# Mesch v. Unity Center for Behavioral Health

> Court of Appeals of Oregon · May 13, 2026 · 349 Or. App. 463

URL: https://www.frixlaw.com/law-library/cases/11325596

## Case

- **Court:** Court of Appeals of Oregon
- **Decided:** May 13, 2026
- **Citations:** 349 Or. App. 463
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Powers
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11325596

## Opinion text

No. 403 May 13, 2026 463

IN THE COURT OF APPEALS OF THE
STATE OF OREGON

Estate of Jacob Latif Mesch,
by and through its Personal Representative
Leila Hotaki MESCH,
Plaintiff-Appellant,
v.
UNITY CENTER FOR BEHAVIORAL HEALTH,
abn for Legacy Emanuel Hospital & Health Center;
Legacy Emanuel Hospital & Health Center; Legacy Health;
Oregon Health and Science University;
and Oregon Health & Science University Medical Group,
Defendants-Respondents.
Multnomah County Circuit Court
21CV01558; A179040

Robert Durham, Judge.
Argued and submitted May 29, 2024.
Nadia H. Dahab argued the cause for appellant. Also
on the briefs was Sugerman Dahab. On the reply brief was
John M. Coletti and Paulson Coletti Trial Attorneys PC.
Janet M. Schroer argued the cause for respondents Unity
Center for Behavioral Health, abn for Legacy Emanuel
Hospital & Health Center, Legacy Emanuel Hospital & Health
Center, and Legacy Health. Also on the brief were Hillary A.
Taylor, Hart Wagner LLP and Keating Jones Hughes PC.
Jay W. Beattie argued the cause for respondents Oregon
Health and Science University and Oregon Health & Science
University Medical Group. Also on the brief was Katie M.
Eichner and Lindsay Hart, LLP.
Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
POWERS, J.
Affirmed.
Hellman, J., dissenting.
464 Mesch v. Unity Center for Behavioral Health
Cite as 349 Or App 463 (2026) 465

POWERS, J.
In this wrongful death action, plaintiff, who is the
mother and personal representative of the decedent, J, appeals
from a judgment entered for defendants on her claims of neg-
ligence. This case arises out of the tragic death of J, who after
contemplating jumping from a bridge, had been taken to the
psychiatric emergency room at Unity Center for Behavioral
Health (Unity). About 10 hours later, Unity allowed J to leave
at his request after determining that he did not meet the
detention criteria for an involuntary hold, and two days later,
he shot himself and died. Plaintiff asserted negligence claims
on behalf of J and against defendants, which include Unity,
Legacy Emanuel Hospital & Health Center, which operates
Unity, and Oregon Health and Science University and Oregon
Health & Science University Medical Group, which provide
medical staff for Unity. The trial court granted summary
judgment to defendants on the ground that ORS 426.335(5)
immunized them from liability on plaintiff’s claims.
Plaintiff challenges that ruling on appeal, asserting
that ORS 426.335(5) does not apply to decisions to not detain
a person, that genuine issues of material fact preclude sum-
mary judgment, and that Article I, section 10, of the Oregon
Constitution bars application of ORS 426.335(5) in this case.
As explained below, we construe ORS 426.335(5) and con-
clude that a decision—whether to detain or not to detain a
person—based on the detention criteria in ORS 426.232 is
an action that ORS 426.335(5) covers, and that the phrase
“good faith, on probable cause” is a standard of honest, sub-
jective belief, based on substantial, objective evidence that
more likely than not the person does, or does not, meet the
detention criteria. Applying that construction to this case,
we conclude that defendants did establish as a matter of
law on uncontroverted evidence that ORS 426.335(5) immu-
nizes them from plaintiff’s claims. Finally, we conclude
that Article I, section 10, does not bar application of ORS
426.335(5) here. Accordingly, we affirm.
I. BACKGROUND
Because this case is on review following the trial
court’s grant of summary judgment to defendants, we
review for errors of law and “will affirm if there are no
466 Mesch v. Unity Center for Behavioral Health

genuine disputes about any material fact and the moving
party is entitled to judgment as a matter of law.” Thompson
v. Portland Adventist Medical Center, 309 Or App 118, 121,
482 P3d 805 (2021). In determining whether a moving party
is entitled to summary judgment, “[w]e view the record
that was before the trial court in the light most favorable
to plaintiff as the party opposing summary judgment, and
we ‘examine whether no objectively reasonable juror could
find in [plaintiff’s] favor on the question at issue.’ ” Hofer v.
OHSU, 328 Or App 352, 357-58, 536 P3d 989 (2023) (quoting
Beneficial Oregon, Inc. v. Bivins, 313 Or App 275, 277, 496
P3d 1104 (2021)). Here, because defendants would have had
the burden to establish their defense of statutory immunity
at trial, see, e.g., Franke v. Oregon Dept. of Fish and Wildlife,
166 Or App 660, 666, 2 P3d 921 (2000), “our task on appeal,
as circumscribed by our standard of review, is to determine
whether the uncontroverted evidence presented by defen-
dant[s] in support of [their] motion for summary judgment
is such that all reasonable factfinders would have to find
in defendant[s’] favor[.]” Wieck v. Hostetter, 274 Or App 457,
470, 362 P3d 254 (2015).
The record on summary judgment in this matter
is fairly extensive and consists of declarations, depositions,
and medical records. We summarize below the most perti-
nent facts from that evidence, which were uncontroverted.
J, who was 18 years old and a recent high school
graduate, had become increasingly angry, irritated, and
withdrawn over the summer. He had briefly attended ther-
apy for behavioral issues at school but stopped going before
summer. Around 2:00 a.m. on September 2nd, J had been
drinking and was with friends in a rideshare car when he
became upset, jumped out of the car, and ran off. J’s friends
went to plaintiff’s house and told J’s father what had hap-
pened. At the same time, plaintiff texted J. J called plaintiff,
asking her to pick him up from the top deck of the Fremont
Bridge. Plaintiff found J standing beyond the railing near
its outer edge; he was limping and barefoot when he got in
the car. J said that he called a crisis hotline twice while on
the bridge but was put on hold. J agreed to have plaintiff
take him to Unity.
Cite as 349 Or App 463 (2026) 467

J and plaintiff arrived at Unity at 2:19 a.m. At that
time, J refused to sign a consent for treatment but agreed to
see a doctor and went to the treatment area willingly. J was
also posturing and swearing.
J first met with Loy, who was a triage nurse, Wright,
who was a Crisis Intervention Specialist (CIS), and Dr. Do.
Security was also present. Loy asked J triage questions and
used the Columbia Suicide Severity Rating Scale, which
is one of the tools used in developing a suicide risk assess-
ment. J was triggered by the presence of security—he was
hostile, verbally aggressive, pounded the floor, and refused
to answer questions, except to deny that he was suicidal or
homicidal and demanding to leave. Loy believed J was being
deceptive when he denied being suicidal.
Do got permission from J to speak with plaintiff.
Plaintiff told Do that J called her while he was on the bridge
with a plan to jump, and that she learned that J had had a
few drinks. She reported that she was not aware of J having
prior psychiatric history or suicidal thoughts, but that he
had been depressed since April. Do told her that they were
going to keep J and conduct a formal evaluation. A couple of
hours later, J called her and asked her to pick him up, but
she encouraged him to stay.
Do then tried to meet with J again but he would not
engage. Do moved J to a room out of the triage area because
he continued to be oppositional. He also ordered medications
for J, including Ativan for anxiety or to reduce mild agita-
tion, and Zyprexa for agitation. However, Do did not think
either were given to J. Do assessed J as having depression
and suicidal ideation, reporting that J was “at elevated risk
of suicidal behavior while in the psychiatric emergency ser-
vice due to uncooperative behavior.” He recommended reas-
sessment for suicidality after J had a period of sobriety and
to consider admission if he continued to show an imminent
danger.
Wright then met with J alone, sometime before
4:47 a.m., and J was able to engage with her. J told Wright
that he had been depressed since April, was hiding and
lying about it, and was glad to stop lying. J was tearful when
468 Mesch v. Unity Center for Behavioral Health

