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HB 3100
Affecting 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 420
Related 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 Defense
and
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 Evaluation
Questions 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
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*
Client compliant with terms of release
and mentally stable?
Yes
No
Client remains on CR
Request modifications of CR
if/when appropriate
Review situation with Board staff
Determine approp. intervention
Revoke and return to OSH, if necessary
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
47
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
Involuntary Medication (cont.)
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.
Involuntary Medication (cont.)
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.
Involuntary Medication
(cont.)
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 Demographics
1/1/2012
Gender: Male
Female
84.4 %
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
Adult Clients under PSRB
(by Year*)
800
750
700
650
600
550
500
450
01
0
2
03
0
2
* Numbers as of 12/31 of given year
05
0
2
07
0
2
09
0
2
11
0
2
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 clients
605 – for felony offenses = 98.4%
10 – for misdemeanor offenses = 1.6%
Crime categories:
A = 53.4%
B = 22.5%
C = 10.6%
Unclassified = 13.5%
10 – out of state or country
413 – on Conditional Release
403 – in Oregon in 21 different counties
in various types of residential settings:
18 % = Secure residential treatment facilities
29 % = Residential treatment facilities/homes
13 % = Adult foster homes
15 % = Semi-independent or supported housing
3 % = Intensive Case Management
20 % = Independent (i.e., alone; with family; with others)
2 % = Other
11 – have been found appropriate for conditional release by the Board
184 – in Oregon State Hospital
18 – Other (UL, DOC, AWOL, etc.)
24 – have had community evaluations ordered through hearings
Adult Tier One PSRB Clients Snapshot as of January 1, 2012:
Crime categories:
A = 57.5 %
B = 24.8 %
C=0%
Unclassified = 17.7 %
464 – for felony offenses = 100 %
464 Terms
(458 Clients)
0 – for misdemeanor offenses
263 Terms (262 Clients)
– on Conditional Release
5 – out of state or country
258 – in Oregon in 20 different counties
in various types of residential settings:
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
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
14 Terms (14 Client) – Other (UL, DOC, AWOL, etc.)
Adult Tier Two PSRB Clients Snapshot as of January 1, 2012:
160 – Terms
(159 – Clients)
Crime categories:
A = 40.7 %
B = 16.0 %
C=0%
Unclassified = 0.6 %
150 – for felony offenses = 93.75 %
10 – for misdemeanor offenses
154 Terms (153 Clients)
151––on
onConditional
ConditionalRelease
Release
5 – out of state or country
149 – in Oregon in 19 different counties
in various types of residential settings:
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
2 Terms (2 Clients) – in Oregon State Hospital awaiting transfer of jurisdiction
4 Terms (2 Clients) – Other (UL, DOC, AWOL, etc.)
New Adult Clients
(by Year)
140
120
100
80
60
20
11
20
09
20
07
20
05
20
03
20
01
40
2011
63
2010
63
2009
82
2008
70
2007
106
2006
81
2005
84
2004
126
2003
110
2002
78
2001
76
Adult Clients at OSH
(approximate as of 12/31 of given year)
2011
300
2010
350
2009
367
300
2008
362
250
2007
351
200
2006
343
2005
375
2004
403
100
2003
368
50
2002
322
0
2001
327
400
350
150
01
0
2
02
0
2
03
0
2
04
0
2
05
0
2
06
0
2
07
0
2
08
0
2
09
0
2
10
0
2
11
0
2
Adult Clients on Conditional
Release
(by Year*)
450
400
350
300
250
200
150
01
0
2
03
0
2
* Numbers as of 12/31 of given year
05
0
2
07
0
2
09
0
2
11
0
2
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)
60.0%
50.0%
40.0%
20
11
20
09
20
07
20
05
20
03
20
01
30.0%
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
35
30
25
20
15
10
5
0
01
0
2
02
0
2
03
0
2
04
0
2
05
0
2
06
0
2
07
0
2
08
0
2
09
0
2
10
0
2
11
0
2
2011
22%
2010
14%
2009
16%
2008
13%
2007
15%
2006
15%
2005
26%
2004
25%
2003
22%
2002
32%
2001
30%
Adult Clients Revoked from
Conditional Release
(by Year)
80
60
40
20
20
11
20
09
20
07
20
05
20
03
20
01
0
2011
27
2010
30
2009
33
2008
41
2007
59
2006
54
2005
68
2004
72
2003
56
2002
47
2001
39
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%
* Numbers as of 12/31 of given year
Percentage of Adult Conditional Releases
Maintained
in Community per Month
99.44%
99.30%
99.30%
99.10%
98.50%
98.70%
98.20%
98.7%
98.3%
90.0%
98.4%
95.0%
98.5%
100.0%
85.0%
80.0%
75.0%
2011
2009
2007
2005
2003
2001
70.0%
Current Adult Clients on Conditional
Release in Given County
(1/1/2012)
Benton
4
Klamath
6
Clackamas
19
Lane
Columbia
21
Lincoln
4
Linn
3
Coos
Deschutes
8
23
15
Malheur
13
Douglas
2
Marion
53
Hood River
1
Multnomah
Polk
140
Jackson
21
2
Jefferson
1
Umatilla
31
Josephine
8
Washington
19
Questions?
71
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