Drew v. Psychiatric Sec. Review Bd.

Decision Date01 February 1996
Citation909 P.2d 1211,322 Or. 491
PartiesHeather Marie DREW, Petitioner on Review, v. PSYCHIATRIC SECURITY REVIEW BOARD, Respondent on Review. PSRB 92-1219; CA A77638; SC S41649.
CourtOregon Supreme Court

On review from the Court of Appeals. *

Harris S. Matarazzo, Portland, argued the cause and filed the brief for petitioner on review.

Michael D. Reynolds, Assistant Solicitor General, Salem, argued the cause for respondent on review.

GILLETTE, Justice.

This is a case involving the continuing commitment of petitioner to the Oregon State Hospital (OSH) by an order of respondent Psychiatric Security Review Board (PSRB). The Court of Appeals affirmed PSRB's order without opinion. We allowed petitioner's petition for review to assess her claim that PSRB's order was not supported by substantial evidence. For the reasons that follow, we reverse the decision of the Court of Appeals and remand the case to PSRB for further consideration.

Petitioner was charged in Douglas County with the offense of forgery in the first degree, in connection with her negotiation of two checks that she had stolen. Pursuant to an agreement with the district attorney and a stipulation filed in court, petitioner was found by the trial court to be guilty except for insanity. ORS 161.295. 1 She was committed to the supervision of PSRB for a period of five years, because the court determined that the crime for which she would have been convicted but for her insanity was a felony and that she was "affected by mental disease or defect and presents a substantial danger to others requiring commitment to a state mental hospital." ORS 161.327(1). At the same time, however, the trial court determined (again, pursuant to the parties' stipulation) that petitioner could "be adequately controlled with supervision and treatment through [the] Douglas County Mental Health [Department]." Accordingly, petitioner was released to the supervision and care of the Douglas County Mental Health Department, subject to a number of conditions.

The order committing petitioner to the custody of PSRB was entered on August 14, 1992. Less than three weeks later, on August 31, petitioner was taken into protective custody by Douglas County authorities after she punctured her wrist with a thumb tack and advised a police officer that she felt suicidal. Her caseworker asked that her conditional release be revoked. The conditional release was revoked, pursuant to ORS 161.336(5). 2 Also pursuant to that statute, a hearing was held before PSRB to determine whether petitioner's conditional release should be revoked or continued or whether, in the alternative, petitioner should be discharged. The hearing was held on September 28, 1992--just six weeks after petitioner first was placed under the jurisdiction of PSRB.

The only witness at the hearing was a social worker, Colvin, who worked on the ward where petitioner was housed at OSH. She had known petitioner for approximately three and one-half weeks. Because petitioner's treating psychiatrist, Dr. Reichlin, was unavailable, Colvin provided testimony to supplement Reichlin's written report concerning petitioner's condition, as that condition manifested itself at OSH.

Colvin testified that petitioner was suffering from various conditions, viz., "attention deficit disorder with hyperactivity," "Tourette's syndrome," and "academic problems with mild mental retardation." She described petitioner as someone with poor impulse control who frequently was verbally "in the[ ] face" of others, but who did not act out aggressively toward anyone. Colvin acknowledged that, on one occasion, petitioner had become so angry and frustrated on the ward that it had been necessary to remove her to another room, but stated that petitioner had gone willingly. Although her testimony generally was favorable toward the idea of petitioner's being released from OSH, Colvin acknowledged that she did not know the specific reason why petitioner's conditional release had been revoked.

All the rest of the evidence before PSRB was comprised of exhibits. Those exhibits included the trial judge's original conditional release order, the factual stipulations that had led to that order, the police reports concerning the offense that had led to the present case, and an eight-page psychological workup of petitioner by a forensic psychologist in connection with the criminal charges that she had faced, as well as Dr. Reichlin's report. The concluding paragraph of Dr. Reichlin's report is a reasonable summary of petitioner's status, as portrayed by the record as a whole:

