Oregon State Bar Bulletin — DECEMBER 2004

Parting Thoughts
State Hospital Needs Our Help
By Bob Joondeph

There is trouble at Oregon State Hospital. So what else is new? The Oregonian’s reports of sex-abuse and hush money in the 1990s may seem like old news, but the hospital’s problems are not: deteriorating buildings, some of which are over 100 years old; chronic over-crowding with patients sleeping in closets and seven to a room; chronic under-staffing with nursing, psychiatric and therapist positions remaining vacant for months and years. And don’t forget the 70-plus patients who have been found clinically ready to leave the hospital but can’t because of the lack of step-down community living arrangements. Despite recent efforts to bring relief, things are getting worse.

Why? One cause may be state budget cuts that have left thousands of Oregonians without community mental health and chemical dependency treatment. Another contributor may be Oregon’s methamphetamine epidemic that has created a new cadre of psychotic and neurologically damaged individuals. Some observe that Measure 11 has changed the calculus used by defendants who are deciding whether to assert an insanity defense. Traditionally, a successful insanity defense resulted in more time in custody. Now, due to longer sentences and the sanctions of prison discipline related to behavior problems, a defendant cannot count on a shorter ride in the custody of the Department of Corrections.

One tool that the hospital used for years to control its population was taken away by the Ninth Circuit Court of Appeals in Oregon Advocacy Center v. Mink, 322 F.3d 1101, (2003). ORS 161.370 requires defendants who have been found mentally incapable of facing criminal charges to be committed to a state hospital or released. It was the practice of OSH to refuse transfer of such inmates from jail for weeks or months in order to control the hospital census. The Ninth Circuit upheld Judge Panner’s determination that this practice violated the substantive and procedural due process rights of the inmates and his injunction requiring OSH to admit mentally incapacitated criminal defendants within seven days of a judicial finding of incapacitation. In is interesting to note that OSH still employs a similar tactic for inmates who are awaiting a determination of their fitness to proceed under ORS 161.365.

Whatever the cause, we do know that Oregon’s jails and prisons have recently been flooded with mentally ill inmates and that state hospital admissions of "criminally insane" patients have grown three times faster than planned. Despite the efforts of state and county officials to create new community placements with the money at hand, they are being overwhelmed by the numbers of new customers and hamstrung by the need to use scarce resources to maintain the crumbling infrastructure of Oregon State Hospital. (And no, the problem is not that Dammasch Hospital closed. We would have even fewer services available if Dammasch were still around.)

The solution? This is not a case of not knowing what to do. Nor is it a case of competing interests: staff working conditions, patient treatment and the public purse would all benefit from the changes suggested by the just-released report of the Governor’s Mental Health Task Force. Among key task force recommendations are the following:

The good news is that the governor and the legislature have gotten the message. In November, the legislature’s Emergency Board permitted the shifting of funds within the Department of Human Services to support the creation of 75 new community placements for OSH patients and to go forward with a planning process for addressing the hospital crisis. The question remains whether the 2005 legislature will maintain its resolve to tackle the OSH problem in light of the massive budgetary shortfalls. Not doing so, to paraphrase hospital-speak, would constitute self-harming behavior.

The task force recommendations will take strong leadership to achieve. They will require a short-term influx of money to construct a smaller and/or refocused modern hospital and community facilities needed to accept the present residents of Oregon State Hospital. They will require collaboration among state agencies including the Department of Corrections and the Oregon Youth Authority to assure that acute psychiatric services are available for their inmates.

It is worth the investment. Transforming OSH and accompanying changes in how we use state hospitals will free our mental health system of a gigantic financial weight and allow the dedicated OSH staff to work in safer, more efficient environments. Patients will be safer and receive better treatment. The 25 percent of the state mental health budget that is dedicated to state hospitals will be more available to leverage federal matching funds. Compassionate care and community safety will be best realized by implementing a more modern, cost-effective approach to mental health treatment. The governor and legislature deserve our support to get this job done.

© 2004 Bob Joondeph

The author is the executive director of Oregon Advocacy Center.

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