From the Portland Tribune, December 30 2020

The Oregon Court of Appeals upheld a Washington County ruling regarding the lack of speedy admissions to the hospital for those unfit to stand trial.

The Oregon Court of Appeals has upheld a 2019 ruling that found the state psychiatric Hospital in contempt for failing to quickly admit incarcerated persons found unfit to stand trial.

READ – Oregon Court of Appeals, State of Oregon v. Carlos Zamora-Skaar, OPINION 12/30/2020

Since 2002, a federal order has required the Oregon State Hospital to admit patients within seven days in cases where a trial court has issued a commitment order, but OSH “routinely violated” that rule hundreds of times, according to an investigation by The Oregonian last year.

The appeals decision, published Dec. 30, has some in the legal establishment hoping it will spur lawmakers to act.

“If the legislature keeps ignoring these violations, and doesn’t fully fund the state hospital, they are now opening themselves and state agencies up to a whole bunch of liabilities,” said defense attorney Amanda Thibeault. “My real hope is that the legislature cares enough about mentally ill people to properly fund the state hospital.”

Thibeault represented Carlos Zamora-Skaar, who faced a felony burglary charge relating to a Beaverton apartment break-in in December 2018. Washington County Judge Charles D. Bailey ordered an evaluation of Zamora-Skaar’s mental fitness the following January, but by April that still hadn’t happened, OPB reported at the time.

Judge Bailey ordered the Oregon Health Authority, which runs the hospital, to pay a $100 fine for each day a defendant remained behind bars past the seven-day deadline. Public health authorities then appealed the ruling — to no avail.

“OSH defended against the contempt allegation based on an affirmative defense of inability to comply with the seven-day timeline, given its view that admitting more patients … would compromise patient treatment and put patients and OSH staff at risk,” according to the appeals court decision.

Hospital administrators say they have ample reason not to fill every bed at the imposing institution in Salem, such as maintaining capacity for emergencies. The hospital halted all admissions earlier this month, citing an outbreak of COVID-19 that has infected at least 24 patients and 71 workers.

The capacity of the Oregon State Hospital is at present just 671 beds spread across two campuses and offering three levels of care, said Hospital Relations Director Rebeka Gipson-King.

“This does not include beds held for managed capacity — keeping one bed open on each unit for safety and treatment purposes, the two closed units on the Junction City Campus that we do not have funding to operate and beds we need for COVID-19 protocols,” she said in a statement.

Zamora-Skaar’s case has been settled — he was eventually transported to the state hospital, where his mental health recuperated; he was then found fit for trial, and later pleaded guilty. Attorney Laura Graser argued the appellate case.

Thibeault says she’s pleasantly surprised to see Judge Bailey’s finding of contempt to be upheld and understands the reality of the hospital’s struggle with COVID. And yet: “There’s always going to be another justification that state agencies can come up with for violating our clients’ statutory and constitutional rights,” she said. “It takes a lot for one government branch to say that another governmental agency could be held accountable.”

The state hospital’s seven-day admission rule is based on Oregon Advocacy Center v. Mink, which was adjudicated in Oregon federal court and upheld by the Ninth Circuit. It applies only to commitment orders known as a .370, of which there is a current and ongoing backlog.

The delay of .370 orders could lead to contempt motions in courts across Oregon unless OHA appeals the ruling to the state Supreme Court. Administrators did not reveal their intentions in response to written questions.

“Even through the pandemic, we have continued to work diligently to make sure people who need hospital-level care are admitted to Oregon State Hospital. We are disappointed the decision does not recognize the hospital’s capacity challenges — challenges that have only been exacerbated by the pandemic. Our priority must be keeping our patients and staff healthy and safe,” said Gipson-King.

She continued: “We must maintain our focus on decriminalizing mental illness and homelessness. Going forward, we will continue partnering with counties and local courts to ensure every person in Oregon who needs mental health care has timely access to treatment in their own community or, when necessary, at the state hospital.”

Appeals Court: Oregon State Hospital leaders disobeyed court orders

Posted in the Salem Statesman Journal, 12/30/2020, from reporting earlier in The Oregonian (see below)

PORTLAND, Ore. (AP) — The Oregon Court of Appeals has affirmed that Oregon State Hospital leaders “willfully” violated court orders when they did not promptly admit a criminal defendant with severe mental illness for treatment so he could help in his legal defense.

A three-judge panel on Wednesday unanimously upheld a 2019 lower court ruling declaring the state psychiatric hospital in contempt of court, The Oregonian/OregonLive reported. The contempt ruling came for forcing Carlos Zamora-Skarr to stay in the county jail for over six weeks as his mental state deteriorated.

Under a 2002 federal court order, Oregon must admit defendants within seven days who are deemed unable to aid and assist in their own defense.

Zamora-Skarr was jailed in November 2018 on burglary charges. His attorney petitioned the court to have him treated, writing that he was “undergoing as severe a mental health crisis as a person could ever undergo.”

