Treatment for the mentally ill: commitment vs. rights
Mail Tribune - 11/13/2017
Nov. 13--Jason Coburn was sleeping under a train when it started moving, dragging him down the tracks and injuring his ribs.
He later fell from an interstate bridge into a canal, breaking his leg and ankle, and was not found for two days. Surgeons put his bones together with a plate and screws, then told him he had to stay in a wheelchair for a few months while his injuries healed.
Instead, Coburn -- who suffers from bipolar disorder with psychosis -- discharged himself in less than a month and left without a wheelchair, crutches or a cane. He set out on a cross-country journey to Oregon to try and reunite with his family, according to an account provided by his mother, Marjorie Rater, who lives in Springfield.
Rater asked a Lane County Mental Health worker in Eugene about having her son committed to a mental institution, but was told his foot and ankle injury would not lead to his death, so he wasn't a candidate.
In Medford, Coburn walked into the Rogue Regency Inn and asked for a shower and some water. When the manager refused, Coburn told everyone he was Jesus Christ and ordered them to bow down before him or he would assault and kill them, Rater learned from a police report on the incident.
Coburn was taken to the Jackson County Jail, then moved to the psychiatric unit at Asante Rogue Regional Medical Center, which offers short-term care. Rater tried to have her son civilly committed for long-term mental health treatment.
A civil commitment hearing was held in a room at the hospital with Coburn, a Jackson County Circuit Court judge, a defense attorney arguing against commitment and a prosecutor, family members and a Jackson County Mental Health civil commitment investigator advocating for commitment.
When those at the hearing who supported commitment tried to describe Coburn's behavior, the defense attorney objected that their statements were hearsay, Rater says.
"Every witness who tried to present testimony based on fact, research and other data that had brought us together to try and help Jason was shot down by objections from the defense attorney," Rater says.
Coburn appeared clear and logical, although he did grow agitated when describing how police had treated him as a homeless man, she says.
Rater says he knows how to present himself well in an interview, especially since he spent 10 years in the U.S. Air Force. After he was honorably discharged, Coburn had his first bipolar manic episode.
The judge ruled that Coburn was not in imminent danger of harming himself or others as defined by Oregon law.
"The judge ruled in Jason's favor, the hearing ended, and he was immediately discharged," Rater says. "So, there you have it. A shock, a disappointment, and a huge emotional letdown."
Coburn announced he had no intention of seeing his family again and planned to go south to a warmer climate. He was released onto the streets, broke into a church to get cookies, stole the church van and drove to California, where he was again arrested, Rater says.
After a string of additional incidents, including allegedly assaulting a police officer and a Department of Homeland Security officer, he is an inmate in a New Mexico detention center facing criminal charges, Rater says.
Although Coburn has cycled in and out of jail and psychiatric units at local hospitals in many states, he has never been committed to long-term treatment in a state-level institution. He is in constant pain from not staying in a wheelchair while his leg and ankle healed, and is blind in one eye from a detached retina, his mother says.
She says commitment standards focus too much on protecting a person's liberty and civil rights, rather than the help they could receive from long-term commitment.
"One of the biggest obstacles the mentally ill face is the protection of their civil rights and getting the treatment they need," Rater says.
She says a mentally ill person also should have a civil right to be a healthy and productive member of society.
"As his mother, I've tried every way I know to help him, and would lay down my life if I knew he could be well. It's so painful to watch him turn into a person you no longer know because of his untreated mental illness," Rater says.
A high bar
Most people who try to have someone committed in Oregon fail.
Coburn's case is unusual in that he even saw a judge.
Of 7,799 civil commitment investigations in the state in 2016, only 749 resulted in a hearing before a judge. A total of 596 people were committed that year, Oregon Health Authority data shows.
Oregon's standards to commit a person to a mental institution are high, says Jackson County Senior Deputy District Attorney Laura Cromwell, who handles mental health cases for the DA's Office.
The standards are based on the law itself, plus Oregon Court of Appeals rulings on commitment cases that have made it harder and harder to get someone committed, she says.
People must post a serious physical danger to themselves or others in the near future, or be at risk of serious physical harm in the near future because they can't take care of their own basic personal needs.
Verbal threats are not enough to prove danger. A person must have committed violence or taken concrete steps to commit a violent act, Cromwell says.
