Published: Sunday, September 25, 2011

The insanity defense has been part of Anglo-American law for centuries. An English legal treatise from 1581 noted that if "a madman or a natural fool, or a lunatic in the time of his lunacy [commits a crime] this is no felonious act for they cannot be said to have any understanding will." While the diagnosis and treatment of mental illness has changed tremendously over the years, our sense of justice has consistently recognized that punishing a person for actions she cannot control is wrong.

When a defendant is found "guilty except for insanity" in Oregon, she is usually committed to the state hospital for custody, care and treatment for a period of time that is necessary to control the person's symptoms and return her safely to society. The maximum period allowed for this commitment is the longest a defendant could have been put in prison if she had been convicted. The vast majority of successful insanity defenses are agreed to by the district attorney handling the case.

The state hospital hires psychiatrists, psychologists, nurses and a variety of other professionals and skilled workers to restore the mental health of patients. The hospital has security staff to assure that treatment can be provided in a manner that is safe for patients, staff and the community. Patients are not in the state hospital to "do time." They are there to get well.

Recently, one patient ran away from a supervised walk on hospital grounds and jumped into a waiting car to make his getaway. He was captured 17 days later in Sandy, the same town where his 2009 auto wreck caused the tragic death of two people and resulted in his commitment for two counts of second-degree manslaughter.

Some have questioned whether patients at the state hospital should be allowed to walk outside the facility walls and whether they should be permitted to have uncensored communication with others. If the goal of the hospital is to return its patients to health, the answer is a resounding "yes!" This is, in fact, what the hospital is licensed and staffed to do and what it is asked to do by the criminal justice system.

Mental illness can be effectively treated and the majority of patients in the state hospital will recover and be reintegrated into society. Punishing them with long years of languishing behind high walls is bad for the patients, bad for the hospital environment and financially wasteful. It also violates patients' civil and legal rights to safe and effective treatment that is not unduly isolated from society, and it undermines hope for patients and staff alike.

We at DRO think the hospital has taken appropriate steps to review the individual security assessments of other patients to assure that they are up-to-date and accurate. The actions of one patient should not harm the treatment of others. A thorough investigation should be completed to determine if criminal prosecution is appropriate for those who planned and executed the escape.

Bob Joondeph is Executive Director of Disability Rights Oregon.

© 2011 OregonLive.com. All rights reserved.

When it comes to Oregon State Hospital, everyone's talking about culture change.  If you listen to government officials, state hospital management and personnel, advocates and the media, they all talk about this thing called "culture" and the need to change it.  And it's not just the hospital.  Last week, I was at a meeting of "stakeholders" discussing a state initiative to change how group homes are used.  Most everyone agreed that the "culture" of this service must change.  This is one of those very useful phrases that everyone can agree with as long as the details remain murky.

The two words "culture change" describe a process and destination.  The destination is "recovery."  The process is how the state hospital and group homes can change their thinking and actions to better promote recovery.

Changing habits of thought and action can be difficult.  A reformer might think that getting an new idea announced as a federal policy will lead to quick implementation.  Such a policy was announced for "recovery" in the report of The President's New Freedom Commission on Mental Health.  It's Vision Statement reads:

We envision a future when everyone with a mental illness will recover, a future when mental illnesses can be prevented or cured, a future when mental illnesses are detected early, and a future when everyone with a mental illness at any stage of life has access to effective treatment and supports — essentials for living, working, learning, and participating fully in the community.

This report was released in 2003.  It's ideas were not new to leaders in Oregon's mental health system.  But we are still trying to get some traction on the ground level where people with psychiatric disabilities are housed and treated.

In the worlds of physical and intellectual disability services where I also advocate, there are certainly lingering prejudices, paternalism and the imposition of external limitations on individual development.  People are still inappropriately stashed in nursing homes, sheltered workshops and self-contained classrooms.  But you don't hear too much about culture change.  More frequently, you hear concern that people from outside the services systems will not properly understand the existing culture. 

As Oregon's new Governor and legislature start to tackle our very severe budget crisis, there will be a lot of talk about what and how much to cut.  We must make sure that we always ask whether a program, a service or a facility will help to change the cultures that need to change and expand the cultures that need protecting.  Every dollar spent should promote recovery, choice, self-determination and maximum integration.

The U.S. Supreme Count case, L.C. vs. Olmstead, has been around for over ten years but its full meaning as yet to be realized.  The case basically says that the ADA gives people with disabilities the right not to be unnecessarily segregated.  Just as the government cannot tell all people of a race or religion that they have to live in one place, it can't require people with disabilities to all live together (say, in a nursing home or state training center) in order to receive services.

