The Mercury’s Guide To Civil Commitment
“I once sat transfixed listening to a bipolar patient deliver this remarkable narrative about how he had become God,” says Alex Bassos—chief attorney for special courts with Metropolitan Public Defenders. “Honestly, it was as good as anything a novelist could come up with. He talked about all these tunnels that he’d gone down and people who’d spoken to him. It was incredible, although of course, it didn’t help his chances at the commitment hearing.”
We’re talking about delusions. Specifically, the kind of delusions that might accompany behavior making you a danger to yourself or others, and that might land you up, if you’re lucky enough, or unlucky enough depending on how you look at it, here:
CIVIL COMMITMENT COURT: Can deprive mentally ill people of their liberty…
I’ve followed two of Bassos’ colleagues around over the last month—community court defender Chris O’Connor, and criminal court supervising defender Liz Wakefield. Both experiences were real eye-openers, but in terms of my eyes, and how open or closed they were and are now, yesterday’s morning with Bassos was a real doozy. Thanks to him for showing me around.
“I see two monks sitting with their palms together,” says Bassos. We’re looking at one of the Rorschach blots that are framed on the wall of his downtown office. “My legal assistant sees the gaps in between—she says it looks like a skull.”
BASSOS: Good taste in wall art and neckties…
Bassos, 38, has been doing this work in Portland for five years. He was a criminal defender in Michigan before he decided he hated the place, and moved to Portland to take the bar. The son of two therapists who is now married to one, there’s no denying Bassos’ interest in the inner workings of the human mind.
If people’s minds are like iPods, one senses you would have to upload a hell of a lot of material onto Bassos’s before it overloaded. He likes to think “big picture,” he admits, which apart from defending each and every client on a very specific basis, is what he enjoys so much about the work he’s now doing.
We begin by going through a presentation he’d designed for doctors about the civil commitment process—Bassos is also currently writing a book on the subject, too—then, to continue the iTunes-related metaphor, we set the conversation to “party shuffle.” Perhaps “grim, Samuel Beckettian shuffle,” might be a more appropriate for discussing Oregon’s mental health system, but Bassos hardly seems beaten down by his job, so it’s hard to feel downhearted.
After coming to Portland, Bassos moved, with his wife, to the Thai city of Chiang Mai for a year—they wanted to “have an adventure.” Bassos learned to read and write Thai, which he taught to expatriates, and the pair of them took a series of self-improvement courses together, including a 10-day class in meditation, (“it was all internal, they wouldn’t even let you nod to each other, or speak, or write, or anything…it was the hardest thing I’ve ever done,” he says) and a three day Reiki retreat—for which the Grade One Reiki Practitioner’s certificate is his wall’s reward.
“That was more of a joke,” he explains. “You’re supposed to channel the universal energy of the universe to heal the person. But the initiation ceremony was like a fraternity hazing, they had us all wear blindfolds and blew on our backs. That was the final nail in the coffin for me. Still, who knows, maybe my channel is now open!”
After the Rorschach blots, Bassos teaches me a few Thai characters using some of the labeled blocks he made in Chiang Mai for the expatriates, which now sit on his bookshelf—then we head out to the courthouse, room 220.
In Commitment Court
“I love you, Dad,” says the allegedly mentally ill person. “There’s no hard feelings, it’s court.”
This is the second of four commitment hearings this morning, of which I’ll see two–they tend to last around two hours. The man talking is about 35, white, dressed in a thick navy coat with a high collar. His hair is closely cropped, and he reminds me of Bruce Willis in Die Hard. Bassos and I are watching proceedings from the back row of the audience, in a courtroom that looks like this:
COMMITMENT COURT: Set up to feel less adversarial than criminal court…
The man’s father has just finished testifying about his son’s alleged mental illness as a witness and gone back to the audience. Next, the District Attorney calls the man’s brother, who steps up to the witness stand.
“Oh boy,” says the man. “Who do I get to call?”