It also must be proven that dangerous conduct is due to mental illness, not just criminal activity, she says.
As for basic needs, Cromwell says a homeless person digging through a Dumpster for food is not eligible for commitment. By searching for food, the person essentially proves he or she is capable of caring for a basic need to get nourishment, at least according to Oregon law.
"That is the exact type of person that the law does not protect," she says.
In a case in which a woman was committed, she had been evicted in the winter but kept returning to her apartment, even though she was locked out. Sopping wet from urinary and fecal incontinence that sometimes accompanies severe mental illness, the woman laid down on the grass, Cromwell says.
"The police found her frozen to the ground. When her gloves were pulled off, her skin came with it," she says.
During the commitment process, families are often frustrated that the information they provide about years of problems with loved ones seems to be disregarded. Instead, the current condition of the mentally ill person takes priority.
"It's their presentation on the day of the hearing that counts," Cromwell says.
Rater, Coburn's mother, says he can put up a facade and appear to be normal when he is questioned. Although he believes he is Jesus, he changed his statements to a more socially acceptable story during the civil commitment hearing in Medford.
"I knew it was an act to get what he wanted. The prosecutor also addressed Jason's persona of being Jesus Christ, and in Jason's manipulative and carefully worded response, he made it clear he did compare himself to Jesus, and that the spirit of Jesus was always in him," Rater says.
Staff members at the behavioral health unit at RRMC frequently see that mentally ill patients are able to maintain a facade for a short period of time during a commitment hearing, says Laurel Nickels, behavioral health services clinical manager.
"It's frustrating and heartbreaking for our staff, especially when we know the person is suicidal. We know the person is putting on a facade and saying what they need to say," Nickels says.
Nickels says there are so many laws protecting people's civil liberties that it's very difficult to get patients adequate long-term care.
The standards for commitment are so strict they practically require someone to be able to see into the future, some critics say.
"The final thing that makes these cases difficult is that the standard of proof is clear and convincing evidence, which is an extremely high level of proof," Cromwell says. "It means that the evidence has to be of extraordinary persuasiveness and highly probable. So it's a very high standard."
Proposals to make commitment easier are regularly introduced before the Oregon Legislature, but either die or end up so watered down they make no difference, Cromwell says.
Pushing for change
Josephine County Circuit Judge Pat Wolke is chairman of the state Work Group to Decriminalize Mental Illness, a state task force looking at ways to make the civil commitment process easier. He has researched civil commitment standards in all 50 states.
In Missouri, judges can consider verbal threats as well as information about patterns of behavior that have resulted in serious harm to the mentally ill person or others in the past.
North Carolina judges factor in threats, the person's history and even extreme destruction of property in considering whether someone poses a danger to others.
New Jersey judges also look at a person's history, potential harm to others or property and whether the person's mental state is seriously deteriorating.
When it comes to providing for basic needs, Minnesota judges consider whether a person's inability to get food, clothing, shelter and medical care could cause serious illness or substantial harm, including significant deterioration of the person's mental state.
Wolke says changing Oregon's laws could prevent tragedies.
He pointed to the November 2016 murder of Avi Feldman in Ashland by Pedro Sabalsa-Mendez, who had been making verbal threats. Sabalsa-Mendez's mother had been unable to get him committed.
Wolke says a commitment standard that takes into account verbal threats could have helped.
"If this definition had been in place, he would have gotten the help he needed and this could have been headed off," Wolke says.
In a state with more than 4 million people, it doesn't make sense that so few are committed, he says.
Since 2010, the number of people committed each year has ranged from a low of 479 in 2014 to a high of 657 in 2012, according to Oregon Health Authority data.
"You have to be extremely psychotic and dangerous -- and that's stupid," Wolke says.
Cromwell says she and Jackson County Mental Health workers have to remain within the parameters of Oregon's law and not recommend that people be committed if they don't meet state standards. Committing such people would constitute a violation of their civil rights.
Yet the fear of another case like Sabalsa-Mendez is always in the back of her mind.
"Then the fear is if we let this person go -- which we have to do ethically -- are they going to go hurt somebody or themselves? And it's a tenuous line to try and toe," Cromwell says.
The state Psychiatric Security Review Board, which oversees Sabalsa-Mendez and others judged guilty except for insanity, does not track how many families tried to get their loved ones committed before crimes occurred, says the board's executive director, Juliet Britton.
