Haidar v. PSRB

129

Argued and submitted April 28, 2022, reversed and remanded February 8, 2023

MURIEL ELIZABETH HAIDAR,

Petitioner,

v.

PSYCHIATRIC SECURITY REVIEW BOARD,

Respondent.

Psychiatric Security Review Board

941304; A174806

524 P3d 986

Petitioner seeks review of an order from the Psychiatric Security Review

Board (PSRB) denying her request for discharge from PSRB jurisdiction. ORS

161.351 requires discharge where the person is no longer affected by a qualifying

mental disorder or no longer presents a substantial danger to others. Petitioner

concedes that she is affected by a qualifying mental disorder but argues that the

board’s determination that she presents a substantial danger to others is not sup-

ported by substantial evidence in the record. Held: None of the evidence cited by

the board supporting its conclusion that petitioner presented a substantial dan-

ger to others addressed petitioner’s more recent physical and mental condition,

which significantly changed in the years leading up to the PSRB hearing. Given

the significant change in her physical and mental condition, the order denying

petitioner discharge was not supported by substantial evidence.

Reversed and remanded.

Harris S. Matarazzo argued the cause and filed the brief

for petitioner.

Jona J. Maukonen, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Powers, Presiding Judge, and Hellman, Judge, and

Nakamoto, Senior Judge.

POWERS, P. J.

Reversed and remanded.

130 Haidar v. PSRB

POWERS, P. J.

Petitioner seeks review of an order from the

Psychiatric Security Review Board (PSRB) denying her

request for discharge from PSRB jurisdiction and continu-

ing her conditional release to an Enhanced Residential

Care Facility. On judicial review, petitioner argues that,

although she is affected by a qualifying mental disorder,

the board’s determination that she presents a substantial

danger to others is not supported by substantial evidence

in the record. Petitioner contends that she should therefore

be discharged from PSRB jurisdiction under ORS 161.351

(requiring discharge where “the person is no longer affected

by a qualifying mental disorder or, if so affected, no longer

presents a substantial danger to others that requires reg-

ular medical care, medication, supervision or treatment”).

For the reasons explained below, we agree with petitioner’s

argument and reverse and remand the order asserting con-

tinuing jurisdiction over her.

The underlying facts are undisputed. In January

1994, petitioner was found guilty except for insanity on two

counts of felony murder for killing her mother and sister

by setting fire to the home that the three of them shared.

Petitioner was placed at the Oregon State Hospital under

the jurisdiction of the PSRB for a maximum of 40 years. See

ORS 161.327(1)(a) (authorizing the commitment to a state

hospital of a person found guilty except for insanity of a fel-

ony, if the person is affected by a qualifying mental disorder

and presents a substantial danger to others). Petitioner was

diagnosed with paranoid schizophrenia and later, in 2007,

with dementia. In 2009, petitioner was conditionally released

to a residential care facility, Premier Living, which provides

care for petitioner in coordination with Cascadia Behavioral

Health. In 2020, both Premier Living and Cascadia sought

petitioner’s discharge from PSRB jurisdiction under ORS

161.336(5)(b) (permitting any person or agency responsible

for supervision or treatment to apply for discharge from con-

ditional release).

The state opposed discharge and, under OAR 859-

050-0055(3)(g), had the burden at a contested hearing before

the PSRB to prove by a preponderance of the evidence that

Cite as 324 Or App 129 (2023) 131

petitioner was affected by a qualifying mental disorder and

continued to present a substantial danger to others under

ORS 161.351(1).1 Two witnesses—both medical profession-

als that provided treatment to petitioner—were called to

testify, and 113 exhibits were admitted into evidence, which

included petitioner’s criminal history, hospital records, and

various health assessments. Following the hearing, PSRB

issued an order denying discharge, explaining that a pri-

mary factor in its decision was a lack of information regard-

ing where petitioner would live and what controls would be

in place if she were discharged. In concluding that petitioner

continued to present a danger to others, the order provides,

in part:

“[Petitioner], without adequate supervision and treatment,

would continue to present a substantial danger to others

as demonstrated by the underlying facts shown by the

evidence, including the expert testimony of Megan Klein,

PA, at the hearing, the circumstances surrounding the

crimes for which she was placed under the jurisdiction

of the Psychiatric Security Review Board, as well as the

information contained in Exhibit 6, her criminal history

as found in Exhibit 7, as well as the information contained

in Exhibits 4, 6, 15, 22, 27, 31, 37, 55, 56, 58, 59, 61, 73, 78

and 85.”

