In a court hearing Monday, a federal judge gave no sign he will rescind an order he issued in September that put strict deadlines on how long mentally ill patients sent to the Oregon State Hospital by the criminal justice system can be kept there for treatment.
The release schedule and other aspects of the order prompted objections from Oregon’s three largest health systems, multiple state court judges, Marion and Washington counties, and the district attorneys for Marion, Washington and Clackamas counties, who all filed motions to intervene in the case.
The deadlines apply to so-called “aid and assist” patients: people who have been charged with a crime, found unfit to aid in their own defense, and sent to the state’s psychiatric hospital to receive treatment with the goal that they are eventually able to stand trial.
In 2019, Disability Rights Oregon and Metropolitan Public Defender reactivated 20-year-old litigation against the Oregon Health Authority, saying that aid and assist patients have been stuck in county jail cells for weeks or months without treatment and in violation of their constitutional rights.
Under U.S. District Judge Michael Mosman’s September order, patients accused of felonies can be held at the hospital for treatment for a maximum of one year before they must either be returned to jail to face charges or sent somewhere else. For misdemeanors, the maximum hospital stay is 90 days.
The court also ordered the hospital to stop admitting patients who are civilly committed — when someone is forced into psychiatric treatment, a relatively rare occurrence in Oregon — with an exception only for people who are deemed dangerous to others.
The point of the deadlines is to ensure that beds at the state hospital turn over more quickly so that aid and assist patients can be admitted more quickly from county jails. By law, the state is required to move such patients into the state hospital within seven days, something they have frequently failed to do in recent years.
In briefings and in court Monday, attorneys representing the counties, the judges and the hospitals asked Mosman to rescind or partially rescind his order.
County officials argued they lack the capacity to care for such patients, who could end up back in local jails awaiting trial. Hospital system representatives said the limit on accepting civil commitment patients would mean the hospitals would be stuck caring for people with nowhere else to go even though hospital-level care may not be appropriate. And an attorney representing several district attorneys sought modifications to the order giving prosecutors more discretion in individual cases.
In his opening and closing remarks, Mosman gave the parties little reason to think he was reconsidering.
“The Constitution requires something better than allowing people who cannot aid and assist to languish in jails,” Mosman reminded the parties at the outset of the hearing.
Officials from the Oregon Health Authority and the plaintiffs in the case say the release schedule will allow the Oregon State Hospital to come into compliance with the seven-day requirement by February 2023.
Mosman noted that none of the alternatives proposed by the parties trying to intervene in the case would create capacity to move mentally ill defendants out of jail in the short or medium term.
After hearing oral arguments Monday, Mosman said he would make his ultimate decision in writing, but “for now assume we are moving forward,” he said.
Attorneys for Marion and Washington counties argued that Mosman had failed to follow the proper legal standards in issuing the order and should not have overruled a recent state law that had established three years as the maximum length of stay for aid and assist patients at the hospitals.
They said the order shifted costs and legal liability from the state to county jails and health departments.
The counties lack beds, particularly in secure treatment facilities, the attorneys said. They also argued that the deadlines would result in more patients returning to jail and then refusing to take their medication.
“The more hospital level of care, for psychotic and schizophrenic patients, the more they take their medication, the more stable they will be,” said Jane Vetto, Marion County counsel.
The judge pushed back.
“Your premise is, the longer they are in, forced to take their meds, the more stable they will be when they get out,” Mosman said. “That premise isn’t backed by social science research.”
Oregon’s largest health systems, Providence Health, Legacy Health and PeaceHealth also sought to reverse the order, saying that it unlawfully prioritizes aid and assist patients over civil commitment patients.
The health systems argued that with too few specialized residential treatment beds available in Oregon, many of the patients who are discharged from the state hospital will wind up warehoused in community hospitals. At the same time, the order directs the state to stop admitting civilly committed patients — people not accused of any crime, but found by a judge to be unable to care for themselves due to mental illness.
Some of the same health systems have recently sued OHA over the state hospital’s failure to find long-term placements for civilly committed patients held at community hospitals.
Attorney Eric Neiman with the firm Lewis Brisbois represented the hospitals. Neiman said Mosman’s order had given the state “safe harbor” for its failure to deal with the civilly committed population.
Neiman said around 500 people are civilly committed in Oregon each year. So far this year, just 10 had gone to the state hospital.
“Ninety to 95% of the long term treatment capacity is with the state hospital. A lot of these individuals need to be there,” he said.
Former U.S Attorney Billy Williams, representing the district attorneys, took a different tack. He did not challenge the legality of Mosman’s order. Instead, he said district attorneys want modifications to the order — among them, the ability for DAs to seek longer deadlines for some individual patients based on their past criminal histories, and more advance notice before patients are discharged and returned to county custody.
Williams urged Mosman to convene a settlement conference to give all the parties a chance to negotiate over the order.
Given a chance to respond, attorneys representing the plaintiffs in the case, Disability Rights Oregon and Metropolitan Public Defender, said that much of the evidence brought by the interveners was anecdotal, inadmissible or factually incorrect.
Emily Cooper, with Disability Rights Oregon, noted that her organization also formally represents people who have been civilly committed.
Comparing the plight of mentally ill people in county jail cells, where no treatment is available, and those in hospitals awaiting placement in long term care is inappropriate, the plaintiffs’ attorneys argued.
Mosman indicated that a few of the arguments he’d heard in the hearing might have swayed him, in particular the idea that he needs to issue formal findings in the case. Mosman said he would consider “refining the order so it moves forward in a more streamlined way.”
He also said the intervenors would be given an opportunity to participate — informally at first — in ongoing settlement discussions between Disability Rights Oregon, Metropolitan Public Defender, and the Oregon Health Authority.