speaking about recent stressful events of his breakup with
his girlfriend and having learned she kissed his friend. J
reported that he was afraid to take medicine because his
father had a negative experience with it, that he had prior
negative experiences with therapy and stopped going, that
he did not get along with his father, and that he does not
do well with authority figures. J was unable to safety plan
with Wright and reported that he was still feeling suicidal
but was willing to stay until he felt better. J also told Wright
that, when he was on the side of the bridge, he was think-
ing about jumping, but he was afraid of heights and was not
going to jump. Wright told J that he could not leave Unity
until he was stable, feeling better, and had a safety plan
in place, which would consider treatment and medications.
Wright reported that J was aggressive and provocative when
he felt vulnerable and scared and responded more positively
to having choices and feeling in control. J also had a sprained
ankle and bruises on his right knuckles from hitting a wall.
Wright spoke with J again shortly after 7:30 a.m.
before she was leaving. J had not slept and was anxious to
leave but he was not agitated and was agreeable to talk to
the next team about outpatient treatment and medication. In
her deposition, Wright agreed that J taking steps to jump off
a bridge, which would have been lethal, increases the severity
of the risk of suicide. She also agreed that it could make a dif-
ference in assessing a patient whether they self-interrupted a
suicide attempt or it was interrupted by another person.
After a shift change in the morning, J’s team
included Dr. Bereiter, CIS Keepers, and a nurse, Kavanaugh.
Do communicated to the team that J came in agitated and
uncooperative, but he had a good conversation with Wright.
Do thought it likely that at least part of J’s behavior was due
to intoxication.
Kavanaugh met with J around 8:00 a.m. for an initial
assessment. J requested a discharge, and she told him that
he had a high level of risk for suicidal ideation, that he needed
a safety plan before he could leave, and that he needed to be
patient with the process. A short time later, J was cooperative
with Kavanaugh when she returned. He reported feeling a lot
better after some time to think and decompress, and that he
Cite as 349 Or App 463 (2026) 469

was looking forward to starting college. He denied current
suicidal or homicidal ideation. He also reported that he called
plaintiff. Kavanaugh reported that J appeared ambivalent
about engaging in community-based services.
Sometime before 10:00 a.m., Keepers and Bereiter
evaluated J. Keepers reported that J wanted to be dis-
charged and was pleasant, cooperative, and engaged in the
interview and was open to starting therapy and interested
in medication. J reported struggling with suicidal thoughts
all his life, but never made a suicide attempt until he was
close to jumping off the bridge. J stated that his actions on
the bridge were related to feeling betrayed and alcohol use.
J also identified that he had really good friends he could talk
to and that he was close to plaintiff, and he was looking for-
ward to starting college. Keepers recognized that there was
a change in J’s behavior in a short amount of time. However,
Keepers did not believe that J was deceiving them.
Bereiter and Keepers discussed with J why he did
not want inpatient treatment and determined that J com-
municated an understandable reason that the institutional
setting made him feel on edge and that it would not help.
They discussed intensive outpatient treatment as an option
and discussed possible barriers to treatment, and deter-
mined that that option was a good one for J. J agreed to
that recommendation. Bereiter discussed antidepressants
with J, and thought J’s reason for refusing to take them at
Unity was sound. Bereiter had informed J that there were
different types of antidepressants, so even if J’s father had
side effects to one kind, there were other options. J had not
been aware of that and was willing to take it, but would
rather wait until he started the intensive outpatient treat-
ment. Bereiter thought J was sincere in the conversations
about wanting treatment.
Around 10:00 a.m., Kavanaugh reported that, while
talking to Keepers, J became anxious and knocked on the
window of the provider room and stated, “he wanted to leave,
was being held against his will and threatened with a hos-
pital hold last night if he did not cooperate.” She explained
to J that, if he could not keep himself safe and refrain from
470 Mesch v. Unity Center for Behavioral Health

threatening others, it would be difficult to allow him to leave
as it would not be safe.
Keepers also conducted safety planning with J. He
reported that J was able to create a safety plan, including
identifying his triggers for feeling suicidal and listing peo-
ple he can call for help, and that J no longer presented an
imminent risk to self or others. J understood he could return
to Unity if needed. While planning, J was restless and did
some push-ups.
Keepers and Bereiter discussed everything in detail,
and they determined that J’s acute phase of suicidality had
passed and that he was not at imminent risk of danger to
self or others, and he credibly agreed to a reasonable safety
plan that included a high level of outpatient care. Bereiter
agreed that J started at Unity as a high risk for suicide,
but several protective factors he displayed had started to
lower that risk, including opening up to Wright and in his
interview with Bereiter and Keepers, calling the crisis line
while on the bridge and persisting in asking for help by then
calling plaintiff, agreeing to go to Unity, his reported close
relationship with plaintiff, and desire to address his issues
with his father. Keepers testified that “if we believed that he
was lying to us to get out of the hospital or was actually at
imminent risk of harm to self or others, we could have and
would have placed him on a Notice of Mental Illness Hold.”
Keepers contacted plaintiff and told her in detail
about the safety plan and told her that starting the inten-
sive outpatient program the next morning was a reasonable
option for J. Keepers advised her to call the county crisis
line if J refused treatment or disappeared and discussed
how to identify warning signs and keep J safe. Plaintiff told
Keepers that she would make sure her car was available for
J to get to outpatient treatment the next morning.
Kavanaugh’s last interaction with J was at around
noon when she walked J to the lobby to meet plaintiff.
She reviewed the plan with J and plaintiff, and she gave
J the follow-up referral for intensive outpatient treatment.
Kavanaugh agreed with the decision to allow J to leave at
that time; if she had not thought it was safe to do, she would
Cite as 349 Or App 463 (2026) 471

not have discharged him. She was not, however, part of the
team in charge of that decision.
Both Keepers and Bereiter submitted declarations
that each had concluded that J did not meet the criteria for
an involuntary psychiatric hold and that their assessments,
evaluations, and conclusions about J were made in good
faith and without malice.
When plaintiff picked up J, she thought he was “not
normal,” in that he had a blank look and was not making
eye contact. J reported that he did not get much sleep and
was agitated from the medication that they gave him and
wanted to go home. Plaintiff took J home, and he slept for
the rest of the day. After J woke up, he told plaintiff he was
not going to outpatient treatment the next morning but
agreed to make an appointment with his pediatrician. The
following day J stayed at home in his room.
The next morning, on September 4th, J left the
house without talking to plaintiff. Plaintiff and J exchanged
texts during the day, including J asking her for his social
security number so he could replace his lost driver’s license.
That afternoon, J texted several people and called his par-
ents to say goodbye. J killed himself in a parking lot using
a firearm that he had purchased with his newly replaced
driver’s license.
Plaintiff, as the personal representative of J’s
estate, sued defendants for wrongful death, alleging four
specifications of negligence that led to J’s death:
“(a) In failing to adequately assess the severity of [J’s] sui-
cidal ideation;
“(b) In discharging [J] following an interrupted suicide
attempt approximately 10 hours after admitting him for
supervision and treatment;
“(c) In failing to adequately assess the severity of [J’s]
suicidal ideation in addition to long term stressors prior to
discharge; and
“(d) In failing to commit [J] to in-patient treatment so as
to better evaluate the severity of [J’s] psychological condi-
tion and confirm that it was safe to discharge him.”
472 Mesch v. Unity Center for Behavioral Health