His defense attorney, Rachel Phillips, who works for Bassos, tries to calm him down. It won’t help his case if he’s speaking out of turn, even if it is to tell his father he loves him, or simply to express bewilderment. In ten minutes since we entered, he’s asked for more water to drink, several times.
The courtroom feels both familiar and alien, simultaneously. Like most others in the building, it is bathed in institutional fluorescent light, has some dogged gray carpet, and solid wood doors. The judge wears a robe, there’s a court clerk, and two sheriff’s deputies, dressed in green, to ensure order. Yet this court is unlike any other: It makes judgments about a person’s mental wellbeing, not their guilt of any crime.
That’s not to say the cops aren’t usually involved. This man was brought to Emanuel Hospital by police five days ago, when the civil commitment clock started ticking—the state has five days to commit a person, or let them go free. It’s not clear what prompted the officers to engage the man to begin with.
When the man arrived in hospital he was agitated, disorientated and delusional, and told a doctor he thought the ER machines were weapons. He’s been sleeping on the streets for several weeks now, and has lost a considerable amount of weight since his last arrest at the end of last year, judging from his appearance compared to a booking photo I can see being waved around by his parole officer, who should probably be a little more discrete with it.
Because of his behavior, the doctor placed an initial “hold” on the man, committing him to Emanuel’s psych ward. Emanuel is one of six hospitals in Portland with a certified psychiatric ward: OHSU, Emanuel, Adventist, Providence, Good Samaritan and the Veteran’s Association Hospital.
Such wards are locked, they have rooms with nurses, medication and so on. But they very often fill up. That means doctors have no option but to hold psych patients in the ER, where they sometimes have to remain for the entire five days, ideally with proper supervision, until a bed opens up on the psych ward.
“Emanuel was telling me three months ago that they were on a complete divert because their ER was completely filled with people on psychiatric holds,” says Bassos. “That means they couldn’t even take patients having heart attacks.”
It costs the state roughly $1000 a day to keep someone in a psych bed, and more to keep them in an ER bed. Most patients, once stabilized, only need 3 hot meals a day, a bed, and medication, in order to stay that way. But there are few “post-acute” or “sub-acute” facilities for people with mental illness in Oregon, so they only usually end up in hospital once their situation has gotten particularly dire, and for the state, particularly expensive.
“We’re left with this conveyor belt system that can’t move because it’s overloaded,” Bassos explains.
Proving Someone is Mentally Ill
Committing someone to be treated in a psych ward against their will is obviously not something to be done lightly—depending on how seriously ill the person is, they can end up staying in hospital for some time, although the usual length of involuntary commitment is around 3 weeks, according to Bassos. Nevertheless, the state statutes on commitment are written to entitle the alleged mentally ill person to a fair shake.
In the mid ’70s, a precedent was set by a case called O’Connor vs.Donaldson, when a man was committed against his will in Florida for many years, without actually suffering from any mental illness. The civil rights movement has since grabbed hold of mental health issues, and so has the Multnomah County appeals court—it has overturned 50 civil commitments in the past two years, Bassos estimates. So it’s no easy task for the state to commit somebody.
On the day that the person has been issued a hold, a Multnomah County mental health investigator visits them to prepare a report for the court. Mental health investigators need to be masters-level clinical psychiatrists, or above. It’s their job to decide by talking with the person, their doctors and any witnesses, whether the person is willing to be voluntarily treated, is able to be let out soon, or whether to proceed to a hearing to commit.
In the case of “Bruce Willis,” the county investigator met him sitting in the quiet room in Emanuel’s psychiatric ward. He was difficult to redirect, loud, diverting, tangential, and demanded, “Where’s my fucking cigarettes, why am I in here?”. When the investigator left the room to walk out of the hospital, he heard yelling and banging coming from the room.
WILLIS: Pissed…but is he mentally ill?
The issue, of course, is that the man’s behavior could also be consistent with somebody who wasn’t mentally ill, but had in fact been held against their will in a hospital for three days. It’s up to the commitment process to figure out the difference.
