McCoin v. PSRB

534

Submitted March 14, 2019, affirmed April 7, 2021

CARRIE JENAY McCOIN,

aka Carrie Jenae Hale,

Petitioner,

v.

PSYCHIATRIC SECURITY REVIEW BOARD,

Respondent.

Psychiatric Security Review Board

981580; A166229

484 P3d 1085

Petitioner appeals from an order of the Psychiatric Security Review Board

(the board) rejecting her request for discharge and continuing her commitment

to the Oregon Health Authority pursuant to an order issued in 2004 placing

her within the board’s jurisdiction for a maximum period of 20 years. Petitioner

raises two assignments of error. In her first assignment, petitioner argues that

the board erred in finding that she suffers from a mental disease or defect. In her

second assignment, petitioner argues alternatively that, even if she has a mental

disease or defect, the board erred in finding that she presents a substantial dan-

ger to others. Held: The Court of Appeals concluded that there was substantial

evidence to support the board’s findings that petitioner continues to suffer from

a mental disease or defect and that she presents a substantial danger to others.

Affirmed.

Harris S. Matarazzo filed the brief for petitioner.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Joanna Hershey, Assistant Attorney

General, filed the brief for respondent.

Before DeVore, Presiding Judge, and Aoyagi, Judge, and

Barron, Senior Judge.

BARRON, S. J.

Affirmed.

Cite as 310 Or App 534 (2021) 535

BARRON, S. J.

Petitioner seeks judicial review from an order of the

Psychiatric Security Review Board (the board) rejecting her

request for discharge and continuing her commitment to

the Oregon Health Authority pursuant to an order issued in

2004 placing her within the board’s jurisdiction for a maxi-

mum period of 20 years. Petitioner raises two assignments

of error. In her first assignment, petitioner argues that the

board erred in finding that she suffers from a mental dis-

ease or defect. In her second assignment, petitioner argues

alternatively that, even if she has a mental disease or defect,

the board erred in finding that she presents a substantial

danger to others. We conclude that there is substantial evi-

dence in support of the board’s findings that petitioner con-

tinues to suffer from a mental disease or defect and that she

presents a substantial danger to others, and we therefore

affirm.

We review the board’s findings to determine whether

they are supported by substantial evidence, i.e., for whether

a reasonable person, viewing the record as a whole, could

make the findings. ORS 183.482(8)(c). In doing so, we do not

make our own findings or reweigh the evidence; rather, we

ascertain, viewing the record in its entirety, whether the

board could reasonably make the findings that it did. Knotts

v. PSRB, 250 Or App 448, 454-55, 280 P3d 1030 (2012). We

review the board’s legal conclusions for errors of law and

to determine whether they logically flow from the board’s

factual findings. Id. “If the board’s reasoning cannot be

ascertained or is faulty, then the order is not supported by

substantial reason.” Id. at 455 (internal quotation marks

omitted).

The underlying relevant facts are undisputed.

In February 1998, petitioner was found guilty except for

insanity of unauthorized use of a vehicle, ORS 164.135; fel-

ony driving while revoked, ORS 811.182; and theft in the

third degree, ORS 164.043, and placed under the board’s

jurisdiction for five years. Subsequent to her commitment,

petitioner was conditionally released and readmitted to the

Oregon State Hospital (OSH) on multiple occasions after

experiencing relapses of her mental illness.

536 McCoin v. PSRB

After the board’s jurisdiction expired in January

2003, petitioner was discharged from OSH. In May 2003,

petitioner reoffended and subsequently pleaded guilty except

for insanity to two counts of assault in the second degree,

ORS 163.175, and one count of burglary in the first degree,

ORS 164.225. The trial court sentenced her to a maximum

of 20 years under the board’s jurisdiction, and OSH read-

mitted her in July 2004.

After her readmission to OSH in 2004, petitioner

was conditionally released in 2007, 2010, and 2013, and read-

mitted each time after a relapse. Petitioner seeks review of

the board’s most recent order rejecting her request for dis-

charge pursuant to ORS 161.341(3), which provides, in part:

“Any person who has been committed to a state hospi-

tal * * * for custody, care and treatment under ORS 161.315

to 161.351 * * * may apply to the board for an order of dis-

charge or conditional release upon the grounds:

“(a) That the person is no longer affected by a qualify-

ing mental disorder;[1]

“(b) That the person, if so affected, no longer presents

a substantial danger to others; or

“(c) That the person continues to be affected by a qual-

ifying mental disorder and would continue to be a danger

to others without treatment, but that the person can be

adequately controlled and given proper care and treatment

if placed on conditional release.” 2

At the hearing before the board, petitioner had

the burden to prove by a preponderance of the evidence

that she qualifies for discharge or conditional release. ORS

161.341(4).3 We address first the record with regard to

1

There is no dispute that petitioner’s diagnosed Bipolar I disorder is a qual-

ifying mental disorder.

