Will concerns about public safety help reform the Psychiatric Security Review Board?

From Street Roots, June 15, 2011

As minimum security patients at the Oregon State Hospital, Matthew Kirby, 22, and a 40-year old man identified as “Emmanuel Goldstein” for this article are allowed to do quite a bit.

They can leave the hospital’s grounds under the supervision of one hospital staff person, and could, for instance, eat at any of Salem’s restaurants. Other higher security patients leave their wards in shackles, if they leave at all.

psrb-8Kirby and Goldstein can wear their own clothes, have their own cell phone, laptop, and other possessions with them. They can access the kitchen in the middle of a night for a snack.

One might say their lives are bearable. But Kirby and Goldstein say they are still institutionalized.

“There is only so much Jello you can eat,” Goldstein says. “There is only so much Uno you can play.”

Only so much before they are reminded that they are not free to go wherever they want, whenever they want, spontaneously join a group of friends at the local bar; that the Oregon State Hospital’s guards will shine a flashlight in their eyes every hour at night; that they are still under 24-hour, seven days a week supervision; that they may have to remain at the hospital, under the jurisdiction of the Psychiatric Security Review Board, for years to come.

The Psychiatric Security Review Board, also known as the “PSRB,” is the state agency with jurisdiction over mentally ill persons who commit a crime and are found by a court to be “guilty except for insanity,” meaning that the crime would not have occurred if the person wasn’t mentally ill.

With the mission to protect public safety, the PSRB has the power to decide when a patient is ready to be released from the Hospital, either to live independently or in a treatment program at the community level.

As of May 1, 736 individuals are under the PSRB’s jurisdiction. Of those, 324 of those reside in the Oregon State Hospital. The rest have been “conditionally released” back to the community in various residential settings – supported housing, intensive case management settings, etc.

Once conditionally released, patients are still under the board’s jurisdiction, and the board can send them back to the hospital if necessary.

“They are the gate keepers,” says Harris Matarazzo, who has defended patients in PSRB hearings for 25 years.

By all accounts, the PSRB is successful at its mission. The board’s recidivism rate — or the rate of people who reoffend once back in the community — is extremely low, at 2.3 percent.

Mental health advocates and patients like Kirby and Goldstein say the recidivism rate is more indicative of a conservative board that achieves its mission at a steep human cost: rarely choosing to release a patient, the board keeps patients at the Oregon State Hospital far past the point that they’ve received the necessary treatment to live independently.

“There are patients who are considered to be clinically ready for discharge…but they’re unable to leave,” says Bob Joondeph, the executive director of Disability Rights Oregon. “They can spend months and years in there, frankly.”

“They often don’t let someone out,” says Chris Bouneff, the executive director of Oregon’s chapter of the National Alliance of Mental Illness.

Bouneff says the reason is simple: fear.

“They are afraid of what happens if someone commits another offense,” he says. “Unless the risk is zero, they hesitate to release someone.”

“The way we have things structured right now is heavily weighted in terms of public safety,” Joondeph says.

The Oregon State Hospital has, in the last five years, been under the critical and scrutinizing eye of the United States Department of Justice and Oregon’s legislature. There have been changes. The hospital’s new superintendent is actively working to create treatment programs that are evidence-based and patient-centered.

The mindset of reform has trickled down to the PSRB. Three bills are working their way through the Legislature, set to adjourn in three weeks.

Two bills — Senate Bill 420 and House Bill 2701 — would substantively change the PSRB and how the Hospital’s forensic patients are treated, by taking jurisdiction away from the PSRB, creating assessment and treatment deadlines, and mandate that a patient, once deemed ready for release, be released within 60 days.

With the clock ticking, none of the bills are scheduled for votes on the House or Senate floors. Two have been referred to the Joint Ways and Means’ Subcommittee on Capital Construction, a seemingly innocuous budget subcommittee made up of legislative leadership. But the odd referral indicates to lobbyists and insiders that negotiations will continue behind the scenes, and the bills may appear for floor votes during the final days of the session.

