hb 3100 affecting the “front door” of osh 4 major components: a. “gei” misdemeanants no...

HB 3100Affecting the “front door” of OSH

• 4 major components: a. “GEI” misdemeanants no longer under PSRB b. restorative services should be provided in community unless not available or person too dangerous c. mandatory community mh eval for Class C “GEI” defendants for possible CR d. certification of forensic evaluators

SB 420Related to the “back door”

• Created two tiers of criminal offenses—Murder/BM 11 vs. all other crimes

• Divided responsibility for conducting “GEI” hearings between PSRB and SHRP based on tier and physical placement.

i.e. PSRB=Tier 1 and all on CR

SHRP=Tier 2 only while in OSH

The Insanity Defenseand

PSRB/OHA Jurisdiction

Process by which one comes under the Board

• Individual is charged with a new crime.

--No probation violations• Defense counsel seeks an evaluation by a

certified psychologist or psychiatrist, forensically trained, to determine if client qualifies for defense.

--Not every person with mental illness or mental defect necessarily qualifies

Legal standard for insanity defense

GEI if:(1) as a result of md/d at the time of engaging in criminal conduct, the individual lacks substantial capacity either to appreciate criminality of conduct or to conform conduct to requirements of law.

Applicable to felonies, misdemeanors & juvenile proceedings.

Available in DUII and DWS cases

(2) md/d does not include any abnormality manifested only by repeated criminal or otherwise anti-social conduct, nor do they include an abnormality constituting a personality disorder. – This is only statutory “definition” of md/d. Bd

has admin. rule further defining…859-10-005– Md/d in remission is considered md/d for

jurisdiction purposes– Personality disorders excluded in 1983

• What constitutes a “personality disorder” was further defined by the Oregon Supreme Court in Tharp v. PSRB, 338 Or 413 (2005).

• The Court held that alcohol and/or drug dependency is a “personality disorder” as that term is used in ORS 161.295 (2) despite the fact that those diagnoses are found on Axis I in DSM. Result of legislative history.

• The Court of Appeals indicated the same opinion re: sexual disorders in Beiswenger v. PSRB, 192 Or App 38

ORS 161.305

• ‘GEI’ is an affirmative defense

- Defendant must prove by preponderance

- Trial judge cannot impose defense over represented defendant’s objection-- State

v. Peterson

- Trial counsel cannot assert defense over defendant’s objection--State v. Bozman

ORS 161.309

• Defendant must give notice of intent to assert defense

• Notice shall be in writing• If fail to do so, court has discretion to

permit introduction for just cause

ORS 161.315

• Once defendant raises defense, State has right to its own certified psych examination. Must give notice to court. Court may order client to OSH for that assessment for no more than 30 days.

ORS 161.313

• When the defense is raised in jury trial, court must give an instruction.

- but it must be complete and accurate

statement of the law -- State v.George

ORS 161.325

1. Once GEI, either placed under PSRB or OHA (depending on nature of crime and physical placement) or discharged

2. Order shall include:

a) offense for which defendant would have been convicted – determination of Tier I or Tier II

b) if there’s a victim and whether V desires notification

*c) md/d on which defendant relied

d) order to submit blood sample for certain offenses

• Diagnosis on which parties relied is specified

• Victim notification information

• Crime(s) for which client found guilty except for insanity

• Length of jurisdiction set by court

ORS 161.327

• (1)(a) Once GEI, if crime was felony, court shall order psych eval and report to court if one not provided prior to trial. Placed under PSRB or OHA if court finds defendant is affected by md/d and presents substantial danger to others requiring commitment or CR

(1)(b)Length of jurisdiction

Equal to the maximum sentence provided by statute for the crime for which the person was found GEI– Consecutive terms may be imposed but must be

supported by findings comporting with ORS 137.123 -- State v. Brooks

– SGs do not apply -- State v. Nelson– PSRB does not have authority to rewrite court’s order

even if court errs in setting max. sentence -- Romanov v. PSRB

(2)Physical placement upon GEI finding

• (a) Commit to OSH -- if substantial danger and not a proper subject for release

• (b) Conditionally release -- if substantial danger but can be adequately controlled with supervision and treatment and the necessary supervision and treatment are available.

In making decision, court shall have as its primary concern the protection of society.

* This is other determinant of whether Tier 2 offender is placed under OHA or PSRB

(2)(b)Court CR Requirements

• CR to special conditions of the court that are in the best interests of justice, protection of society and welfare of the person

• Court must designate some person or agency to supervise person. Prior to designation, the court shall notify person being considered and provide opportunity to be heard.

