696
Submitted September 6, 2018, affirmed October 9, 2019
In the Matter of S. T.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
S. T.,
Appellant.
Marion County Circuit Court
6635; A164442
450 P3d 529
Appellant in this civil commitment case appeals an order continuing his commitment to the Oregon State Hospital for an additional period not to exceed 180
days. On appeal, appellant asserts that the trial court erred in determining that
he still has a mental illness and is in need of further treatment because his mental disorder makes him dangerous to others. Held: The record was sufficient to
support a finding that appellant required commitment because he was likely to
stop taking his medications if he were not hospitalized and would be a danger to
others if not treated.
Affirmed.
Daniel J. Wren, Judge pro tempore.
Alexander C. Cambier and Multnomah Defenders, Inc.,
filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
Before Hadlock, Presiding Judge, and DeHoog, Judge, and
Aoyagi, Judge.
HADLOCK, P. J.
Affirmed.
Cite as 299 Or App 696 (2019) 697
HADLOCK, P. J.
Appellant was committed to the Oregon Health
Authority in 2016 because of mental illness and, in the proceeding that is the subject of this appeal, the trial court continued the commitment on the ground that appellant “still
has mental illness … and is in need of further treatment.”
The court’s determination was based on a finding that
appellant’s mental disorder makes him dangerous to others.
Appellant challenges that determination on appeal. For the
reasons below, we reject appellant’s arguments and, accordingly, affirm.
In a continued-commitment proceeding of the kind
involved here, the trial court’s task is to “determine whether
the person is still a person with mental illness and is in
need of further treatment.” ORS 426.307(6); see also State
v. M. G., 296 Or App 714, 717,
440 P3d 123 (2019) (explaining continued-commitment process). As pertinent here, “person with mental illness” is defined to include a person who,
because of a mental disorder, is “[d]angerous to … others.”
ORS 426.005(1)(f). A person is dangerous to others, for purposes of the commitment statutes, if the person’s mental disorder makes the person “highly likely to engage in future violence toward others, absent commitment.” State v. S. E. R.,
297 Or App 121, 122,
441 P3d 254 (2019). “Because the
standard of proof in a civil commitment case is the clear- and-convincing-evidence standard, the evidence supporting
commitment must be sufficient to permit the rational conclusion that it is highly probable that the person poses a
danger to … others.”
Id. Accordingly, “the evidence must
supply a concrete and particularized foundation for a prediction of future dangerousness absent commitment.”
Id.
(internal quotation marks omitted).
In reviewing a trial court’s decision to determine
whether those standards were met, “we view the evidence,
as supplemented and buttressed by permissible derivative
inferences, in the light most favorable to the trial court’s disposition and assess whether, when so viewed, the record was
legally sufficient to permit that outcome.” Dept. of Human
Services v. N. P., 257 Or App 633, 639,
307 P3d 444 (2013);
698 State v. S. T.
see S. E. R.,
297 Or App at 122 (applying that standard in
the commitment context).
The sole witness at appellant’s continued-commitment
hearing was Dr. Shad, who is a treating psychiatrist for
appellant at the Oregon State Hospital. Dr. Shad testified
that appellant’s psychiatric problems started when appellant was 49 or 50 years old, a few years before the hearing.
Appellant has been diagnosed with schizophrenia. In addition, medical imaging shows that a particular lobe of appellant’s brain is “completely missing.” That imaging, along
with appellant’s particular history,1 indicate that he may
have a kind of dementia called Pick’s Disease. According to
Dr. Shad, individuals with that kind of dementia “present
with personality changes, like sexual dis-inhibitions [and]
behavioral dis-inhibitions.” Dr. Shad testified that appellant’s “personality changes can be explained more on the
basis of this anatomical presentation we are seeing, rather
than schizophrenia by itself.” Before starting to present
signs of Pick’s Disease, appellant had no history of mental
disorder.
Appellant initially was hospitalized in Coos County
and later was transferred to the state hospital. In October
2016, appellant once called another patient a “golden good
boy,” a scuffle broke out, and appellant punched the other
patient in the face. In December 2016, another patient
accused appellant of stealing his gloves; the two men
exchanged punches, with appellant yelling, “I’m going to
shoot you.” Dr. Shad testified that those incidents of aggression “absolutely” reflect behavioral issues stemming from
the changes in the structure of appellant’s brain.
Dr. Shad acknowledged that appellant had engaged
in only a few acts of aggression, but testified that “the reason for that could be that [appellant] is being treated all this
1
Medical reports on which Dr. Shad relied indicated that appellant had
been charged with strangling his wife in 2014 and that there had been reports
of appellant threatening children and trying to lure them to his house. The trial
court allowed Dr. Shad to testify to that information to explain how he reached
his diagnosis and recommendations, but the court ruled that, because the testimony as to those events was hearsay, it would “not be using them for the truth
that they are asserting.”
Cite as 299 Or App 696 (2019) 699
time with medications” that could be “checking this behavior.” Dr. Shad had no doubt, however, that the “very complete
evidence of brain change” is associated with appellant’s
“personality changes.” Dr. Shad’s “biggest concern” centered
on the fact that additional neurological changes that occur
with advancing age “can further complicate [appellant’s]
behavior.”
Dr. Shad testified about the medications that appellant takes at the state hospital. There is “no ideal approved
drug for this condition which he has.” However, appellant is
given antidepressants, for which there is some evidence of
efficacy, and antipsychotic medications that are used to treat
the delusional and psychotic aspects of his illness. Appellant
still has a number of delusions despite being on medication,
possibly because of the changes to his brain. Nonetheless,
Dr. Shad testified, appellant’s medications positively affect
appellant’s ability to control his aggression.
