HB 3100 Affecting the “front door” of OSH - PowerPoint Presentation

Slide1

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

Slide2

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

Slide3

The Insanity Defenseand

PSRB/OHA Jurisdiction

Slide4

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

Slide5

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

Slide6

(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

Slide7

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

Slide8

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

Slide9

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

Slide10

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.

Slide11

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

Slide12

ORS 161.325

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

Slide13

Slide14

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

Slide15

Slide16

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

Slide17

(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

Slide18

(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

Slide19

(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.

Slide20

(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”

Slide21

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.

Slide22

Sample Court Conditional

Release Order

Slide23

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.

Slide24

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

Slide25

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.

Slide26

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

.

S

tate 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.

Slide27

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

Slide28

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.

Slide29

The Board carries out its mission through 2 arenas:

- Hearings

- Monitoring

.

Slide30

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

Slide31

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.

Slide32

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?

Slide33

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

Slide34

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

Slide35

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

Slide36

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

Slide37

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

Slide38

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

Slide39

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

Slide40

Monitoring:

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

Daily calls and correspondence from case managers, providers and others

Monthly progress reports*

Slide41

Slide42

Slide43

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

Slide44

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

Slide45

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.

Slide46

Slide47

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

Slide48

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.

Slide49

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

Slide50

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.

Slide51

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.

Slide52

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

Slide53

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

Slide54

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

Slide55

* 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

Slide56

Clients under SHRP

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

Slide57

Adult Clients Snapshot as of January 1, 2012:

615 – Total clients

605 – 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/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

in various types of residential settings:

Slide58

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

5 – out of state or country

258 – in Oregon in 20 different counties

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

in various types of residential settings:

Slide59

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

5 – out of state or country

149 – in Oregon in 19 different counties

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

in various types of residential settings:

154 Terms (153 Clients)

– on Conditional Release

Slide60

2011 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)

Slide61

Adult Clients at OSH

(approximate as of 12/31 of given year)

2011 300

2010 350

2009 367

2008 362

2007 351

2006 343

2005 375

2004 403

2003 368

2002 322

2001 327

Slide62

* Numbers 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

Slide63

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

Slide64

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%

Slide65

Court Conditional Releases

2011 22%

2010 14%

2009 16%

2008 13%

2007 15%

2006 15%

2005 26%

2004 25%

2003 22%

2002 32%

2001 30%

Slide66

Adult Clients Revoked from Conditional Release

(by Year)

2011

2010

2009

2008

2007

2006

2005

2004

2003

2002

2001

27

30

33

41

59

54

68

72

56

47

39

Slide67

Definition of Recidivism

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

Slide68

Recidivism Rate

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

* Numbers as of 12/31 of given year

 

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%

Slide69

Percentage of Adult Conditional Releases Maintained

in Community per Month

Slide70

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

Slide71

Questions?

71

Slide72

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

Slide73

OSH Legal Affairs Department Contact Information

Micky Logan, J.D.

Oregon State Hospital

2800 Center St NE

Salem, OR 97301

Phone 503-947-2937