• Court shall notify Board in writing of its order, supervisor appointed and all conditions of release.

(4)Determination if Court CR

• Court may order evals, examinations and compliance as provided in ORS 161.336(4) and ORS 161.346(2).

• If defendant is found GEI of Class C felony(ies) only, the court shall order “that the person be examined by a local mental health program designated by the board and a report of the examination be provided to the court”

Order for Court CR EvaluationQuestions to be addressed by

community provider:

• Appropriate for CR? If so, what is necessary for supervision and treatment?

• If appropriate for CR, specific details of treatment plan.

Sample Court Conditional Release Order

• Sample orders for both commitment to OSH (under the jurisdiction of PSRB or SHRP) and conditional release (under the jurisdiction of PSRB) are available electronically from the PSRB.

Result of successful defense

• Placed under PSRB if crime was Tier I felony and court finds defendant is affected by md/d and presents substantial danger to others requiring commitment or CR or if crime was Tier 2 felony and defendant is court conditionally released.

• Placed under OHA (SHRP) if crime was Tier 2 felony and court finds defendant requires commitment.

• Discharged or separate commitment process if misdemeanor

ORS 161.329

• If defendant is no longer affected by md/d or no longer substantial danger to others and is not in need of care, supervision or treatment, the court shall discharge the person.

An adjudication of GEI is not a criminal conviction.

• State v. Gile, 161 Or App 146 (1999). The Oregon Court of Appeals held that a judgment of guilty except for insanity is not a “conviction” for purposes of statutes requiring unitary assessment and allowing awarding of costs.

• State v. Saunders, 195 Or.App. 357 (2004). The Oregon Court of Appeals held that ORS 161.325 provides the plain language that a GEI is not a conviction for any purpose.

Functions of the PSRB

• To accept jurisdiction• To protect the public• To balance the public’s concern for safety

with the rights of the client• To conduct hearings• To make findings• To monitor progress• To revoke CR if client violates plan• To issue orders• To maintain current history of all clients

Mission:

• To protect the public through on-going review of the progress of persons found “guilty except for insanity” and a determination of their appropriate placement.

The Board carries out its mission through 2 arenas:

- Hearings

- Monitoring

Legal Safeguards for Persons Under the Board/Panel• Each is entitled to:

– request hearings– be represented by an attorney, appointed

if indigent– examine all exhibits– subpoena witnesses and documents– cross-examine all witnesses at hearing– appeal any adverse decision of the Board

At Each Hearing, the Board/Panel Must Decide:

• Does the client continue to suffer from a mental disease or defect? AND

• Does the client continue to be a substantial danger to others when mental illness is active?– If not, the Board/Panel shall

discharge the client.

• If so, the Board/Panel maintains jurisdiction. It must then determine:–Could the client be “adequately

controlled with supervision and treatment” in the community?• If not, the client remains committed.• If so, is the supervision and

treatment necessary available in the community at this time?

How Board/Panel assesses readiness for conditional release

planning• Reviews exhibit file that contains the

reports and evaluations of OSH professional staff of various disciplines and others

• Listens to the testimony of all witnesses• Cross examines witnesses to obtain

additional information• Considers the risk to society that the client

may pose if returned to the community

Factors considered: • Clinical judgments of OSH professional

staff• Results of psychological testing and risk

assessments performed on patient• Recommendation of OSH Risk Review

Board• Availability of resources in the community

to compensate for any residual risk

Board’s determination of risk

Evaluation process for community provider

• Receive order and client’s PSRB file• Review entire file• Contact OSH social worker to set appt.• Interview client face-to-face• Write report to Board within 30 days with

reasons for acceptance or denial

Types of residential placements available for PSRB clients

• Secure residential treatment facility (SRTF)• Residential treatment facility (RTF)• Residential treatment home (RTH)• Adult foster home (AFH)• Supported Housing (SH)• Intensive case management (ICM)• Independent living

PSRB Conditional Release Process

Board holds hearing

If Board approves conditional release of patient

Client released to community provider pursuant to specific plan

Case manager oversees provision of required treatment services and supervises client for PSRB

Board staff monitors conditional release status

CR of Tier II Clients

• If OHA determines a Tier II offender is appropriate for conditional release, the SHRP must give notice to the Board prior to conducting a conditional release hearing

• Board will review the proposed plan and provide SHRP with conditions it deems advisable for this person’s conditional release

Tier II Transfer of Jurisdiction

• SHRP conducts hearing and orders conditional release

• Once a Tier II client is conditionally released, jurisdiction immediately transfers to the PSRB

Monitoring:

• EPR “hits” on the Law Enforcement Data System (LEDS) terminal

• Daily calls and correspondence from case managers, providers and others

• Monthly progress reports*

C lient rem ains on C RR equest m odif ications of CR

if/w hen appropria te

R ev iew situation w ith Board staffD eterm ine approp. in tervention

R evoke and return to O SH , if necessary

C lient com pliant w ith term s of re leaseand m enta lly stab le?