Just to clear it up right away, the "Olmstead Act" was passed by Congress in 1909 and addressed the authority of the U.S. President over the affairs of Puerto Rico.  Many people use "Olmstead Act" to refer to L.C. vs. Olmstead.  In fact, so many do it that a Google search using "Olmstead Act" results almost entirely in stuff about the ADA case.  This drives me to distraction.  But I digress....

In the last two years, the U.S. Department of Justice (USDOJ) has taken a much more active role in enforcing Olmstead.  One result is a recent Settlement Agreement between the U.S. and Georgia.  In the agreement, Georgia agreed to stop putting people with developmental disabilities in its state hospitals and, instead, create a system of community services to assist them.  It also agreed to build a more comprehensive community mental health system including new 'Assertive Community Treatment Teams," "Community Support Teams," "Intensive Case Management Teams," "Crisis Service Centers," housing, employment, peer services and more.

Fairly soon after completing the settlement in Georgia, USDOJ sent a letter to Oregon saying that it was starting an investigation of how our state is complying with Olmstead.  DRO has asserted for years that Oregon does not do a good job on Olmstead.  We have sued the state a number of times on behalf of state hospital patients who are not discharged for months and years even though the hospital says the patients are no longer needing hospital-level care.  We continue to monitor patients who are stuck in the hospital while a convoluted placement process in which there is no ultimate authority bumbles along.

Oregon has just - just -  started a effort to reform how it uses its community residential beds.  They call it "Aim High."  Oregon still does not have an "Olmstead Plan" which many states have to show how they are working to get people out of state hospitals.  DRO has had to use court action and the threat of court action in local communities that fight to keep people with mental disabilities from living in their neighborhoods.  The state has never asserted these rights for patients. 

Lastly, in the midst of severe budget cuts, Oregon plans to build a new, large state hospital in Junction City.  The cost of operating this "big box" in the middle of a field in the Willamette Valley has to come from somewhere.  Will it come from school budgets?  State police?  Corrections?  Or, maybe, the desperately strapped community mental health budget?  If community mental health is cut to staff Junction City, Oregon will be the anti-Olmstead state: it will create a structure of unnecessary segregation of individuals with mental disabilities.

In sum, Oregon has been and remains content to leave people in expensive, unnecessary state hospital beds.  It is planning for an even greater emphasis on segregated care.  This is why USDOJ is back for more investigation.

On Tuesday, the Oregon House Human Services Committee held a four hour hearing about Oregon State Hospital.  Witnesses included administrators, workers, a resident, a former resident, a family member, the state's lawyer and a panel of advocates including Beckie Child from Mental Health America of Oregon, Chris Bouneff from NAMI and me.  Our panel recommended three things that the state should do:

1. Agree to a court-enforceable agreement to fix OSH.
2. Stop all efforts to build a new state hospital in Junction City.
3. Reform how people go into the hospital and get out, particularly from the criminal courts.

We pointed out that we cannot afford the money to run a new hospital (about $220 million per year) and have not been able to fix OSH on our own.  We said that Oregon must learn how to use precious state hospital beds more effectively and stop asking administrators and staff to be both a hospital and a prison (two incompatible tasks).

I testified that I wanted to be hopeful that Oregon could fix OSH without outside oversight, but experience told us otherwise.  I noted that DRO has sued OSH five times since 1992 in order to force improvements, but the problems don't go away. 

Committee Chair Carolyn Tomei asked me to send her a written summary of those cases.  I did, and now I'm sharing it with you.

Charles B. vs. Concannon:  A Class Action filed in 1992 on behalf of forensic patients and patients with developmental disabilities.  A Settlement Agreement was reached in 1994 which required that all patients have an individual treatment plan, a baseline assessment, a comprehensive assessment, appropriate referrals, education programs, psychosocial rehabilitation, sex offender treatment, and vocational services.  Staff were to receive 80 hours of core curriculum training.  Professional staffing levels were to be adequate, movement restriction and seclusion & restraint policies were to be changed, and patients with cognitive disabilities were to be assessed and placed in appropriate alternative settings.

Miranda B. vs. Kulongoski:  A Class Action filed in 2000 on behalf of civilly committed patients in Oregon’s state hospitals.  A Settlement Agreement was reached in 2004 which required DHS to develop 75 new licensed placements and/or supported housing, discharge at least 31 class members, begin discharge planning upon hospital admission, refer any patient who was not placed within 90 of being ready-to-place to an Extended Care Management Unit for assistance in placing, develop a fund to assist with exceptional barriers to placement which would start with $1,500,000, and develop a process to monitor vacancies in community facilities.