They have come under the criticism of district attorneys, proponents of public safety, and the PSRB itself. All argue that public safety would be jeopardized by the bills because a dangerous class of criminals could be more easily released into the public.

But Bouneff, Joondeph and others argue that public safety is not at question. Rather, the question becomes whether there are lucid people with treated mental illnesses at the Oregon State Hospital, waiting for release and costing taxpayers $200,000 a year, who are ready to restart their lives.

“The idea behind both of these pieces of legislation is to create more movement where appropriate, so people don’t languish,” Bouneff says.

Beginning one year ago, a range of stakeholders including legislators, advocates, community mental health workers, and the PSRB, began meeting to discuss changing the PSRB.

Out of those meetings came House Bill 3100. It would require that a state-certified psychologist or psychiatrist evaluate someone before they make a “guilty except for insanity” plea.

“Currently,” Matarazzo says, “the PSRB decides the evaluator. That is a real flaw.”

The idea is that the evaluator could potentially prevent some people from making the plea, which is already challenging to do—a person must prove that they are mentally ill, and committed the crime under the influence of that mental illness.

Those people would then likely be referred to community treatment programs, rather than the hospital.

House Bill 3100 also includes a provision that people committing misdemeanor-level crimes and Class C felonies be sent to the hospital only if they need the hospital’s high level of care.

“This bill would advance the efforts to place individuals with criminal issues and mental health issues in the most appropriate place for treatment,” says Richard Harris, director of the state’s Addictions and Mental Health Division.

But Matarazzo doubts the bill is necessary. “Judges need to challenge and make sure the evaluations are good ones,” he says, adding that the evaluators, who would be hired by the court, would always be “hired guns.”

Advocates say HB 3100, as Bouneff puts it, “does so very little.”

Buckley estimates approximately 15 to 20 people at the hospital — out of almost 700 —have committed misdemeanors and Class C felonies.

Bouneff and Joondeph introduced amendments to the bill to deal with the hospital’s “back door,” or how patients, once at the hospital, are eventually released. They were rejected, and SB 420 and HB 2701 were crafted.

SB 420 would take away the PSRB’s jurisdiction of hospital’s patients and give it to the Oregon Health Authority. The PSRB would continue to have jurisdiction over conditionally released patients.

Originally applying to all patients, a compromise was reached to exclude patients who committed Measure 11 crimes — violent person crimes. They would continue to be under the board’s jurisdiction, should the bill pass.

The hospital’s doctors and clinicians, not the PSRB, would determine when hearings are held, and when patients are released. “The hospital (would have) some control over who comes in and leaves. Right now, they have no control,” Bouneff says.

The argument is that the doctors and clinicians working with the hospital’s patients are the people best to decide whether an individual’s mental illness is managed and they are capable of living independently.

“It isn’t the board’s expertise to know when a person needs hospital level care,” Joondeph says. “What PSRB’s expertise is in is supervising people in community settings.”

“It’s Senate Bill 420 that would benefit patients the most,” Goldstein believes.

A third measure, House Bill 2701, would require the hospital superintendent to notify the PSRB when a patient is ready for release. Once the PSRB receives that notice, they have 60 days to hold a hearing and conditionally release the patient.

The bill also requires the Oregon Health Authority to prepare treatment plans and clinical assessments, and appropriate timelines for providing treatment and assessment.

Patients, once at the hospital, already are given three assessments, for health, drug and alcohol and risk. But when they are given, patients and advocates say, is not standardized, which directly affects a patient’s treatment plan.

Goldstein says he was given the risk assessment within two weeks of coming to the Hospital. But getting the other two took a year and a half. “I didn’t even know about them for the first year,” he says.

Kirby and Goldstein have become forceful patient advocates in favor of the two bills. They have met with multiple state legislators, testified in front of policy committees, and collected over 100 signatures of patients in a letter sent to Governor John Kitzhaber.

“I’ve never seen a patient at the state hospital more empowered to speak on their own behalf than at this session,” Bouneff says.

“I really, really hope that we will have systemic change,” Kirby says. “Most people get completely defeated (here).”