If the Oregon Legislature wanted the data, researchers could go through patients' individual records and compile the information, she says.
Anecdotally, Britton says the board does see cases in which family members tried to intervene.
"For many of our new clients, it's very clear in the record family members or the individuals themselves tried to get services and were either denied services or released fairly quickly," she says. "Sadly, that does occur."
Britton says Oregon did have a negative history of institutionalizing people just because they were mentally ill. But now the state has moved in the other direction, with the Court of Appeals interpreting Oregon's civil commitment laws very narrowly.
"Case law makes it very difficult to commit someone," Britton says. "Is there any meaning to the law if it's so difficult to civilly commit someone?"
No silver bullet
Not everyone is on board with the effort to make Oregon's civil commitment process easier.
Disability Rights Oregon Executive Director Bob Joondeph consistently has argued against lowering the bar, saying that commitment is extraordinarily expensive and diverts attention from the need to provide services for the mentally ill at the local level.
"There are those who feel strongly if we just change the standard we can commit more people and that will solve the problem. I don't agree with that opinion," Joondeph says.
It costs $1,198 per day for each patient at the Oregon State Hospital, according to hospital data.
The hospital cares for civilly committed patients, people judged guilty of crimes except for insanity and the accused who need mental health stabilization so they can aid in their own defense.
Committed patients have a median length of stay of 154 days. People found guilty of crimes except for insanity are there for a median of 691 days. Accused people being stabilized for their court cases have shorter stays, at 74 days, according to Oregon State Hospital data.
Committed patients occupy almost one-third of the state's 678 beds, data shows.
"Community-based services are much less expensive, but our state hasn't put major investments in those services," Joondeph says.
The state and communities should offer housing with support services, employment help, better mental health crisis management and better access to medication, he says.
Commitment is only a short-term solution, he argues.
"It can be very helpful to help the person get over the crisis, but it doesn't solve the underlying problem. When the person is discharged, you still have to manage the underlying disorder to not have the next crisis. If resources are not available in the community, you end up with a revolving door situation," Joondeph says.
Local defense attorney John Hamilton has a similar view. He often represents mentally ill people during civil commitment hearings.
If people want treatment, they will accept it, so the civil commitment process is by definition against the person's will, he notes.
"Most people would generally not want to be held against their will for any reason," Hamilton says.
His job is not to argue for what he personally believes would benefit the client, but to represent the client's wishes not to be in custody.
"I can't tell you how often I've had doctors look at me and say, 'Are you kidding?!?'" Hamilton says.
He says those in the medical community argue the patient will continue to deteriorate without medical intervention. They point out patients are cycling through emergency departments, which are expensive settings for care, and straining law enforcement resources.
But patients who are committed are sent out of the Rogue Valley, Hamilton says.
"A really terrible thing, when someone is civilly committed, is they don't stay local. For a person in mental health crisis, it's more therapeutic to stay connected to family and the community. We don't have a long-term facility here," he says.
Hamilton says the state eliminated most of its Oregon State Hospital psychiatric beds during a nationwide movement to deinstitutionalize the mentally ill, but then failed to provide enough community-based care.
"We need secure psychiatric care in local communities. Don't take people away from the support system and community that will help them when they are released," he says.
Joondeph says he understands that mental illness can be devastating to patients and their families.
"I have a great deal of sympathy for parents and individuals with an onset of major mental illness and how devastating that is," he says. "Often psychiatric disabilities significantly impact a person's life. It doesn't allow them to work, results in poverty and places additional stresses on themselves and their families."
But he says society has to be very cautious about taking away a person's freedom, especially when the government is trying to intervene before any violent incident has occurred. The criminal justice system, for example, doesn't send people to prison based on predictions they might commit crimes.
Joondeph says while severe mental illness can be managed, no one has a cure button. Instead, chronic mental illness should be managed in community settings like other chronic conditions, such as diabetes.
"Some of the debates on this commitment issue can become quite passionate," he says. "Everyone I've run into is very well-meaning and wants the best thing for individuals. The question is, 'What is the right thing?'"
Reach staff reporter Vickie Aldous at 541-776-4486 or firstname.lastname@example.org. Follow her at www.twitter.com/VickieAldous.
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