2

Petitioner requested, in the alternative, at her hearing that she be granted

a conditional release. She does not seek review of the board’s denial of her request

for a conditional release.

3

ORS 161.341(4) provides:

“When application [for discharge or conditional release] is made under

subsection (3) of this section, the board shall require that a report from the

superintendent of the hospital * * * be prepared and transmitted as provided

in subsection (1) of this section. The applicant must prove by a preponderance

of the evidence the applicant’s fitness for discharge or conditional release

Cite as 310 Or App 534 (2021) 537

petitioner’s first assignment, in which she contends that she

no longer suffers from a mental disease.

Petitioner called as a witness Dr. Hamilton, a

psychiatrist. Hamilton discussed petitioner’s diagnosis of

Bipolar I in the following exchange with petitioner’s counsel:

“Q Is she taking or being prescribed any medication

for a mental disease or defect?

“A No.

“Q And when if ever did she last take any such

medication?

“A She last took medication I want to say was

September of 2016.

“Q Okay. And what is her current diagnosis?

“A It is still listed as Bipolar 1. She has a personal-

ity disorder, methamphetamine use disorder that’s been

severe but is in sustained remission given her hospitaliza-

tion. She has a history of alcohol use disorder as well as

marijuana use disorder.

“Q How did you arrive at the conclusion that she has a

Bipolar 1 disorder?

“A Well, she came to me with that diagnosis. I have

subsequently in preparation for this hearing I reviewed all

seventeen volumes of her chart. And as of right now my

opinion as to her diagnosis of bipolar is somewhat up in the

air.

“Q Okay. So you’re unable to say whether or not at this

time that she has a—has a bipolar disorder?

“A Conclusively. That’s correct.

“Q What was the purpose of the medication my client

had been prescribed until early September 2016?

“A It was for mood stabilization.

“Q Okay. And since that time has she experienced any

relapse of her—of a bipolar disorder?

under the standards of subsection (3) of this section, unless more than two

years has passed since the state had the burden of proof on that issue * * *.”

It has been less than two years since the state had the burden of proof.

538 McCoin v. PSRB

“A No.

“Q In your opinion is that clinically significant?

“A A year is a decent amount of time, but I wouldn’t

say that it is a long enough time to conclusively come to the

decision that she does not have a bipolar disorder.

“Q Okay. But my question is is it clinically significant

that she’s been without medication for a year and has not

been symptomatic?

“* * * * *

“A So I would say no, it’s not clinically significant.

“Q So the absence of medication for a year to treat a

bipolar disorder in terms of arriving at a diagnostic conclu-

sion that’s something you wouldn’t consider arriving at a

diagnostic conclusion?

“A Not after a year, no.

“* * * * *

“Q An individual with a bipolar disorder off medica-

tion for ye[ar]—can individuals with a bipolar disorder not

receiving medication experience a relapse in less than a

year?

“A Of course.

“* * * * *

“Q Okay. So you would agree that a year’s a pretty

good—good period of time to be symptom free without

medication?

“A It’s a good amount of time but not conclusive of tak-

ing away that diagnosis.”

(Emphasis added.) Hamilton also described petitioner’s long

history of a bipolar disorder, including petitioner’s acknowl-

edgment of having had factors in her life, such as child

abuse, that can lead to a bipolar disorder, and having bipo-

lar symptoms when she was not using substances. Hamilton

opined that it would be two years before she could say that

petitioner’s bipolar disorder was no longer present.

