How Oregon’s laws on forcing mental health treatment could change this year

It has become a heartbreaking ritual in Oregon’s Capitol.

Every year or two, family members of people with severe mental illness come before lawmakers hoping for a turning point. They have watched loved ones disappear into their disease, and they’ve been helpless to convince Oregon’s rigid mental health system to force treatment.

“It’s beyond gut-wrenching and cruel to stand by and watch a person decompensate into severe psychosis,” Judy Thompson, a St. Helens resident, told lawmakers in 2021.

In late 2018, Thompson watched as her son’s schizoaffective disorder grew worse, unable to get him the hospital care she was convinced he needed. That changed the day he led Oregon State Police troopers on a high-speed chase, believing he was a U.S. marshal on a mission. By the time he was civilly committed, Thompson’s son had crashed his car, injured two others and landed a felony charge.

Heidi Hayward watched her mother struggle with bipolar disorder, sometimes setting fires or writing on her apartment walls in blood. Time and again, it wasn’t enough to land her in the Oregon State Hospital, the state’s largest psychiatric facility, in Salem.

Stints in the local hospital did little lasting good, Hayward told a legislative committee last year. “Because she wasn’t waving a gun around or actively threatening to kill herself, they always released her within 24 hours to two weeks.”

Hayward’s mother eventually disappeared for six months. She was civilly committed after a relieved Hayward found her disheveled and living on the streets of Portland. As with Thompson’s son, the forced medication helped.

“She was taking her medication, she was getting therapy,” Hayward said, “and my mom started to come back.”

Related: Deputies refuse to attend Portland civil commitment hearings without their guns

At least three times in the last six years, state lawmakers have proposed changes to make such stories less common. By updating the state’s civil commitment law, proponents of those changes say the state could get people into care before a tragedy or criminal act — not after.

“Why are we arresting people and then committing them?” said Chris Bouneff, executive director of the National Alliance on Mental Illness Oregon. “Why do we need to wait until they have a criminal record?”

But pushes to relax Oregon’s commitment standard are fiercely opposed by many who live with mental illness, along with their advocates. Repeatedly, bills have failed to overcome arguments that more forced treatment will produce worse outcomes for people with serious illness, and that the state should instead focus on better overall mental health care.

This year, the political winds may have changed.

For months, advocates, prosecutors, care providers, defense lawyers, judges and others have met extensively to hash out changes in how Oregon deals with mental illness. Faced with a public worried about a mental health crisis that has spilled increasingly into the open, people involved in those talks believe there is little doubt the Legislature will act — the question is how.

This week, lawmakers on the House Judiciary Committee are preparing to take up that question in earnest. Here’s a rundown of what you should know.

What is civil commitment?

Under state law, a judge can order people in severe crisis into the care of the Oregon State Hospital, or another facility, if several conditions are met. The person must suffer from a mental disorder that poses a threat to their wellbeing or the safety of others, or the person must be unable to provide for their own basic needs, a term left open to interpretation under state law.

Commitments can last up to six months, and be extended afterward if necessary. Because the action denies a person’s civil liberties, commitment is considered a last resort. It is used only for people who refuse treatment a court deems they need to prevent harm.

Over the past three years, between 5% and 6% of cases initiated statewide eventually resulted in a commitment, according to the Oregon Judicial Department. In each of those years judges ordered between 400 and 450 commitments.

Related: Oregon group wants to make it easier to commit those in mental health crisis

What’s the problem lawmakers are trying to solve?

Oregon’s statute for civil commitment is vague. It doesn’t include guidance for what it means to be “dangerous to self or others” or to be at risk of “serious physical harm.”

In the absence of that firm language, courts have come up with their own interpretations. Proponents of a legal change say decisions from the Oregon Court of Appeals over the years have created an increasingly high bar that prosecutors must meet to win a commitment — to the point that officials sometimes don’t initiate proceedings in seemingly clear-cut cases.

“The all-too-common result is that someone in crisis is turned away from treatment when they need it most,” Wil Berry, a Central Oregon psychiatrist, told lawmakers in 2019. “Doctors, law enforcement, families and patients know this message all too well: ‘we understand your concern, but it’s not imminent enough for us to do anything.‘”

What’s being proposed to fix the issue?

Bouneff and NAMI Oregon have offered a leading proposal for altering the commitment standard this year. It would direct a judge to deem a person dangerous to themselves or others if the judge believes that harm could happen in the next 30 days. That’s a broader standard than current practice, which focuses on imminent harm. The bill would also specifically point to past threats or attempts at harm as factors a judge can consider.

Bouneff’s organization represents both people with mental illness and their family members. He said the bill is an attempt to walk a fine line. NAMI wants to see people get necessary help before they wind up hurting themselves or committing a crime, but not make commitments excessively easy, either.