Defendants moved for summary judgment, arguing
that ORS 426.335(5) barred plaintiff’s claims as a matter
of law because it immunized defendants from those claims.
The trial court agreed, granted defendants’ motion for sum-
mary judgment, and entered a general judgment dismiss-
ing plaintiff’s claims. Plaintiff timely appeals from that
judgment.
II. ANALYSIS
On appeal, plaintiff makes three distinct arguments
in support of her assignment of error challenging the trial
court’s grant of summary judgment: (1) ORS 426.335(5), by
its terms, does not apply to a practitioner’s decision to not
detain a person and not approve them for emergency care;
(2) genuine issues of material fact exist that foreclose sum-
mary judgment; and (3) the remedy clause of Article I, sec-
tion 10, forecloses application of ORS 426.335(5). We address
each of those contentions in turn.
A. Does the immunity in ORS 426.335(5) apply to a decision
to not detain a person?
To address plaintiff’s argument that ORS 426.335(5)
does not apply here, we must construe the terms of that stat-
ute to determine the legislature’s intent. To do so, we apply
our familiar methodology of considering the text of the stat-
ute in context, along with any legislative history that we
determine is useful to our analysis. State v. Gaines, 346 Or
160, 171-72, 206 P3d 1042 (2009).
We start with the text, which is “the best indica-
tor of legislative intent.” Oregon Trucking Assns. v. Dept. of
Transportation, 364 Or 210, 220, 432 P3d 1080 (2019). ORS
426.335(5) provides:
“The following limitations on liability are applicable
to actions and proceedings within this chapter and ORS
430.397 to 430.401:
“* * * * *
“(5) A licensed independent practitioner, hospital or
judge may not be held criminally or civilly liable for actions
pursuant to ORS 426.228, 426.231, 426.232, 426.234 or
426.235 if the licensed independent practitioner, hospital
Cite as 349 Or App 463 (2026) 473

or judge acts in good faith, on probable cause and without
malice.”
The relevant statutes that defendants could have
been acting “pursuant to” in this case are ORS 426.232 and
ORS 426.234, which we set out in some detail for context.
First, ORS 426.232 provides:
“(1) If a licensed independent practitioner believes a
person who is brought to a hospital or nonhospital facility
by a peace officer under ORS 426.228 or by an individual
authorized under ORS 426.233, or believes a person who is
at a hospital or nonhospital facility, is a danger to self or
others and is in need of emergency care or treatment for
mental illness, and the licensed independent practitioner is
not related to the person by blood or marriage, the licensed
independent practitioner may do one of the following:
“(a) Detain the person and cause the person to be
admitted or, if the person is already admitted, cause the
person to be retained in a hospital where the licensed inde-
pendent practitioner has admitting privileges or is on staff.
“(b) Approve the person for emergency care or treat-
ment at a nonhospital facility approved by the authority.
“(2) When approving a person for emergency care or
treatment at a nonhospital facility under this section, the
licensed independent practitioner shall notify immedi-
ately the community mental health program director in
the county where the person was taken into custody and
maintain the person, if the person is being held at a hospi-
tal, for as long as is feasible given the needs of the person
for mental or physical health or safety. However, under no
circumstances may the person be held for longer than five
judicial days.”
The involuntary detention and admission in a hospital
under ORS 426.232(1) is also referred to as a “hospital hold.”
See OAR 309-033-0210(30) (defining “hospital hold” as “the
notice of mental illness submitted to the court pursuant to
ORS 426.232(1) by one licensed independent practitioner
* * * and by which a person is physically detained in the com-
munity hospital”).
Second, ORS 426.234 sets out what must occur
when a person is involuntarily detained at a hospital or
474 Mesch v. Unity Center for Behavioral Health

nonhospital facility under ORS 426.232 or ORS 426.233. In
describing the various requirements that a licensed indepen-
dent practitioner must do, the statute specifically provides:
“If, at any time prior to the hearing under ORS 426.070
to 426.170, the licensed independent practitioner responsi-
ble for a person admitted or retained under ORS 426.232
determines that the person is not a danger to self or others
and is not in need of emergency care or treatment for mental
illness, the licensed independent practitioner may release
the person from the detention authorized by ORS 426.232.
The licensed independent practitioner shall immediately
notify the circuit court notified under this subsection and
the community mental health program director of the per-
son’s release from detention.”
ORS 426.234(2)(c).
On appeal, plaintiff argues that ORS 426.335(5)
does not cover a practitioner’s decision to not detain a per-
son and to decline to approve the person for emergency care,
because neither ORS 426.232 nor ORS 426.234 list as an
action a decision to release a person prior to initiating a hos-
pital hold. Plaintiff asserts that her reading is the correct
one because the requirement that a practitioner have “prob-
able cause” makes sense only when the action taken is to
deprive a person of their liberty. Plaintiff also asserts that
legislative history supports her reading of the statute.
Defendants respond that ORS 426.232 contem-
plates both detaining a person or not detaining a person,
depending on if the person meets the hospital hold crite-
ria. Defendants also point to ORS 426.234(2)(c) and ORS
426.228, both of which are provisions covered by the immu-
nity in ORS 426.335(5) and both of which address release of a
person if they do not meet the detention criteria. Defendants
also offer legislative history to support their position.
The parties’ arguments require us to not only look
at ORS 426.335(5) but also to examine ORS 426.232, and, if
necessary, ORS 426.234. In making their respective argu-
ments, the parties agree on the meaning of the term “pur-
suant to.” We also agree with the parties that “pursuant to”
in ORS 426.335(5) means “in conformance to or agreement
with.” Webster’s Third New Int’l Dictionary 1878 (unabridged
Cite as 349 Or App 463 (2026) 475

ed 2002); see also Jones v. Douglas County, 247 Or App
81, 93, 270 P3d 278 (2011) (explaining that “ ‘pursuant to’
means ‘[i]n compliance with; in accordance with; under’ or
‘[a]s authorized by; under’ ” (quoting Black’s Law Dictionary
1272 (8th ed 2004)). In addition, “action,” as most relevant
here, is “a thing done : deed” and in its plural form, actions,
is “: behavior, conduct.” Webster’s at 21. The parties disagree
about whether a practitioner’s decision to not detain a per-
son, who is requesting to leave, based on a failure to meet
the criteria in ORS 426.232 falls within “actions pursuant
to” ORS 426.232, such that immunity under ORS 426.335(5)
applies.1 We conclude that it is.
Under ORS 426.232(1), a practitioner may either
detain a person or cause a person to be retained at a hospital
only if the practitioner “believes a person who is at a hospi-
tal or nonhospital facility, is a danger to self or others and is
in need of emergency care or treatment for mental illness.”
Because the person may be detained only if the criteria are
met, the statute necessarily contemplates that the person
will not be detained if the practitioner does not believe that
the person meets the criteria. That legislative intent is con-
firmed by the operation of both ORS 426.234(2)(c) and ORS
426.228(4).
First, ORS 426.234(2)(c) provides that, after deten-
tion and before a hearing, if the practitioner believes that
the person no longer meets the criteria, the practitioner
“may release the person from the detention authorized by
ORS 426.232.” Second, ORS 426.228(4), provides that, when
a peace officer takes a person into custody and delivers the
person to a facility,
“the licensed independent practitioner shall proceed under
ORS 426.232, otherwise the person may not be retained in
custody. If the person is to be released from custody, the
peace officer or the community mental health program
1
We note that plaintiff has not alleged that defendants failed to take any
action at all under the criteria ORS 426.232. Cf. Scovill v. City of Astoria, 324
Or 159, 168, 921 P2d 1312 (1996) (holding that, where the police took no action
when a visibly intoxicated person left in their care walked out of the police sta-
tion, the failure to take action under former ORS 426.460(1) (1993), renumbered
ORS 430.399 (1995), did not come within the immunity provision of former ORS
426.470 (1993), renumbered ORS 430.401 (1995)). Rather, plaintiff alleges that
defendants were negligent in their evaluation of and decision to not detain J.
476 Mesch v. Unity Center for Behavioral Health

director shall return the person to the place where the per-
son was taken into custody * * *.”2
Thus, looking at relevant context within the larger statu-
tory framework, both ORS 426.234(2)(c) and ORS 426.228(4)
confirm that ORS 426.232 necessarily contemplates two
paths—detaining the person if the person meets the crite-
ria or not detaining the person if the person does not meet
the criteria.
A practitioner evaluating a person to determine
whether that person is a danger to self or others and is in
need of emergency care or treatment is an action pursuant to
ORS 426.232, because without first making that determina-
tion, a practitioner is not permitted to take any other action
listed in ORS 426.232. In other words, it does not make log-
ical sense that the initiating action of evaluating whether a
person meets the detention criteria in ORS 426.232 could
not be an action in conformance or in compliance with ORS
426.232, when that evaluation is the condition precedent
to the authority to deprive a person of their liberty based
on ORS 426.232. When we read a statute to effectuate the
plain language used by the legislature, that is not merely an
idea that leads to the consultation of dictionaries for indi-
vidual words. It is an idea that, when we read a statute, we
apply a plain understanding of how any person reading the
statute would understand the statute to operate based on
the words used. See, e.g., State v. Gonzalez-Valenzuela, 358
Or 451, 461-62, 365 P3d 116 (2015) (explaining that “a stat-
ute’s plain meaning is frequently more than the sum of its
individually defined terms”).3

