Civil Rights for the Civilly Committed: Legal Challenges to Oregon’s Behavioral Health Practices

• October 28, 2022

• Gregory Moore , Dickinson Wright
• Allison Tuohy , Dickinson Wright

On September 28, 2022, a civil rights lawsuit was filed in the U.S. District Court for the District of Oregon on behalf of Unity Center for Behavioral Health and other health care providers.[1] This suit was brought against Patrick Allen, in his capacity as Director of the Oregon Health Authority (OHA), challenging Oregon’s policies regarding involuntary detention and treatment of patients with mental health issues. The plaintiffs allege that OHA is forcing acute care hospitals to provide long-term care for civilly committed patients. These community hospitals are ill-equipped to provide long-term treatment for mental illness, which plaintiffs contend violates the constitutional rights of both civilly committed patients and the community hospitals in which they are unnecessarily confined. The plaintiffs are seeking declaratory and injunctive relief, nominal damages, and recovery of attorneys’ fees for pursuing litigation.

Oregon is required by law to serve three populations of those with mental illness:

1. civilly committed persons,
2. individuals found guilty except for insanity (GEI) in a criminal case, and
3. those who are arrested but unable to participate in their defense due to mental illness (aid-and-assist).

The complaint alleges that OHA has neglected its duty to those civilly committed, failed to provide adequate long-term treatment, and unlawfully prioritized care for other populations of mentally ill patients pursuant to Or. Rev. Stat. § 659A.142(5)(a) and (6)(a). Civilly committed patients have typically been referred to Oregon State Hospital (OSH), which is the only state hospital in Oregon and is intended to be used for treating those with mental illness.[2] However, in 2019, OSH stopped accepting civilly committed patients, with few exceptions and shifted its priorities to aid-and-assist and GEI patients. Since then, OHA has not created more space to properly treat civilly committed patients. The hospital systems remain supportive of the rights and appropriate treatment of aid-and-assist and GEI patients, but they hope that the rights and appropriate treatment be extended to civilly committed patients during their involuntary detention as well.

Oregon law requires that civilly committed individuals receive both stabilization and long-term treatment.[3] Further, the state is responsible for initiating the civil commitment process, which includes a hearing and arguments presented in front of a judge. Through these proceedings, a judge can order commitment so long as one can argue successfully that mental illness makes the person “dangerous to self or others” or “unable to provide for basic personal needs like health and safety.”[4]

There are two components to civil commitment of a patient: stabilization and long-term treatment. First, providers at acute care hospitals must stabilize civilly committed patients, which entails monitoring patients (often 24 hours a day, seven days a week) in a highly restrictive, locked environment. Because stabilization is a necessarily restrictive treatment, providers intend for it to last no more than 14 days. Once the patient has been adequately stabilized, state law requires the patient be placed in a long-term treatment facility for rehabilitation. The objective of long-term care is to facilitate patient recovery in a more relaxed setting and to prepare for their return to the community. Under long-term care, patients have less restrictions and can practice independence. Patients enjoy a more stable peer environment where they participate in socialization, group counseling, and peer support. Patients can wear their own clothes, use day passes to go places, and participate in family and friend events. Long-term care facilities such as OSH also offer training and educational programs for patients as well as gym facilities, outdoor facilities, and a café. These opportunities for autonomy and independence are not available to patients in acute care hospitals.

Oregon is in the midst of an unprecedented mental health crisis, treating and stabilizing patients who may simultaneously be struggling with substance abuse disorders and homelessness. The plaintiffs’ complaint highlights the importance of patients being transferred to long-term care once stabilized; it is through long-term care that patients are able to successfully transition back into the community. More than 500 individuals with severe mental illnesses are civilly committed to OHA for treatment each year. These individuals exhibit symptoms such as psychosis and dissociation, paranoia, hallucinations, suicidal or homicidal ideation, violent behaviors towards themselves or others. OHA is statutorily required to send civilly committed patients “to the facility best able to treat” or delegate to a community mental health program director who can assign the patients to a “suitable” facility.[5] According to the complaint, rather than transfer patients to the appropriate facility, the state is keeping them in restrictive community hospital settings for the entire 180-day length of their commitment, or even up to a year if renewed by the court. The plaintiffs estimate that hundreds of patients are being “warehoused” in acute care hospitals in violation of their civil rights and assert that patients should rightfully be placed in specialized long-term care facilities such as OSH.

