Officials grapple to balance rights, safety of mentally ill

PORTLAND – Winter can be lethal to people without shelter. Last year in Portland, the combination of homelessness, freezing temperatures and mental illness took four lives.

As temperatures drop and the wind chill sharpens, debates are reigniting over how best to balance the civil liberties and the safety of people whose mental conditions render them unable to make good decisions.

In Oregon, with a population of 4 million, about 600 people are required to receive treatment for mental illness against their will each year. That is a low rate compared with that of other states.

A workgroup of judges, mental health advocates, police and state lawmakers is trying to revise those rules to allow officials the latitude to ensure that fewer people like Karen Batts die on the streets.

Batts grew up in Portland a vivacious, friendly teenager and Rose Festival princess. As she entered her 20s, she was slowly overtaken by delusions and paranoia due to schizophrenia. Family members repeatedly tried to help her. But they were often frustrated by obstacles to ensuring she took her medicine and received treatment because she never qualified for civil commitment, they said.

Her case, profiled in the Oregonian/OregonLive, was one the state workgroup looked at when weighing changes to state law to better serve severely mentally ill people.

In addition to Batts, five other people died in the cold winter including Zachary A. Young, 29, who had mental illness and slept in the woods. Mark Elliot Johnson, 51, and David Guyot, 68, also died outside in the cold.

Sen. Floyd Prozanski, a Democrat who represents south Lane County and north Douglas County, said he might introduce a small set of tweaks to the involuntary treatment law in the short February 2018 session. But the workgroup is mostly focused on a broader bill for 2019.

Prozanski worked at a district attorney’s office and is the chairman of the Senate Judiciary Committee. He said that backdrop informs his view of ways the law could be strengthened – but also show restraint.

“We want to do the right thing, and part of the right thing is we don’t overreact where you don’t take someone’s liberties away,” Prozanski said.

That balance has been the fulcrum for the narrow guidelines Oregon uses now. Groups that advocate for the rights of people with mental illness like the National Alliance on Mental Illness are also present in these discussions, saying that in the past, involuntary treatment laws were too broad. Those allowed states to keep people who could take care of themselves in hospitals indefinitely, and even now, that many people who experience a psychotic break or mental health crisis are stigmatized and should be provided services rather than locked away.

Bill Osborne heads a Multnomah County team of master’s level mental health workers who investigate up to 4,000 cases a year of people recommended for involuntary commitment. His team receives “notices of mental illness” from a hospital which indicate someone is being held there for five days. Before that time is up, Osborne’s team must review police records, court documents and interview friends and family members to determine whether to go before a judge and ask that the person be committed.

About 10 percent of those cases end up before a judge, and the overwhelming majority are sent to longer-term treatment against their will.

That work has been refined over time to account for Appeals Court rulings. Cases Osborne might have approved for trial in the past wouldn’t be feasible today, he said.

“We’ve definitely seen a narrowing of the definitions. They’ve talked about what clear and convincing evidence is, how the state is not supposed to be paternalistic and tell them how to live,” Osborne said. “It’s made our job one of really making sure we have a strong case to move forward.”

During the winter, Osborne’s team is allowed to use the weather as a justification to put people into the Oregon State Hospital or keep them there. This past winter, Osborne factored in the fact that some of the people he investigated were underdressed for the weather and sleeping in a tent when he made his case to a judge.

Cases like Batts’, though, haunt him and his team. They reviewed her files after reading about her death and found that, while they had dealt with her in the past, they hadn’t seen her in a long time. But, without her being referred to their office, he can’t say where the system failed her.

In other cases, people come to his team’s attention but he and his colleagues can’t show the court recent enough evidence that the person is in jeopardy. “It’s really disheartening sometimes to see someone cycle through the system multiple times,” Osborne said. Current case law establishes strict time frames to prove someone is a danger to themselves or others. “Even if common sense says they are mentally ill and not doing well, (if) we can’t prove they are dangerous, I don’t have a case.”

The state hospital, where most patients are sent to get court-ordered treatment, is short of beds. Josephine County District Judge Pat Wolke is leading the state workgroup and outspoken about the state’s shortcomings in its response to severely mentally ill people.

Wolke started a mental health court in Josephine County, based on the drug court model, where people accused of crimes that seem to be triggered by severe and persistent mental illness – usually schizophrenia or bipolar disorder – are rerouted from jail or prison. Instead, they are voluntarily or involuntarily put through a program that lasts about a year, under which they receive treatment and medication in their homes from mental health workers.

Wolke, who served as the mental health court judge for 10 years, says he’s seen great success. Many people who had been chronically homeless or charged with frequency public nuisance offenses started taking medication, received therapy and found stable housing and work.

Still, he said, mentally ill people are needlessly clogging Oregon’s prisons and jails. By a recent state count, one in three prisoners requires mental health treatment.

Even more disturbing to Wolke are people in need who don’t show up in the mental health or prison system because the requirements to compel someone into treatment are so stringent.

“Our civil commitment law is a joke. It doesn’t work for anybody,” Wolke said.

He pointed again to Batts, who had several encounters with police and emergency room doctors before her death. None were able to compel her to receive supervised treatment.

Wolke understands why she was left to her own so many times, because he is often in the same situation.

“As a judge, I’m required to follow the law whether I agree with it or not,” Wolke said. “So I do, but it hurts.”