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Oregon State Hospital faces dilemma with judge's order to discharge patients early

A federal judge ordered the state's psychiatric hospital to begin releasing patients because others who need treatment are spending weeks in jail waiting to get in.

SALEM, Ore. — Oregon State Hospital will start releasing a group of patients every month on Oct. 12 because the hospital is so full that people are being delayed treatment as they wait to get in, a federal judge ruled.

The judge's ruling stems from a lawsuit filed 20 years ago. 

In 2002, the nonprofit Disability Rights Oregon sued the state, claiming it was taking too long for people with mental health issues facing criminal charges to get into the state's primary psychiatric hospital. The court agreed, and the state appealed and lost.

When the issue rose again during COVID-19 — the hospital being at capacity as people needing treatment waited for vacancy from their jail cells — Disability Rights Oregon and the Metro Public Defenders Office went to a federal judge, asking for firm timelines for treatment that will move people out of the hospital. 

Those being released from the hospital are called "aid and assist" patients, meaning they were arrested for a crime but were deemed unfit to aid and assist in their own defense due to mental health issues, so a judge sent them to Oregon State Hospital. 

RELATED: Oregon State Hospital will start releasing patients facing criminal charges

Because of the court's ruling in 2002, people are supposed to spend no more than seven days in jail before being sent to the state hospital. Currently, the wait is closer to 40 days. 

Emily Cooper with Disability Rights Oregon explained to KGW why she felt this problem needed to be readdressed. 

"Jails are not designed to treat. They're designed to punish. So jails are in this awful predicament of how do we keep this person safe? And the way they tend to do that is to take away their clothes, to take away their belongings, to put them in isolation rooms — and that is hard on anyone's mental health, much less someone who already is pretty ill," Cooper said. "So you have these awful, punitive jail conditions. But the other real, major thing is that people die in jail, waiting to get to the state hospital. So that's why the seven-day rule that was implemented by the court 20 years ago was so important. There's a recognition — not just that their liberty is being deprived, but there are some real, serious, irrevocable harm that can happen to people while they wait."

Cooper pointed to a case last spring in which a 22-year-old man died in Washington County Jail while suffering from mental health issues. He stopped eating and drinking in the jail and died waiting to be sent to the state hospital. 

RELATED: Man dies in Washington County jail, facility's 3rd death in 2 months

On Sept. 1, a federal judge established new timelines for people getting treatment at the state hospital while awaiting trial. The timeline calls for anyone charged with a misdemeanor to be released within 90 days; those charged with a nonviolent felony must be released within six months; anyone charged with a violent felony must be released within a year. 

Cooper said these new rules should allow enough time for patients to get the treatment they need.

"I think the vast majority of people sent to the state hospital for restoration treatment are restored within these time periods," said Cooper. "And we know that the hospital has what they call their 'ready to place' list, and right now that ready to place list I believe is close to 60 people who they say don't need to be at the state hospital anymore. And so I think the ultimate problem is a lot of folks assume that when you go to the state hospital, you are there for comprehensive mental health treatment until you are 100% better, and that's just not the reality. The group of patients we're talking about are simply restored to competency, which means they know who their attorney is, they know who the judge is, they know what charges are filed against them. But they may still have unaddressed mental health issues."

There will be 23 patients released on Oct. 12. Seventeen of them are charged with misdemeanors and six with nonviolent felonies. All of them are on the "ready to place" list. More than 100 patients will be released over the next 15 months to make room for other patients. 

Many behavioral health professionals are concerned that patients will end up living on the streets once they are released.

"I think that is a valid concern because a lot of the people that are on the wait list right now to get into the hospital were arrested for crimes related to their houselessness," said Cooper. "They may have already not had a home and been charged with vagrancy or trespassing. And so yes, I think that is a risk that they were houseless and they will be again, but there's still no legal or clinical reason — because someone doesn't have a home, to keep them in a jail or keep them in a psychiatric hospital."

RELATED: Oregon OSHA issues $54K workplace safety fine against Oregon State Hospital

Washington County District Attorney Kevin Barton disagrees with Cooper's logic. He and two other district attorneys sued to block the judge's order on the new timelines and lost. 

"The first question is, 'Where do they go?' Some might say they should go back to the jail because that's where they were before they went to the hospital," Barton said. "Some might say they shouldn't go to the jail because there's a mental health issue they have and the jail's not a good place for people with mental health issues. So if they go to the jail, that's problematic. If they don't go to the jail and go to the community, that can be problematic depending on the nature of the crime that the person committed.

"For example, in Washington County we looked at our list of who's who at the state hospital now, and we have three people who are facing murder charges. Two of those people are beyond the one year time limit that is now imposed. So depending on how this works, it's entirely possible that we could have people facing murder charges, sexual assault charges, domestic violence, child abuse ... who are released back to the communities."

Barton explained that because a judge said the individuals charged with those types of crimes don't belong in jail, it's unclear where they might go. 

KGW's Pat Dooris asked why the jail couldn't just create a designated area for people with mental health issues. Barton said it's an idea, but it's not realistic. 

"That certainly is one solution," Barton replied. "You could essentially create a county hospital to replace what the state hospital is doing. The question there though is there are 36 counties in Oregon. How quickly can 36 counties create 36 separate little hospitals to do what the state should really be doing in the first place? And the reality is that's not going to happen. Those resources don't exist in all 36 counties. They may not exist in any single county. Because that's asking a pretty big lift for the counties to do in such a short amount of time. Because we're talking about a matter of weeks the hospital plans to suddenly discharge people."

Barton said a real solution would be to expand Oregon State Hospital beyond its main campus in Salem and its smaller campus in Junction City outside Eugene. He said the state hospital needs more capacity and blamed hospital executives for a lack of leadership, accusing them of ignoring a long-known issue. 

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