Psychiatric Security Review Board Reform Bills Set to Become Law

By Amanda Waldroupe of The Lund Report, June 29, 2011

Although both House Bill 3100 and Senate Bill 420 passed the Legislature handily, doubts still remain

Two bills that will reform the Psychiatric Security Review Board (PSRB) have passed the House and Senate. Expected to soon become law, they represent the most substantive changes to Oregon’s mental health system in many years.

“[Senate Bill 420] is long overdue,” said Sen. Jackie Winters (R-Salem), before the Senate approved the bill by a 20-9 margin.

House Bill 3100 and Senate Bill 420 change the PSRB’s authority in terms of the board’s involvement when a court decides if a criminal is “guilty except for insanity,” and when certain patients are released from the Oregon State Hospital.

Hospital patients who lobbied for the bills, particularly Senate Bill 420, are jubilant.

“We’re proud of our legislators that worked to pass Senate Bill 420,” they wrote in a press statement released Tuesday. “This bill is the beginning of a long overdue modernization of the PSRB and Oregon’s mental health system. This bill will improve our treatment, fight stigma, and help us to live full lives.”

PSRB’s Jurisdiction Will Include Fewer Patients

Senate Bill 420 changes the jurisdictional authority of the five-member PSRB board that decides when a patient 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, is ready to be released from the hospital, either to live independently or in a community treatment program.

Originally, the bill would have given jurisdiction of all patients to the health authority. But a compromise was struck to gain the support of the Oregon District Attorney Association, as well as law enforcement officials, who argued that dangerous people would be released from the hospital.

The compromise creates “Tier I” and “Tier II” populations. “Tier I” refers to patients who committed Measure 11 offenses (violent person-on-person crimes such as murder, rape, etc.); Tier II to non-Measure 11 offenses. The PSRB will continue having jurisdiction over the Tier I population, estimated to be approximately 60 percent of the hospital’s patients.

As of May 1, there were 736 individuals under the PSRB’s jurisdiction. Of those, 324 reside in the hospital, and the rest have been “conditionally released” into community treatment settings.

Advocates such as Chris Bouneff, the executive director of Oregon’s chapter of the National Alliance of Mental Illness (NAMI), strongly lobbied for the bill’s passage, arguing that doctors and clinicians who interact with patients on a daily basis are the best people to determine when someone is ready for release.

“The hospital [would have] some control over who comes in and leaves,” Bouneff said. “Right now, they have no control.”

The biggest hope for the bill is that it will help end what some perceive to be long hospitalizations of patients who no longer need intensive care, treatment and 24-hour supervision.

“In some instances, we’re doing a job of warehousing individuals,” Winters said. “[Senate Bill 420] will help us…use our beds more wisely.”

PSRB is blamed for those long hospitalizations because of its hesitancy to release people they think may commit another crime. Its recidivism rate—the number of people who commit a crime once released—is 2.3 percent, compared to the Department of Corrections rate, which is in the 30th percentile.

In an earlier story by The Lund Report, Bob Joondeph, the executive director of Disability Rights Oregon, said the human toll of keeping people in the hospital is too great not to take action.

“It leads to hopelessness, and a level of despair that those folks are doing everything they’re supposed to do, and it never leads anywhere,” he said.

Lawmakers Question Constitutionality of PSRB Legislation

Questions about the constitutionality of House Bill 3100 were raised for the first time.

Monday, before it passed the House. Even though the bill easily passed with a 45-14 margin, it was the subject of a lengthy floor debate.

Rep. Matt Wand (R-Troutdale) was uncomfortable with the court being required to use, as expert witnesses, psychologists or psychiatrists certified by a state agency.

Currently, the five-member PSRB decides who comes into the state hospital and chooses the evaluator who determines when they can be released. Mental health advocates question the consistency and objectivity of such evaluations, as well as the transparency of the current process.

With the bill’s passage, there should be more consistency about how people are found “guilty except for insanity,” meaning that a person wouldn’t have committed the crime had they not suffered from a mental illness.

If there’s concern that judges aren’t properly evaluating the rules of what defines an expert witness, Wand said, “then we out to write out the rules in the evidence code,” and also write out “what qualifies an expert, then let the judge make those determinations.”

“I believe this bill is unconstitutional,” he said, adding that the bill may result in a “lengthy legal challenge.”

Rep. Phil Barnhart (D-Central Lane and Linn Counties) also objected to that section, saying he worked for 15 years as a forensic examiner where part of his practice included making similar evaluations.

“The rules of evidence are very clear about who [an attorney] can use as an expert witness,” Barnhart said.

House Bill 3100, he said, doesn’t include particular provisions about the credentials a certified psychologist or psychiatrist must have to be an expert witness.

“It becomes a significant problem, I think, in terms of who’d be allowed to be used as an expert witness,” Barnhart said. “It certainly infringes on the prerogative of the court.”

Rep. Brian Clem (D-Salem), one of the bill’s sponsors, disagreed. “It clarifies that the product of a plea agreement needs to be vetted with someone with specific” training in forensic mental illness, Oregon’s mental health system, and the difference between chemical dependency and mental illness.

Rep. Carolyn Tomei (D-Milwaukie), who carried the bill on the House floor, said the Legislature’s legal counsel had said “there was no question brought up about the constitutionality.”

The bill deals with what people colloquially refer to as the “front door,” or admissions procedures, of the state hospital.

Besides requiring that a state-certified psychologist or psychiatrist evaluate someone before they make a “guilty except for insanity” plea, the bill includes a provision that people committing misdemeanor-level crimes and Class C felonies be sent to the hospital only if they need intensive services.

Advocates hope those provisions will decrease the number of people admitted to the hospital.

“There are quite a few people who shouldn’t be there,” said Clem during his floor speech. “They are well now, and it’s time for them to go home.”

He pointed to the PSRB as the reason why some patients aren’t released in a timely fashion. “They’re too afraid that somebody’s going to do something once they get out,” he said.

The Legislative Fiscal Office estimates this bill will save $300,000 over the next two years. It cost approximately $200,000 to keep someone at the state hospital for a year.

Patients Call For Future Reforms

The bills’ reform-minded content is part of a larger confluence of events bringing change to the state hospital’s culture and the way it provides care, including the growing realization that the costs of hospital-level care are unsustainable. Its new superintendent, Greg Roberts, has also been emphasizing patient-centered care.

Hospital patients say more to be done. They asked that the sentences they receive be shorter and more reflective of how long they need to be in the hospital, as well increasing the number of community treatment facilities.

Their third request was the boldest: that the PSRB be completely abolished, arguing that it’s outdated and not aligned with a recovery-centered model of treatment.

“Its days are numbered,” they said.