On review, petitioner argues that the board’s order

is not supported by substantial evidence because the tes-

timony at the hearing showed that she has experienced

significant physical and mental deterioration in recent

years, and because the order fails to explain why, given her

uncontested physical and mental decline, petitioner contin-

ues to be a danger to others. The board remonstrates that

the record contained substantial evidence to conclude that

discharging petitioner could mean removal from the highly

structured environment that PSRB jurisdiction currently

provides. Discharging petitioner, PSRB argues, would allow

1

ORS 161.351(1) provides:

“Any person placed under the jurisdiction of the Psychiatric Security

Review Board under ORS 161.315 to 161.351 shall be discharged at such

time as the board, upon a hearing, finds by a preponderance of the evidence

that the person is no longer affected by a qualifying mental disorder or, if

so affected, no longer presents a substantial danger to others that requires

regular medical care, medication, supervision or treatment.”

132 Haidar v. PSRB

petitioner to leave the facility and give her the option to dis-

continue her medications. Further, PSRB asserts that, with-

out direct care and her medication, petitioner would poten-

tially have increased symptoms of schizophrenia and pose a

risk to others.

We review the board’s order for errors of law and

substantial evidence. ORS 183.482(8)(a), (c). Disputed find-

ings are reviewed to determine whether they are supported

by the evidentiary record and whether a reasonable person,

viewing the record as a whole, could make those findings.

ORS 183.482(8)(c); Rinne v. PSRB, 297 Or App 549, 557, 443

P3d 731 (2019). In addition to substantial evidence, we also

review for substantial reason. City of Roseburg v. Roseburg

City Firefighters, 292 Or 266, 271, 639 P2d 90 (1981). That is,

PSRB is required to explain any conclusions it makes with

enough detail for us to review its reasoning. Knotts v. PSRB,

250 Or App 448, 455, 280 P3d 1030 (2012). “If the board’s

reasoning cannot be ascertained or is faulty, then the order

is not supported by substantial reason.” Id. (internal quota-

tion marks omitted).

Having reviewed the order and underlying record

in accordance with that standard, we agree with petitioner’s

argument that the board’s order is not supported by sub-

stantial evidence. In particular, we conclude that the order

fails to grapple with uncontested testimony describing peti-

tioner’s current mental and physical condition and therefore

lacks substantial evidence to support the conclusion that

petitioner presents a substantial danger given her current

condition.

We start with the testimony of Klein, a physician

assistant with Cascadia who has worked as petitioner’s psy-

chiatric prescriber for the past seven years. The board cited

her testimony as part of its reasoning for concluding that

petitioner continues to present a substantial danger to oth-

ers. Klein, however, testified that in her opinion, petitioner

does not present a substantial danger to others due to peti-

tioner’s inability to ambulate and poor memory. According

to Klein, petitioner’s physical and mental capabilities have

greatly diminished over the seven years that Klein has

worked with her, and Klein described how petitioner now

Cite as 324 Or App 129 (2023) 133

needs assistance with daily tasks like bathing, dressing,

and walking.

Regarding the board’s concerns about what would

happen to petitioner if discharged, Klein testified that peti-

tioner has a county case manager who would work in coor-

dination with Cascadia to find an appropriate dementia

care facility. Such facilities, Klein testified, are more lim-

ited while petitioner remains under PSRB jurisdiction. And

although discharge would mean that petitioner could refuse

placement at such a facility, Klein testified that petitioner

has not sought to go out on her own. In fact, petitioner is

currently free to leave Premier Living when accompanied by

staff but has chosen not to do so since 2016.

At the hearing, the board expressed concerns that

discharge from its jurisdiction could result in petitioner

refusing to take her medication, which helps control schizo-

phrenic symptoms. However, Klein testified that, despite

petitioner being unaware of what the medication is for or

why she needs it, she takes her medication voluntarily. The

medication controls petitioner’s schizophrenia, which Klein

described as “not active.” Klein acknowledged that, if dis-

charged, PSRB would no longer be able to force petitioner

to take her medications. In Klein’s time working with her,

however, petitioner has not been combative, assaultive, or

threatening, and she testified that the type of memory care

facility that Cascadia would pursue would be secure and

have staff that provide medication management.