In concluding that petitioner continues to suffer

from bipolar disorder, the board relied on Hamilton’s opinion

Cite as 310 Or App 534 (2021) 539

and cited other reports, including Exhibit 315, a report by a

treatment provider who had been asked to determine if peti-

tioner was eligible for conditional release. In opining that

petitioner should not be conditionally released, the report

noted petitioner’s risk factors:

“• Major mental illness, chronic and treatment

resistance

“• Not currently prescribed psychiatric medications

“• History of medication non-compliance

“• Comorbid substance use history, namely metham-

phetamine and marijuana

“• History of tense relationships with treatment

providers

“• History of absconding from conditional release

“• Denial of mental illness, instant offenses, and sub-

stance abuse issues

“• Relationships with those using substances.”4

In her first assignment of error, petitioner contends

that the evidence presented at the hearing does not support

the board’s findings and its conclusion that she continues

to have a mental disease or defect. The state contends that

there is substantial evidence to support the board’s find-

ings. We agree with the state that the evidence is sufficient.

We note once again that our job is to determine if there is

substantial evidence to support the board’s findings and if

the board’s conclusion logically follows from those findings.

Knotts, 250 Or App at 454-55. It is possible that some of the

evidence in the record could be interpreted to support peti-

tioner’s view that her bipolar disorder has resolved. But the

board was not required to accept petitioner’s interpretation

4

Petitioner complains that the board’s order merely recites exhibit numbers

without identifying page numbers and without stating its reasoning in relation

to the exhibits. Petitioner argues that this practice requires her and the court to

comb through the exhibits to find the basis for the board’s decision and, as such,

hinders meaningful review. She cites no prejudice to her in this case and does not

raise it as error, but petitioner’s complaint is well-founded. It would be easier to

ascertain the board’s reasoning if the board cited the page numbers of the exhib-

its on which it relies, as it did regarding Hamilton’s testimony in its order finding

that petitioner did suffer from a mental disease or defect.

540 McCoin v. PSRB

of the evidence. See Einstein v. PSRB, 330 Or 121, 131,

998 P2d 654 (2000) (Van Hoomissen, J., concurring) (“[The

board] is entitled to find that petitioner’s evidence is unper-

suasive. If [the board] was not persuaded that petitioner

in this case had sustained his burden of proof, then it was

entitled to deny his application for discharge on that ground

alone * * *.”). We conclude that there is substantial evidence

to support the board’s findings, and that its conclusion that

petitioner suffers from a mental disease or defect logically

follows from those findings.

ORS 161.341(3)(b) provides that a person may be

discharged from the board’s jurisdiction even if the person

has a mental disease or defect, if that person “no longer

presents a substantial danger to others.” ORS 161.351(2)

provides, in part:

“A person whose qualifying mental disorder may, with rea-

sonable medical probability, occasionally become active

and when it becomes active will render the person a danger

to others may not be discharged.”

In her second assignment of error, petitioner contends that

the board erred in determining that she may not be dis-

charged because she is a substantial danger to others. As

with her first assignment of error, petitioner had the burden

of proving by a preponderance of the evidence that she is not

a substantial danger to others even if she does have a men-

tal disease of defect.

In finding that petitioner presents a substantial

danger to others, the board again relied on the testimony of

Hamilton:

“Q When she is experiencing symptoms of mania or

psychosis is she a substantial danger to others?

“A I would say yes.”5

5

Although Hamilton did not state her opinion in terms of medical probabil-

ity as provided for in ORS 161.151(2), “magic words” are not required as long as

the expert’s opinion establishes that it is based on probability. Hudjohn v. S&G

Machinery Co., 200 Or App 340, 352-53, 114 P3d 1141 (2005) (internal quotation

marks omitted). In considering the record as a whole, Hamilton’s opinion meets

the standard established by ORS 161.151(2).

Cite as 310 Or App 534 (2021) 541

At the time of the hearing, Hamilton had reviewed

the 17 volumes of petitioner’s chart and knew that peti-

tioner’s crimes of convictions involved refusing to leave an

elderly man’s home upon his request and then attacking

him with a piece of wood and a piece of a lamp which was

metal. Hamilton also knew that on one of petitioner’s con-

ditional leaves she had threatened to beat a fellow resident

with a baseball bat. That evidence is “probative as to a per-

son’s present mental condition.” Rolfe v. Psychiatric Security

Review Board, 53 Or App 941, 947, 633 P2d 846, rev den, 292

Or 334 (1981).

In a report written previously, Hamilton wrote, “[I]t

is my medical opinion, that [petitioner] has a mental disease

or defect, which when active, makes her a substantial dan-

ger to others.” An OSH psychiatrist shared Hamilton’s opin-

ion. The record supports the board’s findings and conclusion

that petitioner is a substantial danger to others when her

mental disease or defect is active. The board therefore did

not err in rejecting petitioner’s request for discharge.

Affirmed.