"Regarding the PSRB jurisdictional elements, it appears very likely that she suffers from a mental disease or defect. However, her dangerousness [toward herself or others] is possibly questionable. I have not found any clear evidence that she has a history of dangerous acts toward others. She has been self-destructive, although mildly so, and she does not take care of herself very adequately even with a great deal of help. The crime for which she came under the jurisdiction of the PSRB, forgery, hardly involves physical violence toward others. The other crimes which appear on her rap sheet are two counts of criminal trespass, which, by her description, also were nonviolent behaviors. She has been accused of being a bad driver, and she does not dispute having stolen a car and driving without a license. On the other hand, it is unclear whether she used the car in a way that placed others at risk. I also note that [the forensic pathologist's] appraisal that she is physically aggressive is modified as 'perhaps, occasionally.' "

As pertinent to our review of this case, PSRB made the following findings of fact:

"[Petitioner] is affected by a mental disease or defect * * *.

"[Petitioner], without adequate supervision and treatment, would continue to present a substantial danger to others * * *. The Board * * * was convinced by a preponderance of the evidence that [petitioner's] mental limits, impulse problems and lack of judgment cause her to be a substantial danger to others.

" * * * * *

"The State sustained its burden of proving by a preponderance of the evidence that [petitioner] continues to be affected by a mental disease or defect and continues to be a substantial danger to others and that she should not be discharged from the jurisdiction of the Board."

PSRB ordered that petitioner's commitment to its supervision continue.

Petitioner then sought judicial review of PSRB's order in the Court of Appeals. Her sole argument before that court was that the order continuing her within the jurisdiction of PSRB was not supported by substantial evidence and that, more specifically, there was no substantial evidence that, if she were to be released, she would present a substantial danger to others. PSRB, after acknowledging that, "although the evidence of future dangerousness certainly is not as compelling as it sometimes is in PSRB cases," argued that the evidence nonetheless was "in the Board's view * * * sufficient to support [a] finding [of dangerousness], when viewed under the deferential standard of review that should be exercised of PSRB orders." The Court of Appeals affirmed the order of PSRB without opinion. Drew v. Psychiatric Security Review Board, 127 Or.App. 753, 875 P.2d 546 (1994). We allowed petitioner's petition for review to determine whether there was substantial evidence on the whole record to support the facts found by PSRB and to assess the correctness of PSRB's assertion that its determinations in this kind of case are entitled to some sort of "deference."

PSRB's continuing jurisdiction over persons such as petitioner must be based on the fact that such persons are found by PSRB, by a preponderance of the evidence, to be "affected by a mental disease or defect and [to] present[ ] a substantial danger to others." ORS 161.336(5). 3 Judicial review of PSRB orders such as the one at issue in this case is provided for by ORS 161.385(8):

"(a) When a person over whom the board exercises its jurisdiction is adversely affected or aggrieved by a final order of the board, the person is entitled to judicial review of the final order. * * *

"(b) The order and the proceedings underlying the order are subject to review by the Court of Appeals upon petition to that court filed within 60 days of the order for which review is sought. * * *

"(c) The court may affirm, reverse or remand the order on the same basis as provided in ORS 183.482(8)." 4

Petitioner does not deny that she suffers from a mental disease or defect sufficient to permit PSRB to assert jurisdiction over her. Her sole argument to this court (as it was to the Court of Appeals) is that there is no substantial evidence in the present record to meet the other half of the statutory test that is relevant here, viz., the requirement that she constitute a substantial danger to others. PSRB's argument in response has three interrelated elements, all of which are aimed at persuading this court that it should grant to PSRB decisions in this area some measure of "deference." We address each of those interrelated arguments in turn:

(1) The legislature has directed PSRB to "have as its primary concern the protection of society." ORS 161.336(10). It is true that PSRB is supposed to guard the public interest. We assume that it makes its decisions with that legislative admonition in mind. But there is no logical connection between that standard and a reviewing court's duty to ensure that agencies act only when justified by substantial evidence.

(2) Determinations of future dangerousness suffer from inherent uncertainty, because future human action is inherently uncertain. Such a decision, involving (as it necessarily does) evaluation and weighing of a person's character, capabilities, mental health, and personal history, is akin to parole decisions in the traditional...

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