The other witness to testify was Holden, a mental

health program manager at Premier Living, who, at the

time of the hearing, had worked with petitioner for over

two years. Like Klein, Holden testified that, in her opinion,

petitioner does not present a substantial danger to others.

Holden testified that any nursing home or facility that peti-

tioner would be transferred to if she were discharged would

have standards that monitor and prevent access to danger-

ous objects or incendiary devices. Holden agreed with Klein

that petitioner is not a person who seeks to leave the facility

where she is placed. In the past year, Holden accompanied

petitioner to the emergency department and, despite being

there for only three hours, petitioner was convinced that she

134 Haidar v. PSRB

lived there and was not able to recognize that she had been

living somewhere else prior to her visit to the emergency

department. Holden’s testimony also described the signifi-

cant staff assistance and encouragement petitioner requires

just to maintain her hygiene or change her clothes.

As early as 2018, Holden wrote a letter to the PSRB

explaining that petitioner’s dementia had advanced, that

she had not left the facility for several years, that she had

no behavioral issues, and that transfer to a nursing or hos-

pice program may be necessary. Petitioner’s PSRB status,

Holden wrote, would likely make that transfer difficult. In

2020, Holden wrote a second letter, which provided, in part,

“[Petitioner] has significant issues with her mobility and

gait. She walks slowly and holds onto the walls and rails

as available. She has significant difficulty in getting to a

standing position from lying or sitting. * * * If she were to

be discharged from PSRB, I believe she would be at very

low risk of recidivism due to her unwillingness to leave

the program, due to her mobility issues, and due to the

decreased influence of her mental illness on her current

state. I would support [petitioner] being discharged from

supervision under the Psychiatric Security Review Board.”

Although the board’s order did not reference either

letter, both letters from Holden were admitted as exhibits for

the board’s consideration. The board’s order did not specifi-

cally address Holden’s testimony either. As we understand

it, the sum of Klein’s and Holden’s testimony unequivocally

supported petitioner’s position that, due to her current men-

tal and physical condition, she does not present a substantial

danger to others. The board’s order provides no explanation

as to why Klein’s testimony was cited in favor of continuing

jurisdiction or why Holden’s testimony was not cited at all.

Finally, when viewed in the context of the entire

record, the exhibits cited by the board do not provide sub-

stantial evidence that petitioner continues to present a sub-

stantial danger to others. Importantly, those exhibits depict

petitioner before the decline of her physical and mental abili-

ties. For example, of the exhibits cited by the board’s order to

support its conclusion that petitioner presents a substantial

danger to others, the most recent was a two-page forensic

evaluation prepared in early 2015 by Dr. Mohandessi. In that

Cite as 324 Or App 129 (2023) 135

evaluation, Mohandessi concluded that petitioner’s diagno-

ses of schizophrenia and dementia “are currently active”

and that her symptoms “appear to be adequately controlled

with medications at this time[.]” He further concluded that,

when her symptoms are “not controlled, [petitioner] would

represent a danger to others.” In reaching his conclusions,

however, Mohandessi did not meet or examine petitioner in

person; rather, he based his conclusion on an evaluation of

petitioner’s records including a behavioral health assess-

ment from 2012 and a mental health assessment from 2014.

In short, because none of the exhibits cited by PSRB

address petitioner’s more recent physical and mental con-

dition, which significantly changed in the years leading up

to the PSRB hearing in 2020, we conclude that the order

lacks substantial evidence. Indeed, Klein described peti-

tioner as “frail,” testifying that “[s]he needs assistance get-

ting up from a chair” and that, when she is ambulating, she

either needs a handrail or the assistance of staff. Although

the board appeared to be concerned that petitioner have

a plan in place before her release from PSRB jurisdiction,

ORS 161.351(1) requires the board to release petitioner from

jurisdiction if she no longer presents a substantial danger

to others. Given the significant change in her physical and

mental condition, we conclude that the order denying peti-

tioner discharge is not supported by substantial evidence.

Reversed and remanded.