for their willingness to be candid about the issue.

“I recognize that it’s difficult for lawyers to look a judge in the face and say you’re wrong,” Mosman said.


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Ben Botkin
Ben Botkin

Ben Botkin covers justice, health and social services issues for the Oregon Capital Chronicle. He has been a reporter since 2003, when he drove from the Midwest to Idaho for his first journalism job. Botkin has won multiple awards for his investigative and enterprise reporting, including on education, state budgets and criminal justice.