“You can’t point to a time in our history where we did commitment well,” Bouneff said. “We’ve always done it poorly. We’ve always violated peoples’ rights. We need to be really precise about what the tool is.”

The bill is due for a hearing on Thursday, and is expected to move forward with an amendment Bouneff said will better accomplish his organization’s aim. It has the support of a broad swath of mental health care providers, along with Gov. Tina Kotek, who called for changes to the civil commitment law in her state of the state address.

“Why is it OK that we watch very ill people harm themselves because we are unwilling or unable to get them the health care they so desperately need?” Kotek said in that January speech.

What’s the argument against changing the commitment standard?

Groups like Disability Rights Oregon and defense attorneys who represent people in civil commitment hearings are dubious of changes that could make forcible treatment easier.

They say commitments are often not the life-saving therapy many people have in mind. Just as often, they are traumatic affairs that can instill a permanent distrust of the health care system, and can actively harm a person’s living situation.

“People lose housing that they had secured by nature of being civilly committed,” Jake Cornett, executive director of Disability Rights Oregon, told lawmakers in January. “They lose existing support networks that they have. We’ve had clients have service animals taken away. They regularly then cycle through this structure of homelessness, jail, civil commitment and then back into homelessness.”

Related: Oregon budget writers offer up a spending framework — and a lot of uncertainty

Civil commitment is also expensive. According to DRO’s estimates, committing a person to the state hospital for the maximum 180 days costs roughly $320,000. Cornett and his allies said the state should instead spend that money building out mental health services that catch people before they are ill enough to warrant commitment

Opponents of a change also bring up an undeniable fact: The state is already unable to put many civilly committed patients into appropriate care. Often, those committed are forced to remain in a hospital setting not designed for their needs, waiting for a psychiatric treatment bed to open elsewhere.

“What we see is that people sit in emergency rooms, they sit in disused wards of private hospitals,” Cornett said. “They are oftentimes given heavy doses of medications that leave them, frankly, drooling and nonresponsive… This is not the quality of care any of us should want.”

Wait, aren’t civilly committed patients sent to the Oregon State Hospital?

More and more often, no. In recent years, the hospital’s 705 psychiatric beds have been dominated by people who are wrapped up in the justice system.

Some are people found guilty except for insanity by the courts. But the vast majority of admissions come from so-called “aid-and-assist” patients. These are people who face criminal charges, but whom a judge has deemed incapable of understanding the accusations against them because of a mental illness.

A 2002 federal court decision required the hospital to accept aid-and-assist patients within seven days of a judge’s order. But the hospital has struggled to meet that standard, often leaving patients waiting in jail longer than a week until a bed clears. The problem could lead to major penalties for Oregon: A federal judge is currently weighing whether or not to hold the state in contempt of court orders.

Aid-and-assist cases have all but shut the facility to civil commitments. Today, only about 5% of state hospital patients are there because they were committed, down from roughly 50% a quarter century ago.

Meanwhile, the state has far too few beds elsewhere. A recent state study found Oregon needs nearly 500 more inpatient psychiatric beds, and another 200 beds at locked treatment facilities.

What good will more frequent civil commitments do if there is nowhere to put people?

This is a problem people on all sides of the issue agree on. The question is what else lawmakers can do in a year where federal funding is deeply uncertain.

Kotek is pushing a bill that would spend an additional $90 million to expand mental health and addiction treatment around the state. That would complement a massive mental health spending package lawmakers passed in 2021. That money, along with investments since, is helping to pay for hundreds of new beds currently in development.

But the state’s top budget writers have issued caution that a relatively rosy funding picture could quickly wilt. If President Donald Trump and congressional Republicans slash federal funding for health care or education, as many Democrats fear, Oregon will be more focused on salvaging services than expanding them. The OHA announced last week that $117 million in federal grants was abruptly canceled.

Related: Oregon’s health services impacted by nearly $120M in federal cuts to COVID-era grants

Other bills seek to get at the problem in different ways.

The state’s district attorneys have introduced a bill that would force the Oregon Health Authority to add hundreds of beds to the state hospital, and allow some aid-and-assist patients to be treated in jail.

The health authority, meanwhile, is pushing legislation to limit the time aid-and-assist patients can spend in community-based treatment programs.

That’s a proposal designed to free up beds throughout Oregon, where state hospital patients can then be sent. It’s also a bid to duck the potentially expensive federal contempt finding over the hospital’s inability to accept aid-and-assist cases fast enough.

After a hearing earlier this month, U.S. District Judge Adrienne Nelson is weighing whether to issue that order. The actions lawmakers this session take could be pivotal to her decision.

“Either the Legislature can spend that money or a federal court is going to force the Legislature to do it,” Bouneff said. “I’m absolutely convinced.”