On day 3 of the hold, the county has to decide whether to proceed to a hearing or get the patient into some kind of diversion program. If the patient agrees, and a doctor agrees, then that’s usually what happens. Only about 10% of initial holds ever proceed to a commitment hearing. In “Willis’s” case, the patient doesn’t believe he has a mental illness and doesn’t want to remain in hospital, so the investigator decided to proceed to a hearing.
On day 4 of the hold, the Defense Attorney (that’s Bassos, or one of the attorneys he works for) sends a legal assistant to the hospital to write up a report of their own on the alleged mentally ill person.
On day 5, the hearing happens.
So Many Commitments, So Little Time
The upshot of the quick, 5-day process is that Bassos, or one of the attorneys he supervises, only gets to meet the client 5 minutes before the hearing. That’s very different from a criminal case and obviously has an impact on the defense attorney’s ability to adequately defend the person against the accusations being made against them.
During the hearing, the District Attorney has to prove a clear and convincing case to the judge that the person is mentally ill. That means, specifically, that the person not only has a mental disorder, but is likely to pose an imminent danger either to themselves or others. The DA can rely on witnesses, such as the person’s family, or a police officer, or an alleged victim of the person’s behavior to prove the case. Today’s judge is Connie Isgro.
The person is also examined, in public, by two mental health examiners from the county, during the hearing. Today’s mental health examiners are David Mohler and Linda O’Malia.
“They are two of the most competent examiners in the county,” Bassos tells me. “But there’s a catch. An examination is supposed to include a whole slew of different things in terms of taking the patient’s history, talking about medications and observing behavior and so on. But what actually happens in civil commitments is the examiner gets to talk with the client for 10 or 15 minutes, and they have to form an opinion based on that.”
“No psychologist would do a patient evaluation in public,” Bassos says. “Much less while the District Attorney was cross-examining their patient, sometimes quite aggressively.”
Today’s hearing could have go either way. “Willis” is homeless, and has shown up at his family’s house over recent weeks with a heavily bleeding face and they say, has threatened suicide if his family won’t help. He’s also come into contact with a cop, following an alleged altercation at a Shell gas station—where his face was also covered in blood, according to the officer, who also testifies at the hearing.
Bassos writes notes on his legal pad as the case proceeds, and tells me this case is fairly typical of a commitment hearing.
As “Willis” is questioned by the county examiner, he tells her he has recently fallen into the Willamette River. He’s unspecific about how or why—he says “a wave came over” while he was sitting on a pier, then, that someone may have pushed him.
These incidents are weird, but not sufficient in and of themselves to prove the nexus between the person’s mental disorder and his imminent danger to himself or others. It’s not the court’s role to take good care of the person, only to ensure he isn’t dangerous, or in danger. And there’s a whopping gulf in between.
In a 1995 case, State vs.Sea, the committed person had a lot of weight loss, delusions, cessation of contact with their case worker, and blackouts. But the state didn’t prove the nexus between those incidents and the person being a danger to themselves or others, thought the appeals court, when it overturned the commitment. It said the commitment court had taken an “overly paternalistic” approach to the alleged mentally ill person.
It is not the commitment court’s job to replace a parent. Perhaps the biggest irony of today’s hearing is that if “Willis” wins, he’ll probably be little better off than if he loses. If he’s let out this evening, he’ll continue to wander the streets, or perhaps end up in a shelter, if he’s lucky. Or perhaps, if he’s really lucky, with a room at the Joyce Hotel on Stark Street.
Either way it’s likely his mental health will continue to deteriorate. People are frequently kicked out on the courtroom steps after winning a hearing, with no money, no bus ticket, and nowhere to go. Is that a recipe for their continued success in life? Probably not. But it’s their right, in this country, to live free, or die hard.
This Bruce Willis obsession is ridiculous. I apologize.
“I Work For The FBI…”
In “Willis’s” case, the court decides to commit him not only based on the evidence presented, but on the manner of his conduct in the courtroom. After demanding water repeatedly he left the room to pee, only to return with the following statement:
“Okay. I’m going to lay it out for you. I work for the FBI. I do pedestrian reconnaissance. You can contact the senators Binder and Binder, they represent me.”