710
Submitted November 29, 2018, reversed October 9, 2019
In the Matter of L. M.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
L. M.,
Appellant.
Lane County Circuit Court
17CC04823; A166994
450 P3d 548
Appellant in this civil commitment case appeals an order continuing his commitment to the Oregon Health Authority for an additional period not to exceed
180 days. On appeal, appellant asserts that the trial court erred in determining that he was unable to provide for his basic needs because he had a history
of resisting medical treatment. Held: The record was insufficient to support a
finding that appellant’s mental disorder left him unable to provide for his basic
needs.
Reversed.
Janet A. Klapstein, Judge pro tempore.
Joseph R. DeBin and Multnomah Defenders, Inc., filed
the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
Before Hadlock, Presiding Judge, and DeHoog, Judge, and
Aoyagi, Judge.
HADLOCK, P. J.
Reversed.
Cite as 299 Or App 710 (2019) 711
HADLOCK, P. J.
Appellant was committed to the Oregon Health
Authority because of mental illness in 2017 and, in the proceeding that is the subject of this appeal, was committed in
early 2018 for an additional period of up to 180 days. The
trial court based that commitment exclusively on the basis
that appellant continued to be mentally ill because his mental disorder left him unable to provide for his basic needs.
On appeal from the order of continued commitment, appellant argues that the record does not support the trial court’s
basic-needs determination. We agree and, accordingly, reverse.
We describe the facts in the light most favorable to
the trial court’s order. State v. M. G., 296 Or App 714, 715,
440
P3d 123 (2019). At the time of the January 2018 continued-commitment hearing, appellant was housed at the Oregon
State Hospital. He was 21 years old and would turn 22 in
March. Appellant’s treating psychiatrist testified that information from appellant’s family indicated that appellant had
“probably been psychotic and ill since the age of 18.”1 Before
his initial commitment in 2017, appellant lived with his family. He often wandered away from home, sometimes returning only partly dressed. At least once, his family members
found him lying on a sidewalk near busy streets. He drank
“household cleaner, such as Pine-Sol,” and had other disorganized behaviors. Appellant’s family members attempted
“numerous times” to get him help, including by taking him
to appointments, the nature of which is not described in the
record. Appellant once jumped from a moving car to avoid
going to an appointment. He also jumped from second-floor
balconies and ran to avoid appointments. In the past, appellant has become “very psychotic” when not medicated, has
had “multiple run-ins with the law,” and has pushed family
1
The only evidence in the record is the psychiatrist’s testimony. The transcript suggests that the trial court admitted some unspecified portion of that
evidence only for the limited purposes of providing “background” information
and as the basis for the psychiatrist’s opinion. On appeal, the parties have not
engaged on the question of whether that ruling limited the portions of the psychiatrist’s testimony that the trial court could properly consider in determining
whether appellant continued to be mentally ill. We need not address that question because, even considering all of the events and circumstances that the psychiatrist described, we conclude that her testimony was insufficient to support
the trial court’s continued-commitment order.
712 State v. L. M.
members and destroyed property. Appellant was unkempt
and, in the six months before his initial hospitalization, he
lost 30 pounds. However, the record does not reflect whether
that weight loss created any medical concerns.
In the summer of 2017, appellant “sustained a laceration to his hand and to his arm,” and his family found him
“with pools of blood.” Appellant would not go with his family
to the hospital, so they called 9-1-1 and had him taken in for
treatment, which included staples. When it was time for the
staples to be removed, it took three family members to get
him to the hospital to have that done. While there, family
members were able to have appellant psychiatrically admitted, and he was hospitalized for about two weeks. Appellant
was given medications and sent home, but he disappeared
two days later. Appellant returned home within a few days,
“but he was only wearing paper bottom scrubs” and “had
EKG stickers all over his chest and he had an IV-line in his
arm.” Appellant’s initial commitment followed.
While hospitalized on that commitment order, appellant needed round-the-clock supervision for such things as
administration of medications and attending to his hygiene
and grooming, despite being on a medication regime. He
needed constant reminders to change clothing and do laundry and was oblivious when he spilled liquids on himself. He
often threw out the food he was given and then rummaged
through trash for scraps. However, although appellant has
some nonpsychiatric medical conditions, none of them pose a
risk to his personal safety or his life, and he is “very healthy.”
Appellant’s psychiatrist does not believe that appellant will continue taking medications if he is released into
an unsupervised setting. Without medications, appellant
would “decompensate further” and his symptoms “would
become much worse.” In the psychiatrist’s view, appellant
would not be able to “take care of his basic needs” and “could
possibly become physically aggressive.” The psychiatrist
does not believe that appellant is ready to leave the hospital.
Appellant’s family is “incredibly supportive,” but he can no
longer live with his mother because, when he did, “there was
a lot of property destruction at the apartment,” and she was
evicted.
Cite as 299 Or App 710 (2019) 713
The trial court announced its ruling at the end of
the hearing, explaining the specific reasons that it found
appellant unable to provide for his basic needs. First, the
court noted that it was not basing its ruling on the evidence regarding appellant’s eating and hygiene behaviors.