Because civil commitments are frequently appealed, the legal standard has become increasingly difficult to meet. Plaintiffs contend that OHA’s practices violate its duties under Or. Rev. Stat. § 426.150, namely refusing to take civilly committed patients into custody and delivering them to an assigned treatment facility. OSH rarely admits civilly committed patients, yet according to sworn testimony from behavioral health director Steve Allen, OSH is not at 100% capacity and has empty beds. In 2022, the OSH census averaged fewer than 20 civil commitment patients per month, allowing hundreds of patients to remain in community hospitals.[6] While there have been some expedited admissions, not one civilly committed patient has been admitted to OSH using the typical admission criteria, according to the complaint. As such, they remain on a waitlist for OSH. Violence and assault against care providers has seldom been enough to gain expedited admission to OSH. The bar is so high for admission that only the most extreme of situations, such as arrest, elicit entry to care.

The state’s mental health crisis has been exacerbated as a direct result of OSH limiting admittance of civilly committed individuals to long-term treatment facilities. Consequently, community hospitals are feeling the negative impacts of OHA’s practices. OHA has been relying on community hospitals to care for patients who should be in long-term care, which has affected the hospitals’ capability to care for patients presenting with acute mental health issues. Plaintiffs claim that OHA forces these institutions to care for civilly committed patients who are legally under OHA’s custody for treatment, citing OHA’s actions as a deprivation and an unlawful taking of the health systems’ property without due process under the Fifth Amendment and under Article I, Section 18 of the Oregon Constitution.

Subsequently, community hospitals are forced to funnel significant resources to civilly committed patients who have no medical reason to remain in acute care settings. Plaintiff health systems highlight the added costs without just compensation, such as medication, damage to hospital property, additional care providers, security, one-on-one sitters, and other safety precautions. Moreover, there is currently no process in place or meaningful opportunity to be heard for these community hospitals to contest the “warehousing” of civilly committed patients. Although the relevant state procedure permits the director of OHA to consult with the admitting physician of a hospital to determine whether the best interests of the patient are served by admitting to the community hospital, this procedure is not being followed according to plaintiffs.[7]

Additionally, this is not the first time that OSH’s practices have been scrutinized by the Oregon courts. In 2021, Judge Marco A. Hernandez granted injunctive relief to GEI patients who claimed they were unconstitutionally being denied admission to OSH due to OSH prioritizing the admission of aid-and-assist patients.[8] Judge Hernandez asserted that any sort of prioritization was due to OSH’s failure to provide funds, staff, and facilities required to satisfy the civil rights of the groups.[9] Plaintiffs assert that OHA has known about these practices and has failed to take steps to remedy the situation. OHA is directly benefitting from the outsourcing of the civil commitment process, resulting in a lack of any incentive for the state to change its current practices.

The plaintiffs argue that the state’s lack of prioritization of care to civilly committed patients violates the Due Process Clause of the Fourteenth Amendment. As mentioned in the complaint, the Supreme Court has consistently held that involuntary detention due to mental illness is a “massive curtailment of liberty.”[10] Due process requires that civilly committed individuals receive treatment that leads to the improvement of their mental conditions and eventual release from involuntary detention. By leaving patients in acute care settings for extended and often unknown periods of time, the plaintiffs argue that treatment in community hospitals is not improving the patients’ mental conditions. In fact, this practice prevents patients from receiving the next phase of necessary care and can cause decompensation back to unstable mental conditions. It is essential for patients’ improvement that they advance to the second step of the civil commitment process. In essence, Oregon’s current process of civil commitment is undermining the very purpose of civil commitment, according to plaintiffs.

This suit is a positive step for ensuring that civilly committed individuals have access to appropriate treatment at all stages of care. Accepted industry standards require a minimum of 50 beds per 100,000 people to provide minimally adequate care for individuals with severe mental illness. Oregon fails to meet this benchmark, as bed availability over the years has been steadily declining. The Treatment Advocacy Center has some policy recommendations for Oregon to address the state’s mental health crisis as it relates to civilly committed patients. These recommendations include:

• Stop eliminating public psychiatric beds.
• Restore a sufficient number of beds to create access to inpatient care for qualifying individuals in crisis.
• Make active use of the state’s civil commitment laws to provide more timely treatment to individuals in need of treatment for symptoms of psychiatric crisis and reduce the consequences of non-treatment on them, their families, and their communities.[11]

As argued by this suit, Oregon needs to pivot its focus from the delegation of civil commitment to community hospitals to managing mental illness through rehabilitation and appropriate long-term care options for the state’s most vulnerable populations. By addressing behavioral health appropriately, the state stands to save money, discontinue repeated visits to the emergency department, and curtail repeated arrests and jail visits. The plaintiff hospital systems hope that OHA accepts its responsibility to provide services to the civilly committed as they are required to do by law. This suit has potential to bring about meaningful change to the ways in which civilly committed patients receive behavioral health care services and are sooner able to successfully assimilate back into the community.

You can find the complaint in full here: https://pdfserver.amlaw.com/legalradar/46268558_complaint.pdf.

ARTICLE TAGS

• Behavioral Health Practice Group
• Diversity, Equity, and Inclusion in Health Care Hub
• Behavioral Health