2
Contrary to the dissent’s view, ORS 426.228(4) and ORS 426.234(2)(c) do
not demonstrate that the legislature intended that ORS 426.232 would not cover
“release” decisions. See 349 Or App at 491 (Hellman, J., dissenting). As used in
those statutes, “release” means a release from custody. A decision not to invol-
untarily hold someone who does not meet the criteria in ORS 426.232 is not a
“release,” as such, and adding the term release to that statute would not make
sense within the statutory framework. However, those statutes do confirm that
a person may not be detained if the person does not meet the detention criteria.
That is, those statutes confirm that ORS 426.232 necessarily contemplates two
different paths depending on if the practitioner believes the person meets the
detention criteria or not.
3
In recognizing the importance of critically examining how particular defi-
nitions of words and phrases fit into the context of the statutory framework, the
court explained:
Cite as 349 Or App 463 (2026) 477

Here, we conclude that applying that plain mean-
ing approach requires us to conclude that a practitioner
evaluating whether a person meets the detention criteria in
ORS 426.232(1) is an action “pursuant to” that statute. We
disagree with the dissenting opinion that “actions pursu-
ant to” ORS 426.232 can be a reference to only the precise
“action” words used in ORS 426.232, when none of those
actions are statutorily permissible without first taking the
action of evaluating whether a person meets the detention
criteria. Cf. Deming v. Mt. Hood Community Mental Health
Center, 128 Or App 164, 875 P2d 484, rev den, 320 Or 131
(1994) (rejecting the plaintiff’s argument that former ORS
426.280(2) (2001), renumbered ORS 426.335(2) (2003), immu-
nized only the act of conducting the investigation and did
not immunize the consequences of negligence in performing
the evaluation).4
We also are not persuaded by plaintiff’s assertion
that the legislature did not intend for ORS 426.335(5) to
extend to the decision to not detain a person based on the
requirement that the practitioner act on probable cause.
First, the immunity requirement that the practitioner “act[ ]
in good faith, on probable cause” does not suggest that the
legislature intended that decisions to not detain are not
covered. Rather, it suggests only that whatever the action
taken pursuant to the listed statutes must be made in good

“[A] statute’s plain meaning is frequently more than the sum of its individu-
ally defined terms. Dictionary definitions lack context and often fail to cap-
ture the nuanced connotations conveyed by the normal use of a term in a par-
ticular context. Those more nuanced connotations may represent the plain
meaning of a term in context even though those connotations result from
tacit knowledge, accumulated experience, and common sense that are not
reflected well—if at all—in dictionary definitions. As a result, dictionaries
are only the starting point for our textual analysis and should not be used as
the ending point.”
Gonzalez-Valenzuela, 358 Or 461-62 (internal quotation marks and citations
omitted).
4
In rejecting the plaintiff’s argument that asserted a narrow reading of the
immunity provided by former ORS 426.280(2) (2001), we explained:
“No purpose would be served by providing immunity in ORS 426.280(2) only
for the precise act that other provisions of the statutes require to be per-
formed. Immunity for that act inheres in the statutory mandate. The only
plausible reason for the separate immunity provision is to insulate the conse-
quences of the required act, rather than the act itself.”
Deming, 128 Or App at 168.
478 Mesch v. Unity Center for Behavioral Health

faith and on probable cause. We would have to read into the
text of ORS 426.335(5) that “actions pursuant to” the listed
statutes include only those actions that directly restrain a
person’s liberty to read that statute as plaintiff requests.
The insertion of that concept would be contrary to the leg-
islature’s apparent intent of immunizing conduct under the
entire framework covered by the listed statutes, because
those listed statutes specifically set out actions to which we
also would not typically apply the concept of probable cause.
See, e.g., ORS 426.228 (requiring a peace officer “prepare a
written report and deliver it” to the practitioner treating the
person taken into custody, if transport will take longer than
hour “obtain, if possible, a certificate” from a practitioner,
“return” a person released from custody, because they could
not be retained under ORS 426.232, to the place they were
taken into custody); ORS 426.231 (requiring a practitioner
that holds a person for transportation to a facility to “pre-
pare a written statement” that supports the transport); ORS
426.234 (requiring a practitioner to “inform” a person on a
hold of their rights, to examine the person, and “[s]et forth,
in writing” the person’s condition; requiring the practitioner
to “contact” the community mental health program direc-
tor and “notify” the circuit court); ORS 426.235 (permitting
transfer of a person in custody when the person’s treating
practitioner agrees to the transfer). The use of the term
probable cause in ORS 426.335(5) is not determinative of
the types of actions that the limitation of liability covers,
and we will not read into ORS 425.335(5) a narrowing of
the meaning of the word “actions” to only those actions that
restrain a person’s liberty, when “actions” otherwise broadly
means “a thing done” or “conduct.” Webster’s at 21; see also,
e.g., ORS 174.010 (explaining that, in construing a statute,
a court is “not to insert what has been omitted, or to omit
what has been inserted”).
Second, applying immunity to both possible out-
comes—viz., a decision to detain or a decision to not detain—
from a practitioner applying the detention criteria in ORS
426.232 is in harmony with the legislature’s intention to
strike an appropriate balance in the civil commitment stat-
utes between the need for involuntary commitment and
the liberty interest of the mentally ill, because applying
Cite as 349 Or App 463 (2026) 479

immunity only to a decision to detain a person would have
the effect of encouraging practitioners to err on the side of
detention. See, e.g., State v. J. W. H., 202 Or App 526, 534,
123 P3d 370 (2005) (recognizing the tension between pro-
tecting personal liberty and the provision of medical help to
persons with mental illness). That one-sided incentive does
not further the legislative intention to strike an appropri-
ate balance. In light of the legislature’s intention in creating
a civil commitment process that begins with an informed
determination of whether a person is a danger to self or oth-
ers and in need of emergency care, the legislature would not
have intended for the limitation on liability to flow in only
one direction such that the availability of that liability lim-
itation would become part of the decision-making process
whether to detain a person.
We have reviewed the legislative history offered by
the parties and it does not alter our view of the text and
context of ORS 426.335(5). See Gaines, 346 Or at 172 (clari-
fying that “a party seeking to overcome seemingly plain and
unambiguous text with legislative history has a difficult task
before it”). Accordingly, we conclude that ORS 426.335(5)
covers both the act of detaining and not detaining a person
pursuant to the criteria provided in ORS 426.232(1).
B. Did defendants establish ORS 426.335(5) immunity as a
matter of law?
1. The legal standard set by ORS 426.335(5).
Having determined that ORS 426.335(5) does apply
to a decision to not detain made pursuant to ORS 426.232,
we turn to plaintiff’s assertion that defendants did not
establish that they were entitled to summary judgment.
Again, that statute provides that a practitioner or hospi-
tal cannot be held criminally or civilly liable for actions
pursuant to ORS 426.232 if the practitioner or hospital
“acts in good faith, on probable cause and without malice.”
ORS 426.335(5). Plaintiff argues that defendants did not
establish as a matter of law either “good faith” or “proba-
ble cause.”5 Because plaintiff’s arguments raise issues of