Bartow and Oregon Advocacy Center vs. DHS:  A Wrongful Death action filed in 2002 on behalf of a patient who died during a take-down and an unsafe conditions claim on behalf of all OSH patients.  The case was settled in 2004 for $200,000 in damages plus an agreement to place defibrillators on wards and update restraint training to include information on positional asphyxia and de-escalation techniques.

Oregon Advocacy Center vs. Mink:  A Class Action filed in 2002 on behalf of defendants who had been found unable to aid and assist in defense of criminal charges who languished in local jails awaiting transfer to OSH.  Following trial and appeal, OSH was ordered to admit defendants from jail who are found unable to aid and assist in their defense within seven days of such finding.

Harmon vs. Fickle:  2004 Class Action on behalf of forensic patients at OSH. A Settlement Agreement was reached in 2006 that required OSH to hire 30 new professional staff, DHS to hire 4 new community placement developers, OSH to increase the staff to patient ratio from under 1.10 to 1.82, and DHS to create 71 new community placements (at least 30 being intensive case management slots) in addition to 128 planned placements for forensic patients.

David Denichenko is the resident at Oregon State Hospital who recently filed a lawsuit against the hospital for failing to supervise a female employee who had sex with his roommate.  He asked OSH to pay him damages for failing to prevent these liaisons and failing to provide him with counseling after they were discovered.  Mr. Denichenko brought his action in small claims court.  He did not have a lawyer.

On October 23, the Salem Statesman-Journal reported that the case was "tossed on technicality."  A state assistant attorney general had asked the court to dismiss the case because it was not filed within the 180 day time limit set by state law.  The judge agreed.  As reported in the Statesman-Journal: "The time clock began running Dec. 24, when Butler [the employee] was placed on leave, and expired June 22.  Denichenko filed his claim weeks after the deadline."

Why is a person who is held in a state mental hospital required to adhere to such a technicality in order to seek justice? It all begins a few centuries ago in England.  Back when the King or Queen was (at least in theory) all-powerful, a citizen was not allowed to seek legal redress against the sovereign without his or her permission.  Despite the fact that American colonists fought to free themselves of royalty, our jurists chose to adopt this concept of "sovereign immunity" and to interpret the U.S. Constitution as embracing the concept.  And so, even though our Supreme Court has announced from time to time that no person is above the law (see its ruling in the Bill Clinton case), governments are permitted to be.

Oregon, like other states, has set ground rules for when and how it, and local governments, can be sued.  One of those rules is that a person who wants to sue state or local government must notify the government of the claim within 180 days of their loss or injury.  This can be done by sending the government a "tort claim notice" in writing that sets out the details of circumstances underlying the claim.  The time period is extended to one year if it involves a wrongful death.  The time limits can be extended in special circumstances such as when the person is a minor or incapacitated or when the government has actual knowledge of the claim.

Both government and regular citizens have the protection of a "statute of limitations" that requires claimants to take care of business in a reasonable period of time.  Governments, however, require additional and earlier notice of a claim.  Is that requirement fair when applied to a person in a state mental hospital?  Could the hospital be unaware that a resident, who is under constant care and supervision of a professional treatment team, believes that he has been emotionally harmed by its staff? 

However you may answer those questions, it's clear that the sovereign has won this round.  According to the Statesman article, Mr. Denichenko acknowledged the cleverness of his adversary, the government:  "The biggest lesson I learned is, they're very good at this stuff."

What is the value of getting a bunch of people into a room?  As technology and fuel cost expand, there has been increased emphasis on saving travel costs through increased use of conference calls, web casts, and video conferencing.  I’ve found myself at a number of gatherings in the past week (in fact, I’m in a meeting as I write this) and each has been valuable.  How come?

Last Tuesday, DRO Board President Michael Bailey and I hopped into my car, picked up Ollie Cantos (national disability advocate) and Elizabeth Arledge (DRO Communications/Development Director) and drove to Oregon State Hospital (OSH) for an evening meeting.  DRO has an advisory council for our program that serves folks with mental illness (PAIMI).  It meets every two months.  Once each year, it convenes at OSH and conducts a forum in which residents line up to use a microphone to share what’s on their minds.  We were in my car were driving down to listen up.

The elected chair of our PAIMI Advisory Council (PAC) is a resident of the OSH Forensics Program. One PAC member is a former resident.  A majority of PAC members are individuals with mental illness.  In the past year, the PAC has also conducted meetings at the Portland campus of OSH and at Blue Mountain Recovery Center in Pendleton.  We at DRO (and OSH residents, I noticed) understand that this is a group that knows what it’s talking about.