Definition of Revocation

• The legal process by which the Board orders the return of an individual on conditional release to the state hospital for evaluation and treatment.

• A revocation order has the same legal effect as an arrest warrant.

• Law enforcement transports individual to OSH

Grounds for revocation

• Reasonable grounds include:

a) violation of the term(s) of the

conditional release plan

b) a change in mental health status

c) absconding from supervision

d) the appropriate community resources are no longer available

Revocation of Tier II Clients

• Jurisdiction of Tier II clients who are revoked by PSRB and returned to OSH reverts to OHA. The Panel then conducts the revocation hearing.

Who OSH can not serve

• Individuals without a valid order• Individuals who only need detoxification• Probation Violators• Municipal Ordinance Violators• Individuals who require treatment for

acute medical conditions that must be provided in general hospitals

• Defendants who have been found able to aid and assist or never able to aid and assist

Involuntary Medications

Not all patients at the state hospital will receive

anti-psychotic medications.

OSH/BMRC can only give patients anti-psychotic

medications if the patient gives his/her informed

consent, or if there is “good cause” to require

medication without informed consent as

defined in OARs.

Involuntary Medication (cont.)

Good Cause has 4 elements for most people: OAR 309-114-0020

1. The patient lacks the capacity to make his own treatment decisions (can’t reasonably understand and weigh the risks and benefits of the treatment options); and

2. The proposed meds will likely restore or prevent deterioration of the person’s mental or physical health, alleviate extreme suffering or save or extend the person’s life; and

3. The proposed meds are the most appropriate treatment for the person’s condition according to current clinical practice and all other less intrusive procedures have been considered and some other factors (dangerousness, seriousness of condition, etc) were considered; and

4. A conscientious effort was made by institution to obtain informed consent from patient.

TWO EXTRA FACTORS must be proven in order to

involuntarily medicate someone who is in the hospital

because they were found unable to aid and assist in

their defense.

These factors are based on the Supreme Court

decision in Sell v. US, 539 U.S. 166,123 S.Ct. 2174

(2003), that address the unique population of patients who have not yet had any

opportunity for adjudication of their case.

1. Medication must not be requested for the sole purpose of restoring competency for trial; and

2. The patient is being medicated because of the patient’s dangerousness or to treat the patient’s grave disability.

OAR 309-114-0020

Adult Client Demographics1/1/2012

Gender: Male 84.4 %

Female 15.6 %

Average Age: 45.4 years old

Ethnicity: Asian 02.2 %

Black 07.3 %

Hispanic 04.5 %

Native American 02.8 %

White 82.2 %

Other 01.0 %

Primary Diagnoses: Schizophrenia

Bi-Polar Disorder

Secondary Diagnosis: Substance Abuse

Adult Clients by Crime Categories

1/1/2012

98.4% for Felony Offenses• A Felony – 53.4%• B Felony – 22.5%• C Felony – 10.6%• Unclassified – 13.5%

1.6% for Misdemeanor Offenses

* Numbers as of 12/31 of given year

Adult Clients under PSRB(by Year*)

2011 731

2010 741

2009 752

2008 744

2007 745

2006 712

2005 704

2004 712

2003 646

2002 595

2001 583

Clients under SHRP

• On January 1, 2012, OHA/SHRP assumed jurisdiction of 122 Tier 2 clients who were residing in OSH.

Adult Clients Snapshot as of January 1, 2012:

615 – Total clients605 – for felony offenses = 98.4%

Crime categories:A = 53.4%B = 22.5%C = 10.6%Unclassified = 13.5%

10 – for misdemeanor offenses = 1.6%

18 – Other (UL, DOC, AWOL, etc.)