5
Plaintiff does not assert that any defendant acted with malice. Thus, we do
not address that requirement.
480 Mesch v. Unity Center for Behavioral Health

statutory interpretation as to the meaning of those terms,
we first construe ORS 426.335(5) using our methodology
under Gaines before turning to whether the record supports
the trial court’s grant of summary judgment to defendants.
Both parties agree that “probable cause,” based
on our case law, should be defined by analogy to ORS
131.005(11), which defines “probable cause” for the criminal
code as “a substantial objective basis for believing that more
likely than not an offense has been committed and a person
to be arrested has committed it.” In State v. Smith, 71 Or
App 205, 211, 692 P2d 120 (1984), we applied that definition
by analogy to the term “probable cause” in ORS 426.070(3)
and concluded that it meant “a substantial objective basis
for believing that more likely than not a person is mentally
ill.”
We are not aware of any reason why we should not
apply the reasoning in Smith to ORS 426.335(5). The use of
the term probable cause by the legislature throughout ORS
chapter 426, but without separately defining that term for
ORS chapter 426, suggests that the legislature intended
that the well-established meaning of probable cause, which
is reflected in the criminal code definition, would apply to
the civil commitment statutory framework. Because the text
of ORS 426.335(5) refers to actions taken pursuant to the
listed statutes as the acts that need to be based on probable
cause, the precise contours of the probable cause definition
must be grounded in the act at issue in the particular case.
As it applies here then, probable cause is a substantial objec-
tive basis for believing that more likely than not the person
did not meet the criteria for detention under ORS 426.232.
Again, by analogy, we review for legal error whether the
facts known to the practitioners at the time of their decision
establish probable cause. See State v. Husk, 288 Or App 737,
739, 407 P3d 932, rev den, 362 Or 665 (2017) (explaining
that whether the facts establish probable cause for a traffic
stop is a question of law reviewed for legal error).
Turning to “good faith,” in the briefing, plaintiff
asserted that “good faith” in ORS 426.335(5) included an
objective component, while defendants asserted it was only a
subjective standard of “good faith belief.” At oral argument,
Cite as 349 Or App 463 (2026) 481

however, plaintiff conceded that “good faith” is a subjective
standard. We agree with the parties that it is a subjective,
state of mind standard.
“Good faith” is not defined for purposes of ORS
chapter 426, and we thus start by examining its common,
ordinary meaning, using guidance from dictionaries in use
at time. See State v. Perry, 336 Or 49, 53, 77 P3d 313 (2003)
(explaining that in interpreting words of a statute enacted
many years ago, a court “may seek guidance from dictio-
naries that were in use at the time”); see also Comcast Corp.
v. Dept. of Rev., 356 Or 282, 296 n 7, 337 P3d 768 (2014)
(observing that, notwithstanding the frequency with which
the Supreme Court cites modern editions of Webster’s to
determine the plain meaning of statutory terms, “[i]n con-
sulting dictionaries, * * * it is important to use sources con-
temporaneous with the enactment of the statute”). But see
State v. James, 266 Or App 660, 667 n 3, 338 P3d 782 (2014)
(explaining that “[b]ecause the content of Webster’s—exclud-
ing the addenda section—has remained static since 1961, in
general, it is appropriate to treat it as a contemporaneous
source for statutes dating from at least that point forward”).
The limitation of liability in relation to involuntary hospi-
talization for mental illness was first enacted in 1969. Or
Laws 1969, ch 371, § 1 (enacting former ORS 426.175 (1991),
repealed by Or Laws 1993, ch 484 § 27, which included the
liability limitation for physicians and hospitals, “provided
he acts in good faith, on probable cause and without mal-
ice”). At that time, Webster’s defined “good faith,” as relevant
here, as “a state of mind indicating honesty and lawfulness
of purpose : * * * belief that one’s conduct is not unconscion-
able or that known circumstances do not require further
investigation * * *.” Webster’s Third New Int’l Dictionary 978
(unabridged ed 1961). Accord Black’s Law Dictionary 822
(4th ed rev 1968) (defining “good faith,” in relevant part, as
“[h]onesty of intention, and freedom from knowledge of cir-
cumstances which ought to put the holder upon inquiry”).
That definition suggests that good faith is a subjective stan-
dard, because it is a “state of mind” based in “honesty” and
a “belief” that conduct is not unconscionable or that circum-
stances do not require further investigation.
482 Mesch v. Unity Center for Behavioral Health

In addition, as we have discussed above, the leg-
islature intended to impose a “substantial objective basis”
requirement through its reference to “probable cause.”
Although good faith can have an objective component in
certain contexts, see Klamath Off-Project Water Users, Inc.
v. PacifiCorp, 237 Or App 434, 445-46, 240 P3d 94 (2010),
rev den, 349 Or 602 (2011) (discussing the common-law
duty of good faith and fair dealing inherent in contracts),
it seems unlikely that “good faith,” as used in this context,
would also include an objective standard in addition to the
objective standard of probable cause. Thus, we conclude that
“good faith,” as used in ORS 426.335(5), raises an issue of
fact. See, e.g., Mouktabis v. Oregon City Police Dept., 337 Or
App 226, 563 P3d 1003 (2025) (addressing good faith for pur-
poses of peace officer immunity statute for arrests).
Putting that all together, “in good faith, on probable
cause” is a standard requiring a subjective, state of mind of
an honest and lawful purpose, based on substantial, objec-
tive evidence that the person more likely than not did, or
did not, meet the criteria in ORS 426.232.6 Good faith is a
question of fact, while probable cause is a question of law
that is evaluated based on the totality of the facts known to
the practitioner at the time the decision was made. Thus, in
this case, the question is not whether defendants’ evaluation
of J fell below a standard of care. The question is whether
defendants, in good faith, determined that, at the time of
the evaluation, there was a substantial objective basis for
believing that J, more likely than not, was not a danger to
self or others and in need of emergency treatment.
2. Application of the legal standard set by ORS
426.335(5).
Having addressed the meaning of “acts in good
faith, on probable cause,” we turn to whether defendants
established that they met that standard as a matter of law
on uncontroverted evidence.
6
Although we are not bound by any federal court’s interpretation of an
Oregon statute, Burley v. Clackamas County, 298 Or App 462, 467, 446 P3d 564,
rev den, 365 Or 721 (2019), our conclusion is in alignment with how the United
States District Court for the District of Oregon has interpreted ORS 426.335(5),
when it rejected an identical argument raised by the plaintiff in Cederberg v.
Legacy Health, 2020 WL 5809991, *4-5, (D Or Sept 28, 2020).
Cite as 349 Or App 463 (2026) 483

Plaintiff’s argument that a genuine issue of mate-
rial fact exists, defeating summary judgment, is primarily
based on the following: (1) defendants did not act in good
faith because they had information—including that J had
a history of suicidal ideation, a history of noncompliance
with treatment, a recent suicide attempt on the bridge, and
had aggressive behavior and incredibly denied suicidality
when he first arrived—that J, if released, would be a dan-
ger to himself or others and needed emergency treatment;
and (2) defendants lacked probable cause because there was
not a substantial objective basis on which to conclude that J
was no longer a danger and in need of emergency treatment
because J’s behavior was a sudden change that occurred
after he was told what he needed to do to be allowed to leave,
suggesting J was deceptive and not credible.
Defendants respond that both Keepers and Bereiter
provided articulable, good faith reasons why J did not meet
the detention criteria under ORS 426.232. Defendants also
assert that plaintiff presented no evidence on summary
judgment that refuted the practitioners’ articulated good
faith. As to probable cause, defendants argue that, under
the totality of the circumstances, defendants had a substan-
tial objective basis on which to believe more likely than not
that J did not meet the criteria in ORS 426.232.
We primarily consider the following in our evalu-
ation. When J arrived at Unity he was aggressive, unable
to engage with the providers, and denied any suicidality.
However, J’s behavior changed when he was no longer con-
fronted with security and had time to calm down. In his
meeting with Wright, which was sometime before 4:47 a.m.,
he was able to talk about how he ended up at Unity and
identify stressors and triggers and agreed to consider out-
patient treatment and to stay voluntarily overnight. Around
7:00 a.m., Do informed Keepers and Bereiter about J’s prior
behavior but also stated that J had a good talk with Wright
and some of his behavior was likely due to intoxication. When
J met with Keepers and Bereiter, he was able to engage and
talk about his stressors and triggers. J also identified people
in his life he could reach out to for help. Keepers and Bereiter
both testified that they found J to be credible, reasonable,
484 Mesch v. Unity Center for Behavioral Health