But HB 2701 has sat in the House Rules Committee since late April. Opponents say additional staff are required to ensure assessments are given within the specified time frame. Called “unimplementable,” it will likely die this session.

SB 420 has some traction. It received a public hearing on May 31 in the Joint Ways and Means Subcommittee on Public Safety but came under multiple objections from the Oregon District Attorneys Association and the Oregon Psychiatric Association.

Dr. Joseph Bloom, a psychiatrist at Oregon Health & Science University, criticized the SB 420 because it doesn’t specify the hearing procedure that the Oregon Health Authority would follow before releasing a patient. “It should not leave everything up to administrative rule [making],” he said.

Mazaratto, who believes the PSRB needs to change to allow patients to be released more often, surprisingly agrees. He calls the legislation “a big gamble” because it doesn’t fully address what giving jurisdiction to the Health Authority would look like. “Will people be entitled to counsel?” he asks. “Who will be there on the board? Would it be just the superintendent? Who would pick these people?”

Letting the hospital decide who’s released may actually backfire. “This hospital has had some very conservative superintendents who were very fearful of any kind of liability and really went out of their way to discourage releases,” Mazaratto said.

There’s also a potential conflict of interest. The Oregon Health Authority is responsible for the Hospital’s budget, meaning that hearings may become budget-driven.

“The protection of the public will not be the primary concern,” Buckley said. “(And) it’s not an independent review.”

Hovering like a specter over the hearing was the fear that public safety will be compromised, that the hospital’s patients are dangerous criminals that, once released, could destabilize and once again offend.

“These are our most dangerous people,” said Elizabeth Cushwa, the executive director of the district attorney’s association, at the hearing. Despite the compromise concerning Measure 11 offenders, her organization and other public safety organizations continue opposing the bill.

“Why do you want to change something that has been successful for 33 years and has a two percent recidivism rate?” Sen. Joanne Verger asked Joondeph during the hearing.

“We think (the board) has been overly restrictive, and this has been a detriment in terms of the amount of time people have to spend in the hospital,” he responded.

[PSRB Executive Director Mary Claire] Buckley strongly disagrees that the PSRB intentionally keeps patients in the State Hospital longer than needed. “People should only be in the hospital for as long as necessary,” she says. “We don’t deny that there are people right now who could be out.”

What a patient’s release depends on, she says, is whether resources are available at the community level. She points to five years between 2003 and 2008 when the Additions and Mental Health Division funded and created more resources at the community level. The PSRB released an additional 104 people to the community, a 40 percent increase.

“That was a significant upsurge correlated directly with the increase in community resources,” she said.

Matarazzo and others are skeptical that the existence of community beds solely drives the PSRB’s decisions. Matarazzo says that many beds designated for PSRB patients are used for other mentally ill populations, because the PSRB does not use them.

“They were lost to a bigger system,” he says, calling it “one of the greatest tragedies” concerning how the PSRB works.

Kirby came to the Hospital two years ago suffering from severe depression and a drug addiction. While under the throes of his mental illness, he committed a Class A Felony, Burglary I.

He says he regained control over his depression the first six to eight weeks he was at the hospital. He is also recovering from his addiction. “I am completely grateful for my stay here,” he says.

But he may end up staying at the hospital for another 18 years — the maximum prison sentence for his crime, sentencing guidelines the PSRB also follows, unless a patient is released earlier.

“One would think that because this is a hospital, you receive treatment, then you are discharged. It’s just not that way,” Goldstein says. “You’re in such a hopeless situation with such an insanely long sentence.”

Kirby and Goldstein, as well as the advocates lobbying in the Legislature’s halls on their behalf, are convinced that if legislation is not passed to change the PSRB, patients will continue to languish and receive unnecessary and costly care, their lives at a permanent standstill. And the effects of institutionalization will be long-lasting, well past when they are released.

“They are kept out of their community,” Joondeph says. “This leads to hopelessness, and a level of despair that these folks are doing everything they’re supposed to do, and it never leads anywhere.”