184 – in Oregon State Hospital

11 – have been found appropriate for conditional release by the Board

24 – have had community evaluations ordered through hearings

413 – on Conditional Release

10 – out of state or country

403 – in Oregon in 21 different counties

18 % = Secure residential treatment facilities 29 % = Residential treatment facilities/homes13 % = Adult foster homes 15 % = Semi-independent or supported housing 3 % = Intensive Case Management20 % = Independent (i.e., alone; with family; with others) 2 % = Other

in various types of residential settings:

Adult Tier One PSRB Clients Snapshot as of January 1, 2012:

464 Terms (458 Clients)

464 – for felony offenses = 100 %Crime categories:

A = 57.5 %B = 24.8 %C = 0 %Unclassified = 17.7 %

0 – for misdemeanor offenses

14 Terms (14 Client) – Other (UL, DOC, AWOL, etc.)

201 Terms (182 Clients) – in Oregon State Hospital

11 – have been found appropriate for conditional release by the Board

24 – have had community evaluations ordered through hearings

263 Terms (262 Clients) – on Conditional Release

19 % = Secure residential treatment facilities 24.6 % = Residential treatment facilities/homes 14.1 % = Adult foster homes 16 % = Semi-independent or supported housing 4.6 % = Intensive Case Management 19.4 % = Independent (i.e., alone; with family; with others) 2.3 % = Other

Adult Tier Two PSRB Clients Snapshot as of January 1, 2012:

160 – Terms (159 – Clients)

150 – for felony offenses = 93.75 %Crime categories:

A = 40.7 %B = 16.0 %C = 0 %Unclassified = 0.6 %

10 – for misdemeanor offenses

4 Terms (2 Clients) – Other (UL, DOC, AWOL, etc.)

2 Terms (2 Clients) – in Oregon State Hospital awaiting transfer of jurisdiction

151 – on Conditional Release

14.9 % = Secure residential treatment facilities 33.9 % = Residential treatment facilities/homes 12.3 % = Adult foster homes 16.2 % = Semi-independent or supported housing 1.3 % = Intensive Case Management 20.1 % = Independent (i.e., alone; with family; with others) 1.3 % = Other

154 Terms (153 Clients) – on Conditional Release

1402011 63

2010 63

2009 82

2008 70

2007 106

2006 81

2005 84

2004 126

2003 110

2002 78

2001 76

New Adult Clients(by Year)

Adult Clients at OSH(approximate as of 12/31 of given year)

Adult Clients on Conditional Release

(by Year*)

2011 413

2010 375

2009 370

2008 367

2007 379

2006 354

2005 314

2004 294

2003 263

2002 258

2001 241

Adult Clients on CR by Crime Categories

1/1/2012

97.6% for Felony Offenses• A Felony – 50.5%• B Felony – 20.3%• C Felony – 14.6%• Unclassified – 12.2%

2.4% for Misdemeanor Offenses

Percentage of Adult Clients on Conditional Release

(numbers as of 12/31 of given year)

2011 56.5%

2010 50.6%

2009 49.2%

2008 49.3%

2007 50.9%

2006 49.7%

2005 44.6%

2004 41.3%

2003 40.7%

2002 43.4%

2001 41.3%

Court Conditional Releases

352011

Adult Clients Revoked from Conditional Release

(by Year)

Definition of Recidivism

• The percentage of revocation orders that are issued based on a new felony charge.

Recidivism Rate Percentage of Revocations of Conditional Release Based on Commission of a Felony

On CR * Revocations New Felonies Percentage

1997 181 40 0 0.00%

1998 194 56 0 0.00%

1999 219 33 1 3.00%

2000 235 44 0 0.00%

2001 241 39 1 2.60%

2002 258 47 5 10.60%

2003 263 56 1 1.80%

2004 294 72 1 1.40%

2005 314 68 0 0.00%

2006 354 54 1 1.90%

2007 379 59 2 3.40%

2008 367 41 1 2.40%

2009 370 33 0 0.00%

2010 375 30 1 3.30%

Average = 2.2%

Percentage of Adult Conditional Releases Maintained

in Community per Month

0%70.0%

100.0%

Current Adult Clients on Conditional Release in Given County

(1/1/2012)

Benton 4

Clackamas 19

Columbia 21

Coos 8

Deschutes 15

Douglas 2

Hood River 1

Jackson 21

Jefferson 1

Josephine 8

Klamath 6

Lane 23

Lincoln 4

Linn 3

Malheur 13

Marion 53

Multnomah 140

Polk 2

Umatilla 31

Washington 19

Questions?

PSRB Contact Information

Mary Claire Buckley, J.D. Exec. Director

Psychiatric Security Review Board

620 SW Fifth Ave. Suite 907

Portland, OR 97204

Phone 503-229-5596/Fax 503-229-5085

OSH Legal Affairs Department Contact Information

Micky Logan, J.D.

Oregon State Hospital

2800 Center St NE

Salem, OR 97301

Phone 503-947-2937

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