and sincere when he met with them and in his agreement
to intensive outpatient treatment. They also determined
that his acute suicidality had passed. Bereiter articulated
several protective behaviors that J exhibited that lowered
his suicide risk level, including his trying to call the crisis
line when he was on the bridge and persisting with seeking
help when he called plaintiff, his opening up with Wright,
his opening up to Keepers and Bereiter, his ability to safety
plan, and his looking forward to college.
Plaintiff did not submit evidence that controverted
any of defendants’ evidence. Instead, plaintiff points to facts
that she argues should have caused defendants to inquire
further or to not believe that J was sincere. On this record,
we are unpersuaded by that argument. Although after calm-
ing down, J continued to display restlessness and, at times,
loudly insisted that he be discharged, those behaviors alone
do not raise a genuine issue of material fact that Keepers
and Bereiter were not acting in good faith and on probable
cause. And, although J reported long-term suicidal ideation,
he also reported that he never before attempted suicide
and stated that his actions on the bridge were due to feel-
ing betrayed and alcohol use—an acute situation. Plaintiff
also reported to Do that J did not have any prior psychiatric
issues or suicide attempts. Keepers and Bereiter articulated
concrete facts that supported their good faith belief that J
did not meet the criteria for involuntary detention because
his acute suicidality had passed, he could appropriately
safety plan, and they thought J’s agreement to treatment
and medication was sincere.
In sum, on this record, defendants did establish
that the uncontroverted evidence presented by defendants
“is such that all reasonable factfinders would have to find in
defendant[s’] favor” on good faith. Wieck, 274 Or App at 470.
We also conclude that, under the totality of the cir-
cumstances based on the uncontroverted evidence, defen-
dants established, as a matter of law, that their good faith
decision to not involuntarily detain J was based on probable
cause. Husk, 288 Or App at 739 (addressing probable cause).
Plaintiff’s argument is essentially that a practitioner could
have weighed the facts differently, not believed J’s change
Cite as 349 Or App 463 (2026) 485

in behavior as credible, and determined that J did meet the
criteria for involuntary detention. That argument, however,
does not raise an issue of fact. The facts in this record are
uncontroverted, including that Keepers and Bereiter found
J to be credible and sincere. As a result, the only question
before us is if the uncontroverted evidence of what Keepers
and Bereiter knew provides a substantial, objective basis for
their decision to not involuntarily detain J because he did
not meet the criteria in ORS 426.232. We conclude that, on
this record, the evidence does establish probable cause as a
matter of law.
C. Does Article I, section 10, bar application of ORS
426.335(5)?
In her remaining argument, plaintiff argues that
applying ORS 426.335(5) in this case unconstitutionally
limits plaintiff’s right to a remedy under Article I, section
10, under the analysis set out in Horton v. OHSU, 359 Or
168, 376 P3d 998 (2016).
The remedy clause in Article I, section 10, provides
that “every man shall have a remedy by due course of law
for injury done him in his person, property, or reputation.”
The Supreme Court has explained that the analysis under
Article I, section 10, “focuses on the state of the common
law at the time that the statute in question was enacted,
not when the constitution was adopted.” Bonner v. American
Golf Corporation of California, Inc., 372 Or 814, 821, 558
P3d 812 (2024) (citing Horton, 359 Or at 180). In Horton, the
court identified three general categories of legislation that it
had confronted when applying Article I, section 10:
“First, when the legislature has not altered a duty but has
denied a person injured as a result of a breach of that duty
any remedy, our cases have held that the complete denial of
a remedy violates the remedy clause. * * *
“Second, the court has recognized that the reasons for
the legislature’s actions can matter. For example, when
the legislature has sought to adjust a person’s rights and
remedies as part of a larger statutory scheme that extends
benefits to some while limiting benefits to others, we have
considered that quid pro quo in determining whether
the reduced benefit that the legislature has provided an
486 Mesch v. Unity Center for Behavioral Health

individual plaintiff is ‘substantial’ in light of the overall
statutory scheme. * * *
“Third, the legislature has modified common-law duties
and, on occasion, has eliminated common-law causes of
action when the premises underlying those duties and
causes of action have changed. In those instances, what
has mattered in determining the constitutionality of the
legislature’s action is the reason for the legislative change
measured against the extent to which the legislature has
departed from the common law.”
Horton, 359 Or at 219-20. The court explained that, “in
deciding whether the legislature’s actions impair a person’s
right to a remedy under Article I, section 10, we must con-
sider the extent to which the legislature has departed from
the common-law model measured against its reasons for
doing so.” Horton, 359 Or at 220; see also Crandall v. State of
Oregon, 374 Or 699, 704-14, 584 P3d 1197 (2026) (discussing
Horton and post-Horton Article I, section 10, cases).
Here, plaintiff asserts that, at the time the legisla-
ture first enacted the immunity law, the common law recog-
nized a cause of action and remedy for the alleged malprac-
tice of mental health providers. Plaintiff argues that ORS
426.335(5) does not alter the common-law duty owed, but
limits or eliminates the remedy for a breach of that duty,
and, thus, is prohibited by Article I, section 10, because it
was not enacted as part of a quid pro quo.
We disagree with plaintiff’s argument. ORS
426.335(5) was enacted as part of a comprehensive statutory
framework that addresses the involuntary civil commitment
of persons with a mental illness. Here, defendants evaluated
J under the criteria in ORS 426.232 and determined that
he did not meet that criteria and could not be involuntarily
detained at the hospital. Contrary to plaintiff’s argument,
plaintiff’s complaint is not premised on common-law negli-
gent provision of mental health care; it is premised on defen-
dants’ alleged negligent failure to detain J involuntarily—or
against his will—for mental health treatment. We are not
aware of any common-law duty of hospitals or practitioners
to hold a person against their will for the provision of mental
Cite as 349 Or App 463 (2026) 487

health treatment, and plaintiff points to none.7 As a result,
the premise of plaintiff’s complaint is necessarily based on
the civil commitment statutes, because that is the source
of authority for defendants to detain a person against their
will for mental health treatment.
The comprehensive civil commitment framework
seeks to balance the liberty interest of persons with mental
illness with the interest of the state in providing treatment
to those persons. See J. W. H., 202 Or App at 534. As part
of that comprehensive framework, ORS 426.335(5) sets out
the limits on liability of the institutions, peace officers, men-
tal health practitioners, and judges that must determine
whether a person meets the criteria for involuntary civil
commitment. In that limitation of liability, the legislature
set out the duty owed to persons with mental illness when
the covered institutions and persons act pursuant to the
identified civil commitment statutes, viz., the action must
be in good faith, on probable cause, and without malice. At
least as it applies here, because the legislature created the
source of authority for hospitals to detain persons against
their will for mental health treatment, the legislature could
also set out the limits of liability that attaches in exercising
that authority, without running afoul of the Article I, sec-
tion 10, remedy clause. See also Estate of James Ritchie v.
Helbig, 347 Or App 37, 46, 586 P3d 428 (2026) (concluding
that “given that wrongful death actions are not cognizable
under the common law, the statutory quid pro quo creat-
ing such a cause of action, and the history of limitations on
damages recoverable in wrongful death cases, ORS 31.710(1)
does not violate Article I, section 10”).
Beyond arguing that ORS 426.335(5) is not part of
a comprehensive statutory quid pro quo, plaintiff’s argu-
ments do not provide us with any basis on which to conclude
that application of ORS 426.335(5) to this case is barred by
7
Plaintiff does point to Gardner v. OHSU, 299 Or App 280, 450 P3d 558
(2019), which involved a wrongful death negligence action brought against men-
tal health practitioners after an outpatient completed suicide. That case held
that comparative fault applied in such cases and that the defendants had alleged
a viable defense of comparative fault. We do not think that case is applicable
here, where plaintiff’s complaint is premised on defendants’ negligent failure to
involuntarily detain J under the civil commitment statutes and not based on
outpatient treatment of J.
488 Mesch v. Unity Center for Behavioral Health

Article I, section 10. Accordingly, we decline to conduct any
further analysis and reject plaintiff’s Article I, section 10,
argument.
In sum, based on the foregoing, the trial court did
not err in granting summary judgment to defendants based
on ORS 426.335(5).
Affirmed.
HELLMAN, J., dissenting.
I respectfully dissent. When defendants allowed J
to leave Unity on September 2, 2019, they were not acting
“pursuant to” ORS 426.232(1)(a), which by its terms applies
only to decisions to “detain,” “admit[ ],” or “retain[ ]” a per-
son in a hospital. As a result, defendants are not entitled to
immunity under ORS 426.335(5), which provides immunity
only for “actions pursuant to” ORS 426.232.1
When tasked with interpreting a statute, our “par-
amount goal” is to “discern[ ] the legislature’s intent.” State
v. Gaines, 346 Or 160, 171, 206 P3d 1042 (2009); see also
ORS 174.020(1)(a) (“In the construction of a statute, a court
shall pursue the intention of the legislature if possible.”). To
accomplish that goal, we begin by examining the text and
context of the statutes at issue because “there is no more
persuasive evidence of the intent of the legislature than the
words by which the legislature undertook to give expres-
sion to its wishes.” Gaines, 346 Or at 171 (internal quotation
marks omitted).
Following that framework, I start with the text of
the two statutes at issue in this case: ORS 426.335(5) and
ORS 426.232(1). ORS 426.335(5) provides:
“A licensed independent practitioner, hospital or judge may
not be held criminally or civilly liable for actions pursu-
ant to ORS 426.228, 426.231, 426.232, 426.234 or 426.235
if the licensed independent practitioner, hospital or judge
acts in good faith, on probable cause and without malice.”
And ORS 426.232(1) provides:
1
ORS 426.335(5) references four other statutes; however, none of those
statutes possibly apply to defendants’ actions in this case. I therefore focus my
analysis on ORS 426.232.
Cite as 349 Or App 463 (2026) 489