Rather, the court’s ruling was essentially based on appellant’s history of being “actively resistant to seeking medical
attention”:
“So were he to be harmed, hit by a car, injured, he not
only would not know how to seek medical attention, but
would be actively resistant to medical attention, and I
agree that he has a history of refusing hospitalization on a
number of occasion[s], even to the extent that he’s jumping
off balconies, out of moving cars. I think the legal issue
were this to be appealed is really the issue of imminency.
“I think that’s a tough call, but on this kind of history,
given the extreme measures he has gone to, to avoid treatment for physical injury, I’m going to find that he remains
unable to care for his basic personal needs and not really
the hygiene, but [unable] to find medical assistance and be
receptive to medical assistance for personal injuries when
he is active in his schizophrenia condition.”
Appellant challenges that order on appeal, arguing,
among other things, that “the court’s concern that appellant would fail to obtain medical treatment” for “some sort
of accident in the future is speculative.” In response, the
state asserts that the evidence related to appellant’s efforts
to avoid necessary medical treatment was sufficient to support the court’s “determination that appellant, because of
his mental disorder, is unable to provide for his basic personal needs necessary to avoid serious physical harm in the
future.”
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 M. G., 296 Or
App at 717 (explaining continued-commitment process). A
“person with mental illness” is defined to include a person
who, because of a mental disorder, is “[u]nable to provide
for basic personal needs that are necessary to avoid serious
physical harm in the near future, and is not receiving such
714 State v. L. M.
care as is necessary to avoid such harm.” ORS 426.005(1)(f).
We recently explained that the term “serious physical
harm,” as used in that statute, “means bodily harm that
is serious enough that a person who suffers that harm is
unsafe in the absence of commitment, treatment, or other
amelioration of the physical condition.” State v. M. A. E.,
299
Or App 231, 239,
448 P3d 656 (2019). We also explained that
the risk of serious physical harm need not be “imminent”
or “immediate”; all the statute requires is that the person
be unable to provide for basic needs that are necessary to
avoid such harm “in the near future.”
Id. at 240 (quoting
ORS 426.005(1)(f)).
Here, we understand appellant to argue that, even
though there is evidence that he has avoided medical treatment for physical injuries in the past, the record does not
include evidence either that appellant had any analogous
injury or condition at the time of the continued-commitment
hearing or that he was at risk of an injury-causing accident
in the near future for which medical care would be necessary. We agree. The trial court certainly could infer from
this record that appellant would not take medications if
released from the hospital and that, if he suffered a physical
injury while not receiving treatment for his mental disorder,
he would resist being treated for that injury. The difficulty,
however, is that the record includes no basis on which the
court could infer that appellant would sustain any type of
physical injury in the near future; nor does it include evidence that would support a finding that, if appellant were
injured, the injury itself would constitute “serious physical
harm” or would lead to such harm if untreated.
As to timing, although the record includes evidence
of several alarming incidents before appellant was hospitalized in 2017, including the hand/arm laceration, drinking
household cleaner, and jumping from one or more balconies,
the evidence about those incidents is so lacking in detail
that it cannot form the basis for predicting what will happen “in the near future.” Three years passed between when
appellant’s psychosis first manifested and when he was hospitalized. The hand/arm laceration occurred shortly before
appellant was hospitalized, but no evidence suggests when,
Cite as 299 Or App 710 (2019) 715
during that three-year period, the other alarming incidents
occurred. Nor does any evidence indicate whether those
were isolated incidents or occurred with some frequency.
In particular, nothing in the record would support an inference that the hand/arm-laceration incident was other than
a one-time event. In the absence of such evidence, only speculation could lead to a determination that another such
incident would occur in the “near future” if appellant were
released.
The record is similarly lacking when it comes to the
risk of appellant suffering any injury, much less “serious
physical harm,” in the future. Except in relation to whatever caused the laceration of appellant’s hand and arm, no
evidence suggests that any of appellant’s other conduct led
to an injury or even caused a risk of serious physical harm
(the record does not indicate, for example, whether appellant
repeatedly gulped household cleaner or once took a sip). Nor
does any evidence suggest that appellant’s laceration injury
was the result of intentional self-harm. The record also does
not include any evidence suggesting that appellant suffered
serious physical harm on the occasions when he successfully
avoided medical treatment that family members attempted
to obtain for him. Moreover, except in relation to the hand/
arm laceration, no evidence supports an inference that appellant would have suffered serious physical harm on the occasions when he tried to avoid treatment, but failed. Finally,
the evidence about appellant’s past aggression includes no
information suggesting that his aggressive conduct ever led
to appellant being at risk of being harmed himself or that
any similar conduct was likely to put appellant at risk in the
future.
In sum, although the record supports the trial court’s
inference that appellant’s mental disorder makes him likely
to resist medical treatment for any injuries he may suffer in the future, the record is not adequate to support a
finding that appellant is likely to sustain an injury in the
near future that, if untreated, will lead to serious physical
harm.2 Accordingly, the trial court erred when it continued
2
Because we reverse appellant’s continued commitment on the merits, we
need not address appellant’s additional (and unpreserved) argument concerning
716 State v. L. M.
appellant’s commitment on the ground that his mental disorder made him unable to care for his basic needs.
Reversed.
the adequacy of the information that the trial court gave him at the start of the
continued-commitment hearing.
