State v. M. C. D. (In re M. C. D.)

304 Or.App. 775

467 P.3d 84

In the MATTER OF M. C. D., a Person Alleged to have Mental Illness.

State of Oregon, Respondent,

v.M. C. D., Appellant.

A171209

Court of Appeals of Oregon.

Submitted April 21, 2020.

June 17, 2020

Alexander C. Cambier and Multnomah Defenders, Inc., filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and E. Nani Apo, Assistant Attorney General, filed the brief for respondent.

Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.

MOONEY, J.

Appellant seeks reversal of an order continuing her commitment to the custody of the Oregon Health Authority for a period not to exceed 180 days, which is based on a determination by the trial court that appellant is unable to provide for her basic needs. ORS 426.005(1)(f)(B). In her sole assignment of error, appellant contends that the record does not contain legally sufficient evidence that she continues to be a person with mental illness and that she is in need of further treatment. As we explain below, we agree with appellant. Accordingly, we reverse.

We "view the evidence, as supplemented and but-tressed by permissible derivative inferences, in the light most favorable to the trial court's disposition and assess whether, when so viewed, the record was legally sufficient to permit that outcome." State v. M. A. , 276 Or. App. 624, 625, 371 P.3d 495 (2016) (internal quotation marks omitted). We describe the facts in accordance with that standard.

Appellant was admitted to the Oregon State Hospital in October 2018 after being civilly committed. The trial court held a hearing in May 2019 to consider whether appellant's commitment should be continued. See ORS 426.307(6) (if person with mental illness requests hearing, "court shall * * * conduct a hearing and * * * shall determine whether the person is still a person with mental illness and is in need of further treatment"). The state called two witnesses to testify at the hearing; appellant did not testify. Neither party offered any exhibits.

The first witness who testified was Dr. Shad, who had been appellant's treating psychiatrist at the hospital for approximately four months. Shad explained that appellant has a diagnosis of schizophrenia. Appellant also has a diagnosis of post-traumatic stress disorder (PTSD) and a historical diagnosis of catatonia, but Shad had not seen any symptoms of catatonia while appellant had been in the state hospital. Shad testified that appellant does not have any insight into her mental illness: She claims not to have any psychiatric problem, says that she does not need medication, and states that medication makes her feel "toxic and even sicker." She refuses to take oral medication and, for that reason, four or five months ago, the hospital started her on a long-acting injectable medication, Aristada, to treat psychosis. The dosage of medication she is on can be administered every four weeks or every six weeks, and a form of the drug that can be given via injection once every two months has recently become available. Shad expressed his opinion that giving appellant an injection every other month—or six times a year—might be desirable in her situation because it would require fewer clinic visits and because she refuses all oral medications. Shad explained that, since appellant has been taking the injectable medication, she has shown improvement in her behavior. She is not aggressive, minds her own business in the unit, and has not had problems interacting with her peers and staff.¹ In addition, a few months before the hearing, she was not taking care of her personal hygiene, including not showering for days, and she was trying to collect her urine and feces so that she could see "if drugs are toxic or not." Those behaviors have stopped. However, appellant has a delusion—a symptom of her schizophrenia—that has continued, which is that she believes that accepting Social Security benefits in the past is what made her sick. Shad testified that that delusion is so strong that appellant refuses to accept any benefits whatsoever.

Appellant does not have a history of not eating or drinking appropriately and she does not have any major medical issues; Shad did not express concern regarding those areas of appellant's life. Shad testified that appellant "seems to have depression" and has some obsessive-compulsive features; for example, she gathers items like papers, flowers, and leaves of trees.² The signs of depression—such as lack of expression, isolation, and being less interactive—began to show up in the weeks before the hearing. Shad does not know if it is depression or a depressive phase of appellant's diagnosed illness. Shad would like to treat those symptoms with another set of medications called Selective Serotonin Reuptake Inhibitors (SSRIs), but every time he asks appellant for permission to give her such medication, she refuses. According to Shad, SSRIs would also help to treat her PTSD.

Shad expressed concerns with appellant transitioning back to the community and explained that she has refused to go for any screenings that would facilitate her entering a lower level of care or a local residential facility; 11 screenings had been arranged for her within the past 60 days. Appellant has stated that she just wants "to be free." Appellant is also refusing to accept benefits, which means that, if released from care at the hospital, she would be going to the outside world homeless and with no money to buy food and sustain herself. When Shad discusses those concerns with appellant, she responds without further explanation, "I'll manage." Shad stated that he "just [does not] feel comfortable in letting her go outside in the world without any support[,] considering her * * * psychiatric illness." Appellant has a mother and brother, but she has alienated both of them and they are not a resource for her to rely on.

When asked whether it was his opinion that appellant would be unable to provide for her basic needs if she were to be released without any further assistance from the hospital, Shad stated:

"I believe so just because of that one reason that she would not have any means to buy anything. And so the activity of daily living like even cooking, you know, and taking showers and I'm really concerned where she's going to go and achieve all those things. So I think this to me is really a dangerous situation."

According to Shad, because appellant is on an injectable, longer-lasting form of medication, it could be three to five months before she would start to decompensate, relapse, and experience psychosis if she were released and no longer took the medication. But whether appellant takes antipsychotic medication is not the only issue for Shad—his "bigger concern" is how "she is going to survive out there without any benefits, without any place to go and live." It is Shad's professional opinion that appellant will not be able to get a job because of her behaviors, her depression, and the fact that she will not have a place to live and her hygiene will become questionable because of her lack of facilities and resources.

When asked about appellant's need for further treatment, Shad explained that he "wish[ed] she could agree to some more medications" and "if given a chance[, he] would really like to optimize her treatment." He would like to see an improvement in her depression, because psychosis can sometimes worsen if other psychiatric symptoms are not treated. However, Shad acknowledged that there was "nothing [they] could do" because of appellant's refusal to take oral medications or cooperate with screenings for a residential living situation, and the likely next step would be to appoint a guardian for her.

The state's second witness was Spencer, who is a clinical social worker at the state hospital. She meets with patients, works on discharge planning, and does assessments and family therapy. She also makes sure patients have benefits and she works with the benefit coordinator. Spencer is appellant's social worker and has been working with her to try to transition her out of the hospital to another placement. Spencer has helped obtain referrals to optional placements for appellant to consider, such as group homes and adult foster homes. As noted previously, appellant refused to interview with any of those potential placements. Appellant has told Spencer that she does not want to live in any kind of home; she wants to be out in the community and "just wants to be free."

Spencer has asked appellant a number of times specifically what her plans are for how she will survive if released from the hospital: "What will you eat, where will you sleep[?]" Appellant just says that she will be okay, but does not express any plans. Spencer also testified that appellant's family is not a housing resource for her, in part because there is a no-contact order in place that prohibits appellant from having contact with her mother. Spencer is concerned, like Shad, about the fact that appellant does not want to accept benefits. Appellant told Spencer that she wants to go back to work. Approximately five years ago she had been working in the cosmetology field and was self-sufficient in the community; however, she "evidently * * * decided not to take her medication, which precipitated decompensation," and then was hospitalized.

In response to a question by the trial court regarding why hospital staff think that appellant needs to go to a group home or other facility rather than directly into the community, Spencer stated:

"My clinical assessment is that [appellant] is at extreme risk of victimization. She has no plan for being able to provide for even her basic needs. She right now isn't able to infer what the negative outcomes to not being able to have money for food or even any idea of where she will go or what she will do is what concerns me.

"I recognize that people are often in the community homeless. But they're able to plan for

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