“If a licensed independent practitioner believes a per-
son who is brought to a hospital or nonhospital facility
by a peace officer under ORS 426.228 or by an individual
authorized under ORS 426.233, or believes a person who is
at a hospital or nonhospital facility, is a danger to self or
others and is in need of emergency care or treatment for
mental illness, and the licensed independent practitioner is
not related to the person by blood or marriage, the licensed
independent practitioner may do one of the following:

“(a) Detain the person and cause the person to be
admitted or, if the person is already admitted, cause the
person to be retained in a hospital where the licensed inde-
pendent practitioner has admitting privileges or is on staff.

“(b) Approve the person for emergency care or treat-
ment at a nonhospital facility approved by the authority.”2

By its terms, ORS 426.232(1) authorizes the fol-
lowing actions: detaining a person, causing a person to be
admitted, or retaining a person in a hospital. As applicable
to this case, those actions may be taken by a “licensed inde-
pendent practitioner” who “believes a person who is brought
to a hospital or nonhospital facility * * * is a danger to self
or others and is in need of emergency care or treatment for
mental illness.” Because the decisions to detain, admit, or
retain a person at a hospital interfere with that person’s per-
sonal liberty, the licensed independent practitioner would be
unable to take those actions without authorization. In other
words, ORS 426.232(1) gives authority to act where none
previously existed.
Notably, the text of the statute says nothing about
a decision not to detain, admit, or retain—in other words,
a decision to release, discharge, or allow to leave.3 That is
2
Neither party asserts that subsection (b) applies in this case, so I do not
address it in my analysis.
3
The medical terms used in this litigation do not precisely correlate with
the statutory framework that defendants seek to invoke, which creates some
confusion for the legal analysis. Specifically, J arrived voluntarily at Unity’s
Psychiatric Emergency Service (PES) with his mother; however, the record indi-
cates that the PES is a locked unit, and persons who are “triaged” there are not
permitted to leave without an evaluation. At that point, J was thus “triaged” at
Unity PES, but apparently, the triage was the not equivalent of an admission
under ORS 426.232, because the parties agree that Unity never admitted Jacob.
That creates confusion, however, because the decision to allow J to leave Unity is
490 Mesch v. Unity Center for Behavioral Health

unremarkable. I am unaware that any statutory authority
is needed for a licensed independent practitioner to permit
a person to exercise their personal liberty to leave a hospi-
tal or nonhospital facility, and neither the parties nor the
majority point to one. The text of ORS 426.232(1) thus refers
only to affirmative actions that deprive a person of their per-
sonal liberty—detention, retention, or admission to a hospi-
tal or nonhospital facility.
I disagree with the majority that ORS 426.232(1)(a)
can be read to cover both decisions to detain and not to
detain. I specifically find no textual support for the major-
ity’s conclusion that “a practitioner evaluating whether a
person meets the detention criteria in ORS 426.232(1) is an
action ‘pursuant to’ that statute.” 349 Or App at 477.
To reach that decision the majority relies on three
propositions. First, the majority concludes that we would
have to insert terms into ORS 426.232 to read it in the way
that plaintiff suggests. Id. at 477-78. But the majority does
not indicate what those terms are. Indeed, it is the major-
ity’s interpretation that would require the insertion of a
term like “release” at the end of the list of possible actions, a
phrase such as “not to” before the list of possible actions, or a
subsection governing decisions “not to hold,” where no such
term, phrase, or subsection appears in the text.
Moreover, the primary issue with that part of the
majority’s opinion is that it immunizes the evaluation pro-
cess itself when the evaluation is not mentioned in ORS
426.232. It may be that an evaluation is a “condition prece-
dent” to a hold. 349 Or App at 476. But whatever statutory
authority authorizes an evaluation, it is not ORS 426.232,
because that statute does not mention evaluations.4 Thus,
an evaluation is not an action “pursuant to” ORS 426.232
and is not covered by immunity. I disagree that we can read
an immunity statute as broadly as the majority suggests.

characterized as a “discharge,” which usually follows an admission. In the end,
however, the imprecision in terms does not affect my legal analysis.
4
By contrast, ORS 426.228(4) specifically imposes a duty on practitioners to
evaluate a person that a peace officer brings to a facility, which further suggests
that the legislature is aware of the opportunity to explicitly reference evaluations
when they choose to do so.
Cite as 349 Or App 463 (2026) 491

Immunity is an exception to liability that prevents the abil-
ity to seek redress for governmental harm. It is just as rea-
sonable to think that under the “plain meaning approach,”
349 Or App at 476-77, a person would expect that whatever
governmental actions are covered by immunity would be
clearly expressed in the statute.
Second, the majority relies on the statutory context,
specifically ORS 426.234 and ORS 426.228, to conclude that
decisions not to hold are immunized. However, in my view,
that statutory context undercuts the majority’s conclusion
for the simple reason that both statutes explicitly discuss
decisions to release someone, whereas ORS 426.232 con-
tains no mention of release decisions, or decisions not to hold
someone. ORS 426.228(4) (providing that a person who is
not “in need of emergency care or treatment * * * may not be
retained in custody” and “is to be released * * * to the place
where the person was taken into custody”); ORS 426.234
(providing that a practitioner “may release” a person from
detention if, prior to a hearing, the practitioner determines
that person “is not a danger to self or others and is not in
need of emergency care”). It is not clear to me how other stat-
utes in the same statutory scheme which explicitly address
release permit a conclusion that ORS 426.232—which does
not mention release or a decision not to hold—necessarily
governs both decisions to detain and not to detain. Indeed,
we frequently draw the opposition conclusion in applying our
standard methodology of statutory construction. See State v.
Bailey, 346 Or 551, 562, 213 P3d 1240 (2009) (“[W]hen the
legislature includes an express provision in one statute and
omits the provision from another related statute, we assume
that the omission was deliberate.”). Moreover, ORS 426.234
and ORS 426.228 address release after a person has already
been detained, admitted, or retained at a hospital or nonhos-
pital facility, i.e., once a decision is already made to deprive
someone of their personal liberty.
The most persuasive point the majority makes is
that the legislature likely intended to immunize decisions
not to hold given the importance of personal liberty in the
civil commitment statutory framework. Indeed, I agree
with the majority that immunizing decisions to hold but
492 Mesch v. Unity Center for Behavioral Health

not those to release, discharge, or permit to leave runs the
risk of incentivizing holds in close cases. I also agree with
the majority’s implicit assertion that Oregon’s civil com-
mitment statutory framework, as we have interpreted it,
appears in some instances to rank personal liberty higher
than the provision of medical care to persons with mental
illness. See, e.g., State v. C. R., 216 Or App 395, 400, 173
P3d 836 (2007) (“Medical care for a life-threatening condi-
tion is considered a basic need. However, before involuntary
commitment is permitted under the governing statutes, the
threat to life must be actual, rather than speculative. Thus,
the mere apprehension that a person may commit suicide
is insufficient for commitment.” (Citation omitted.)). Within
that framework, any incentive to hold would be an unlikely
legislative intent.
But the majority’s citation to State v. J. W. H., 202
Or App 526, 534, 123 P3d 370 (2005), for the general prop-
osition that there is a “tension between protecting personal
liberty and the provision of medical help to persons with
mental illness,” 349 Or App at 478-79, does not carry the
day in the face of the clear and unambiguous statutory text.
And if personal liberty is the paramount concern, it is curi-
ous why the legislature would choose to immunize decisions
to hold, which by their definition deprive someone of their
personal liberty.
Moreover, apart from a general statement, the
majority provides no analytical support for such a conclusion.
If a general understanding of the importance of personal lib-
erty is to prevail over the unambiguous text in a statutory
interpretation analysis, that general understanding would
need more persuasive support than the majority presents.5
In sum, the plain text of ORS 426.232 does not address deci-
sions to discharge, release, or to otherwise allow a person to
5
A general understanding of a legislative priority is even more ambiguous
than legislative history, which the Supreme Court has held can rarely overcome
the plain meaning of statutory text. See Gaines, 346 Or at 172 (“[A] party seeking
to overcome seemingly plain and unambiguous text with legislative history has
a difficult task before it.”). Indeed, “[w]hen the text of a statute is truly capable
of having only one meaning, no weight can be given to legislative history that
suggests--or even confirms--that legislators intended something different.” Id. at
173. In my view, the same logic applies here to the weight, or lack thereof, of the
asserted legislative priority.
Cite as 349 Or App 463 (2026) 493