If appellant were to continue taking the medications,
Dr. Shad was doubtful that appellant’s pre-hospitalization
behaviors would recur. However, appellant “has extremely
poor insight to his illness,” has no insight about why he is
taking medications, and has stated that he does not need
the medications. Dr. Shad did not believe that appellant
would take his medications if he were discharged. If appellant stops taking the medications, his aggressive behaviors
are likely to come back. Accordingly, appellant could present
a risk to the community if he is not taking medications. For
that reason, Dr. Shad believed that appellant is a danger to
others. However, Dr. Shad had never personally witnessed
appellant engage in any violent or aggressive acts.
Appellant repeatedly interjected comments during
the continued-commitment hearing, asserting that he had
never met Dr. Shad and denying that he had the conditions
or had engaged in some of the aggressive behaviors that
Dr. Shad described. Dr. Shad testified that those comments
reflect appellant’s medical condition: “He just cannot stop
this impulse to react and to be impulsive.” The trial court
continued appellant’s commitment based on Dr. Shad’s testimony and appellant’s interruptions, including his denial of
“any issues or concerns.”
700 State v. S. T.
Appellant raises two claims of error on appeal. In
his first assignment of error, appellant argues that the trial
court violated his rights under the Fourteenth Amendment
to the United States Constitution when it admitted progress
notes from appellant’s hospitalizations and allowed testimony based on those notes. We reject that assignment of
error without discussion.
In his second assignment of error, appellant challenges the trial court’s determination that he is a person
with mental illness, arguing that the record does not support a determination that his mental disorder makes him a
danger to others. In particular, appellant emphasizes that
evidence of his two physical altercations while hospitalized
occurred more than two months before the commitment
hearing and that no evidence was admitted (other than for
illustrating the basis for Dr. Shad’s opinions) regarding his
conduct before being hospitalized. In response, the state
emphasizes the evidence that appellant will stop taking
medications if discharged and, even while hospitalized, had
fought with other patients.
The question before us is whether the evidence
described above, viewed in the light most favoring the state,
provides “a concrete and particularized foundation for a
prediction of future dangerousness absent commitment.”
S. E. R., 297 Or App at 122 (internal quotation marks
omitted). Although this is a close case, we conclude that it
does.
Admittedly, the record is not as developed as one
might wish. Dr. Shad did not testify about the typical
progression of Pick’s Disease or what behaviors might be
expected to increase (or decrease) in frequency or severity as a person continues to live with that condition. No
evidence directly indicates whether appellant’s two posthospitalization fistfights were part of a pattern of aggressive
behavior or whether appellant’s aggression was escalating
over time. And, although Dr. Shad testified that defendant’s pre-hospitalization behaviors (those that reportedly
led to appellant’s initial commitment in 2016) were likely to
recur if he stopped taking his medications, no evidence was
Cite as 299 Or App 696 (2019) 701
admitted, for its truth, identifying what those behaviors
were.
However, the question is not whether the record is
fulsome; the question is whether the record is legally sufficient. Although the record does not include potentially helpful information like that described above, it does include
evidence that appellant’s mental disorder leads him to be
impulsive and physically aggressive, that his disorder manifested only within the last few years, and that it was the
behaviors associated with appellant’s disorder that led to his
original hospitalization. The record also reveals Dr. Shad’s
“biggest concern”—that, as appellant ages, additional neurological changes may “further complicate his behavior.”
From that evidence, the trial court could reasonably infer
that appellant’s mental disorder causes him to be physically aggressive to some extent even when he is hospitalized
and taking medications and that, given the changes to the
structure of his brain, that condition is likely to worsen over
time.
Based on Dr. Shad’s testimony, the court also could
reasonably find that appellant would stop taking medications if he were not hospitalized and that, in the absence
of such treatment, appellant’s impulsive behaviors and
the associated verbal and physical aggressiveness would
increase. Because appellant already has instigated or escalated physical confrontations with other patients even while
being treated for his disorder in the hospital, the trial court
could reasonably determine, based on the evidence in this
record, that appellant would present an even greater danger
to others if he were released. See State v. T. T., 293 Or App
376, 385,
428 P3d 921, rev den,
364 Or 209 (2018) (record
was sufficient to establish that the appellant’s mental disorder made her dangerous to others, even though it included
evidence of only a single physically violent act, because the
appellant’s psychotic symptoms were unabated, she was
unwilling to take medication, she lacked insight into her
condition, and she had impaired judgment); cf. State v. E. D.,
264 Or App 71, 75,
331 P3d 1032 (2014) (evidence of a single fistfight was insufficient to support commitment where
the record indicated it was “an isolated act” that did not
702 State v. S. T.
provide a basis for concluding that the appellant presented
“an ongoing danger to others”).2 The record provides a sufficient, if not elaborate, basis for predicting appellant’s future
dangerousness.
Affirmed.
2
Although appellant’s physically aggressive acts occurred in a hospital setting, the record does not suggest that they were responses to being restrained
or involuntarily held. Thus, this case is not like those in which we have held
that a person’s violent acts that are a result of being hospitalized cannot, themselves, form the basis for further hospitalization. See State v. S. R. J., 281 Or App
741, 755 n 5,
386 P3d 99 (2016) (“We note that there would be a certain irony to
involuntarily hospitalizing a person because that person engages in threatening
behavior when involuntarily hospitalized.”).