You might think that sitting in the shabby OSH gym for two hours listening to people’s problems would be a bummer.  I found it energizing.  We heard about people’s anxiety about changes in how the hospital is run and about the new hospital that’s being built.  We heard frustration about the criminal justice system and the Psychiatric Security Review Board.  Many people felt that they didn’t understand what they were getting into when they chose the insanity defense. Some praised staff, others were critical.  Some OSH policies were questioned.  In sum, it was an informative, constructive discussion.

The next night, I attended the fall social event of the Multnomah Bar Association.  It was a reception in a large room at the University Club in Portland.  The venue was packed with lawyers in suits, chatting and drinking and munching hors d'ouevres.  It provided me with a chance to talk with some folks about what DRO is doing, the importance of health care reform for people with disabilities, and just let some people know that we exist.  I was putting a face to our mission: disability rights.

I couldn’t help but compare my consecutive nights in large rooms with voluntarily medicated participants.  The contrast between the social advantages of the groups could have hardly been more extreme.  But both events were about communication and community.  Everyone who participated had a chance to learn about each other, discover alliances, identify opportunities and share challenges.  In each case, I couldn't imagine an electronic alternative being as effective as face time.

I sit again in the audience at the House Human Services Committee where the superintendent of Oregon State Hospital, Roy Orr, is discussing the state of the facility.

Roy notes that in Nov. 2006 the U.S. Department of Justice informed the state that it believed OSH was violating the civil rights of patients.  DOJ then brought a survey team to OSH and produced a report that was delivered to the Governor in January 2008.  The report criticized the hospital's old physical plant, poor quality of care, vacancies of key positions, extraordinary and chronic reliance on overtime, and heavy reliance on contract staff.  In response, OSH created a 250 page correction plan.  Roy says this plan is the hospital's "roadmap toward a different future."

Roy thinks OSH has made significant improvements since that time.  He notes that there have been ongoing settlement discussions with DOJ.  Drs. Geller and McLoughlin were hired by the state as consultants to help with changes.  The state does not want to lose control of the hospital to a judge, as occurred in Hawaii.  DOJ will be back here in late July to resurvey OSH.  Roy says he welcomes the visit.  He thinks they will find a very different hospital.

Roy says that as improvements move forward, they are guided by three major themes: need to improve quality of care, need to improve hiring, and building the new hospital.  He then moves through a variety of specific improvements including a 75% reduction in use of restraint and a 80% reduction in use of seclusion.  He says OSH is now "at or below" the national average for use of seclusion and restraint.  Also, he is proud to note that OSH received full accreditation from The Joint Commission in April, 2009.

 The committee clearly welcomes all this good news.  But I know that there have been a series of lock-downs at OSH during the past four weeks due to overcrowed conditions.  DRO has complained that these lock-downs are being used as group punishment to create peer pressure on those patients who have gotten out of line.  We think the staff on the ward are scared about losing control when they have too many patients to care for.  We surmise that patients have not been moved to other wards because the other wards are allowed to reject transfers.

To their credit, hospital administrators have been responsive to our concerns and are taking steps to review their entire lock-down and ward transfer procedures.  But, as I listen to Roy's encouraging testimony, I know that we are not yet out of the woods.

In this Friday’s Oregon AFSCME e-lert, union spokespeople claimed that DRO was disrespectful to Oregon State Hospital workers.  Our offense was arguing that the voting members of a proposed oversight committee for the hospital should not include those with a direct financial interest in hospital operations. 

 The publication went on to state:  “No decisions have been made, but one possible compromise would be for any committee member who has any sort of financial tie to OSH to be an ad hoc, non-voting member. That would include employees, but would also include Joondeph and his ilk, who make money from OSH client families.”

 Hmm.  DRO does, from time to time, get crosswise with public employee unions who sometimes view our advocacy for patients to be anti-worker.  We rarely get credit for advocating for improved conditions in the hospital that make life better for patients and staff alike. 

 Consider this: despite deep cuts in the state budget, construction of a new hospital is still on track.  The budget for the existing hospital has not only been held exempt from cuts, but OSH continues to hire hundreds of new staff.  Is the advocacy that brought this about disrespectful to staff?  I don’t think so.

 The state hospital is not a place to work if you want fame or fortune.  But it is a place where people with good hearts and unique skills can bring healing and recovery to Oregonians whose lives have been devastated by mental illness.  These professionals deserve the tools and resources to do the job right.  That includes an oversight board that can keep the condition of the hospital in the public eye and not be dismissed as a tool for one interest or another.