leave, and under our well-established legal framework for
interpreting statutes, that is the correct interpretation.
Turning to the immunity statute, ORS 426.335(5),
the critical language is the phrase “pursuant to.” I agree
that “pursuant to” means “in conformance to or agree-
ment with.” 349 Or App at 474-75. Having concluded that
ORS 426.232 authorizes only decisions to take action that
deprives a person of liberty—to hold, admit, or retain—it is
apparent that those are the only actions that can be taken
“pursuant to” the statute. A decision to allow a person to
leave a facility is not a decision to hold, admit, or retain,
nor does it deprive a person of personal liberty. A decision to
allow someone to leave is therefore not “an action pursuant
to” ORS 426.232. And because it is not an “action[ ] pursu-
ant to” ORS 426.232, immunity under ORS 426.335(5) is
unavailable for that decision.6
Our decision in Deming v. Mt. Hood Community
Mental Health Center, 128 Or App 164, 875 P2d 484, rev den,
320 Or 131 (1994), does not alter my conclusion. In Deming,
the plaintiff sued the defendant claiming that the defen-
dant’s agent negligently conducted an investigation under
ORS 426.074 into whether her uncle was mentally ill. Id. at
166. That investigation was required under ORS 426.070(3)
after two people filed a notice of mental illness with the
defendant concerning the uncle. Id. The investigator con-
cluded there was no probable cause to initiate a detention
proceeding against the uncle, who thereafter stabbed and
injured the plaintiff. Id. We rejected the plaintiff’s claim
that the immunity statute only applied to claims brought by
the allegedly mentally ill person and instead concluded that
it also applied to third-party claims. Id. at 166-67.
But that conclusion does not answer the most
important question raised in this case, which is whether
6
In addition, the other statutory actions that ORS 426.335(5) immunizes
all involve involuntarily holding a person. See ORS 426.228 (establishing peace
officers’ authority to take a person to a treatment facility); ORS 426.231 (permit-
ting practitioners to hold a person for transportation to a treatment facility); ORS
426.234 (establishing duties of staff after a person is involuntarily placed at a
facility); ORS 426.235 (permitting a community mental health program director
to transport an involuntarily held person between treatment facilities). In con-
text, then, it is analytically sound to conclude that ORS 426.232 also addresses
the actions taken to involuntarily hold a person.
494 Mesch v. Unity Center for Behavioral Health

defendants’ actions were taken “pursuant to” a statute cov-
ered in ORS 426.335. By contrast, in Deming, the investi-
gator’s actions undoubtably were taken “pursuant to” a cov-
ered statute: ORS 426.335(2) specifically immunizes mental
health programs from liability for “conducting the investi-
gation under ORS 426.070 and 426.074.” Here, by contrast,
defendants did not take actions “pursuant to” any covered
statute, so the question of whether immunity extends to
third-party liability is not at issue.
Deming further held that the immunity statute
immunized the investigator for the consequences of his
investigation. 128 Or App at 168. We reached that conclu-
sion because the duty to investigate was set in an indepen-
dent statute, ORS 426.074. Id. The statutory framework
thus already provided immunity for conducting the inves-
tigation and, we reasoned that, “[t]he only plausible reason
for the separate immunity provision is to insulate the con-
sequences of the required act, rather than the act itself.” Id.
Here, by contrast, there is no separate statute that mandates
any action by defendants, and thus, there is no redundancy
in immunizing the act of detaining, admitting, or retaining
a person.
Likewise, Cederberg v. Legacy Health, 2020 WL
5809991 (D Or Sept 28, 2020), does not persuade me to the
majority’s viewpoint. In Cederberg, the federal district court
did not engage in a Gaines analysis, so its persuasive value
is limited at best. Instead, the district court generally char-
acterized the statutory framework as having “conferred
broad immunity to those involved in the unenviable busi-
ness of deciding whether to hold people against their will for
involuntary mental health treatment.” Id. at *4. It then went
on to cite Deming for the proposition that
“The immunity conferred by the statute applies not only
to claims brought by a person who was involuntarily held
under the statutes, but also to claims brought by third
parties ‘whom that person injures or damages because the
[defendant’s] negligen[ce] * * * has left the person free to
commit the injurious act.’ ”
Id. (citing Deming, 128 Or App at 167 (brackets and ellipsis
in original)). But as I explained above, the mere fact that a
Cite as 349 Or App 463 (2026) 495

third party can be immunized from liability does not answer
the question as to whether a defendant’s actions are covered
by ORS 426.335.
The most on-point portion of Cederberg is the fed-
eral district court’s conclusion that the plaintiff’s theory of
liability necessarily implicated actions taken “pursuant to”
a covered statute. 2020 WL 5809991 at *4. The court wrote:
“Under [the] Plaintiffs’ theory, [the] Defendants’ inade-
quate policies and training could only harm the Plaintiffs
through [the nurse practitioner’s] negligent examination
of [the allegedly mentally ill person]—an action that was
taken ‘pursuant to’ the involuntary hold statutes. [ORS]
426.335(5).”
Id. (emphasis in original).
But ORS 432.232(1) does not authorize or require an
“examination”; indeed, that term is not found in the statute
at all. And the federal district court did not explain why it
viewed “examinations” and “assessments”—actions that are
found nowhere in ORS 426.232(1)—to be covered by immu-
nity. In my view, Cederberg mirrors errors in the majority
opinion in this case by determining what actions are “nec-
essarily” involved in a decision to detain, admit, or retain
under ORS 426.232, and expanding the scope of immunity
to cover those non-statutory actions.7
In sum, I agree that there is a certain logic to the
proposition that the statute should govern both decisions to
hold and decisions not to hold. But we do not determine the
meaning of statues through a general understanding of how
7
Notably, Cederberg cites administrative rules that were promulgated to
implement the statute. 2020 WL 5809991 at *4 (citing OAR ch 309, Div 33). But
apart from OAR 309-033-0250(3) (establishing standards for hospital and non-
hospital holds), the specific administrative rules cited by the federal district court
that reference examinations or assessments do not apply in this case because J
was never admitted to Unity and no notice of mental illness was filed. See OAR
309-033-0250(3) (requiring a “face-to-face examination” after a person is trans-
ported to a hospital under a peace officer’s hold, prior to initiating a further “hos-
pital hold”); OAR 309-033-0230 (referring to processes that occur after a person
is taken into custody, i.e., is being held for transportation to a treatment facil-
ity under ORS 426.231); OAR 309-033-0240 (referring to processes that occur
after a Notice of Mental Illness is filed with a circuit court). And even with an
“examination” referred to in OAR 309-033-0250(3), neither the federal district
court nor the majority explains why or how an administrative rule determines
the meaning of a statute under the Gaines analysis.
496 Mesch v. Unity Center for Behavioral Health

a statute should work, or a general concept of what was most
likely the legislature’s intent. Instead, we follow the frame-
work from Gaines and evaluate the text and context of a
statute and give legislative history and statutory maxims
consideration when appropriate. That analytical pathway
produces the legally correct result, even if that result may
be unanticipated or perhaps unwanted. Because the text
of ORS 426.232 is clear and unambiguous, and because it
did not govern defendants’ actions here, I would conclude
that the trial court erred in granting summary judgment
to defendants on the basis of immunity provided in ORS
426.335(5).
I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11325596. Public record. Not legal advice.