Despite repeated court orders and inquiries starting in March 2019, state hospital officials said they couldn’t admit him because the hospital did not have room.

But judges noted the hospital had more than a dozen empty beds in its aid-and-assist units.

In the Appeals Court ruling, Judge Erika Hadlock wrote about the legal meanings of “willfully” and “inability to comply,” as state hospital officials argued they lacked the money and staffing needed to admit more patients.

Hadlock wrote that officials voluntarily left Zamora-Skaar in the county jail.

Hospital Relations Director Rebeka Gipson-King said Wednesday that hospital officials are disappointed by the decision because they feel they have been working so hard to serve patients well.

“Even through the pandemic, we have continued to work diligently to make sure people who need hospital-level care are admitted,” she said. “The decision does not recognize the hospital’s capacity challenges.”

Oregon State Hospital leaders willfully disobeyed court orders, Appeals Court affirms

Published in the Oregonian December 30, 2020

The Oregon Court of Appeals affirmed Wednesday that Oregon State Hospital leaders “willfully” violated court orders when they did not promptly admit a criminal defendant with severe mental illness for treatment so he could aid in his own legal defense.

A three-judge panel unanimously upheld a June 2019 lower court ruling declaring the state psychiatric hospital in contempt of court for forcing the Washington County man, Carlos Zamora-Skarr, then 26, to stay locked in the county jail for more than six weeks as his mental state deteriorated.

Under a 2002 federal court order, Oregon must admit any defendants within seven days who are deemed unable to aid and assist in their own defense.

Zamora-Skarr was arrested and jailed in November 2018 on charges he burglarized a home. The next month, his attorney petitioned the court to have him treated, writing that he was “undergoing as severe a mental health crisis as a person could ever undergo” and was completely out of touch with reality, including not knowing who he was.

Despite repeated court orders and inquiries beginning in March 2019, state hospital officials said they could not admit him because the hospital did not have room.

But judges noted in their rulings, the hospital had more than a dozen empty beds in its aid-and-assist units. Officials chose, however, not to fill them because having some empty beds improves staff and patient safety and raises the quality of care for patients who have been admitted.

In the Appeals Court ruling, Judge Erika Hadlock wrote at considerable length about the legal meanings of “willfully” and “inability to comply,” as state hospital officials argued they lacked the money and staffing needed to admit more patients. They noted that they requested millions from the Legislature to expand but were denied.

Hadlock, who retired from the court last year and was serving in a pro tem role, wrote for herself and Appeals Judges Joel DeVore and Roger DeHoog that officials voluntarily left Zamora-Skaar in the county jail.

The hospital “could have admitted defendant to the hospital given existing facilities and the uncontested fact that dozens of hospital beds were unoccupied at the time,” she wrote.

Hospital Relations Director Rebeka Gipson-King said Wednesday that hospital officials are disappointed by the decision because they feel they have been working so hard to serve patients well. “Even through the pandemic, we have continued to work diligently to make sure people who need hospital-level care are admitted,” she said. “The decision does not recognize the hospital’s capacity challenges.”

“We must maintain our focus on decriminalizing mental illness and homelessness,” she said. “Going forward, we will continue partnering with counties and local courts to ensure every person in Oregon who needs mental health care has timely access to treatment in their own community or, when necessary, at the state hospital.”

In summer 2019, after the lower court ruling finding the state in contempt, the hospital came back into compliance and admitted all defendants it was ordered to treat within seven days, Gipson-King said.

Coronavirus changed that, at least temporarily. “We were able to maintain this compliance until March 2020, when we had to temporarily halt admissions while we set up our protective, admissions monitoring and quarantine units,” she said.

As of this month, the hospital is once again admitting defendants in need of treatment to aid in their legal defense in an expeditious manner, she said. The only pauses in admission are when the hospital experiences a COVID-19 outbreak, as it is right now. The hospital experienced another outbreak of COVID-19 at the Salem campus, with 12 patients and two staff members testing positive for the coronavirus, officials confirmed Wednesday.

The hospital can serve up to 671 people at its Salem and Junction City locations, using its 758 licensed beds, Gipson-King said. In addition to treating patients preparing for trial, it also treats defendants found guilty except for insanity and people found by a court to be an imminent danger to themselves or others.

Since 2012, Oregon has seen a skyrocketing caseload of defendants in need of hospital-level treatment to assist in their defense. According to testimony referenced in the ruling, the average daily population of such patients was 109 in 2012 and had increased to 264 by the time of the 2019 contempt hearing, with 53 defendants waiting for admission. And that was before coronavirus created extra staffing headaches for the state psychiatric hospital’s leaders.

The Oregonian/OregonLive reported this month that more than 100 hospital employees were out on coronavirus-related leave every day in November and December after outbreaks of the virus among patients and staff. In all, at least 71 employees and 24 patients have tested positive for COVID-19.

The hospital now admits patients in groups of about 20 patients, all of whom are admitted on the same week to be treated in the same pod, Gipson-King said. They are tested and monitored for three weeks to make sure no one has or develops the virus.