Osborn v. Psychiatric Sec. Review Bd.

• Decision Date: 27 March 1997
• Citation: 934 P.2d 391,325 Or. 135
• Parties: Jason David OSBORN, Petitioner on Review, v. PSYCHIATRIC SECURITY REVIEW BOARD, Respondent on Review. PSRB 89-1033; CA A85362; SC S42976.
• Court: Oregon Supreme Court

Page 391

934 P.2d 391

325 Or. 135

Jason David OSBORN, Petitioner on Review, v. PSYCHIATRIC SECURITY REVIEW BOARD, Respondent on Review.

PSRB 89-1033; CA A85362; SC S42976.

Supreme Court of Oregon.

Argued and Submitted Nov. 5, 1996.

Decided March 27, 1997.

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

Katharine H. Waldo, Assistant Attorney General, Salem, argued the cause for respondent on review. With her on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY, GRABER and DURHAM, JJ.

GRABER, Justice.

A trial court placed petitioner under the jurisdiction of the Psychiatric Security Review Board (PSRB) in 1989. After a hearing in June 1994, the PSRB denied petitioner's request for discharge and ordered his continued commitment. The PSRB concluded that petitioner continued to suffer from a mental disease or defect, that he continued to present a substantial danger to others, and that the PSRB therefore retained jurisdiction over him. The Court of Appeals affirmed. Osborn v. PSRB, 135 Or.App. 94, 96, 898 P.2d 789 (1995). We reverse the decision of the Court of Appeals, vacate the PSRB's order, and remand the case to the PSRB for reconsideration.

On July 10, 1989, after a trial based on stipulated facts, petitioner was found guilty except for insanity, ORS 161.295, ¹ of first-degree sodomy and first-degree sexual abuse of a 10-year-old boy. The trial court placed petitioner under the jurisdiction of the PSRB and committed him to Oregon State Hospital (OSH) for a period not to exceed 25 years.

In reaching its decision, the trial court expressly considered a report by a medical doctor who had evaluated petitioner on June 24, 1989, and had diagnosed him as suffering from an organic personality disorder and borderline intellectual functioning. That report stated:

"[Petitioner] has a[n] organic personality disorder, severe, manifest by emotional instability, outbursts of rage and aggression which are out of proportion to any stimulus, markedly inappropriate social judgment including sexual indiscretions, and paranoid and suspicious ideation toward others which is ongoing.

" * * * * *

"This disorder is a major mental disorder based upon organic impairment and should not be confused with the functional personality disorders. It is more akin to brain damage secondary to causes such as strokes or dementia, with which it is placed in the definitions of the Diagnostic and Statistical Manual of Mental Disorders [ (DSM) ] III-R." ²

After petitioner arrived at OSH, another medical doctor, Dr. Meyer, evaluated him on July 13, 1989. Meyer's provisional diagnosis was that petitioner suffered from organic personality syndrome, pedophilia, and borderline intellectual functioning, on Axis I; mixed personality disorder, on Axis II; and "positive PPD, by history," ³ on Axis III. ⁴

Meyer and other professionals who later evaluated petitioner consistently noted that petitioner should receive sex offender treatment. However, petitioner refused to participate in such treatment and, for the most part, would not participate in any other treatment programs.

Pursuant to ORS 161.341, ⁵ petitioner had a hearing before the PSRB on June 27, 1994, ⁶ at which he sought discharge from the PSRB's jurisdiction. The burden of proof was on the state. ORS 161.341(5).

In a progress note update three days before the hearing, Meyer wrote that petitioner suffered from pedophilia, on Axis I, and borderline or low average IQ and "mixed personality disorder, primarily passive-aggressive and dependent features," on Axis II. He listed no Axis III diagnosis.

Meyer and petitioner were the only witnesses at the hearing. Meyer testified that petitioner currently had an Axis I diagnosis of pedophilia and explained that petitioner's initial diagnosis of organic personality disorder had been a provisional diagnosis. Meyer stated: "[I]t takes a while to evaluate somebody, especially in [petitioner's] case * * * he's not a particularly reliable historian and we don't really have much [sic] information sources other than himself." Petitioner testified that he previously was a sex offender but is not now one and that other patients made up lies about his sexually acting out on the ward because "they don't like sex offenders."

By order dated July 7, 1994, the PSRB continued its jurisdiction over petitioner. The PSRB found as fact that:

"2. [Petitioner] is affected by a mental disease or defect as demonstrated by the underlying facts shown by the evidence including the expert testimony of John Meyer, M.D., at the hearing to the effect that [petitioner] suffers from a diagnosis of pedophilia as well as borderline or low average IQ. This finding is further supported by the information contained in [particular exhibits].

" * * * * *

"4. 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 he should not be discharged from the jurisdiction of the [PSRB]."

The PSRB concluded as a matter of law that:

"1. [Petitioner], being affected by a mental disease or defect and presenting a substantial danger to others, is under the jurisdiction of the [PSRB]."

The Court of Appeals affirmed, and we allowed petitioner's petition for review.

PSRB'S CONTINUING JURISDICTION WHEN A DIAGNOSIS CHANGES

In its order denying petitioner's release, the PSRB relied on ORS 161.346(1)(c) for its continued jurisdiction. ORS 161.346(1) provides:

"The board shall conduct hearings upon any application for discharge, conditional release, commitment or modification filed pursuant to ORS 161.336, 161.341 or 161.351 and as otherwise required by ORS 161.336 to 161.351 and shall make findings on the issues before it which may include:

"(a) If the board finds that the person is no longer affected by mental disease or defect, or, if so affected, no longer presents a substantial danger to others, the board shall order the person discharged from commitment or from conditional release.

"(b) If the board finds that the person is still affected by a mental disease or defect and is a substantial danger to others, but can be controlled adequately if conditionally released with treatment as a condition of release, the board shall order the person conditionally released as provided in ORS 161.336.

"(c) If the board finds that the person has not recovered from the mental disease or defect and is a substantial danger to others and cannot adequately be controlled if conditionally released on supervision, the board shall order the person committed to, or retained in, a state hospital designated by the Mental Health and Developmental Disability Services Division for care, custody and treatment." (Emphasis added.)

The parties dispute whether that statute provides a basis for the PSRB to retain jurisdiction over petitioner. Petitioner asserts that, at the time of his PSRB hearing in June 1994, he no longer suffered from an organic personality disorder, the condition for which he initially was placed under the PSRB's jurisdiction. Petitioner argues that, because he has "recovered" from the organic personality disorder, the PSRB could not continue its jurisdiction over him by finding that he now suffers from a different condition, even if that condition is a mental disease or defect within the meaning of ORS 161.295.

The PSRB responds that, as long as an individual who is under the PSRB's jurisdiction continues to suffer from any mental disease or defect within the meaning of ORS 161.295, the PSRB continues to have jurisdiction over that individual. The PSRB asserts that, although petitioner's diagnosis has changed from organic personality disorder to pedophilia, he still has a mental disease or defect and, therefore, still is subject to the PSRB's jurisdiction.

ORS 161.346(1) contains two requirements that must be met for the PSRB to continue jurisdiction over a person. First, the person must suffer from a mental disease or defect. Second, the person must present a substantial danger to others. The parties do not dispute that petitioner presents a substantial danger to others. Rather, the dispute centers on whether he has a mental disease or defect sufficient to allow the PSRB's continued jurisdiction. Therefore, we will discuss only that first statutory requirement.

In determining the meaning of a statute, we must discern the legislature's intent. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993). The first level of analysis is an examination of the text and context of the statute. Ibid.

At the outset, we agree with the PSRB that its jurisdiction under ORS 161.346(1) does not, by its terms, depend on a particular "diagnosis"; the statute refers to a condition of having a "mental disease or defect." A diagnosis is merely a label given to a condition; it is not the condition itself. Thus, the label may change, even though the individual's mental condition remains the same. A mere change in the label placed on a condition does not, in and of itself, mean that an individual has recovered from the mental disease or defect that originally placed him or her under the PSRB's jurisdiction. A variety of factors may account for a change in an individual's diagnosis. For example, the initial diagnosis may have been erroneous, because it was made without sufficient or accurate information about the individual or his or her history; the evolution of new diagnostic criteria may lead to a different diagnosis; or subjective views of the evaluator may influence the diagnosis.

Nonetheless, we must consider whether the "mental disease or defect" found at the time of the hearing must, under the statute, be the same "mental disease or defect" identified at the time of initial...