129
Argued and submitted April 28, 2022, reversed and remanded February 8, 2023
MURIEL ELIZABETH HAIDAR,
Petitioner,
v.
PSYCHIATRIC SECURITY REVIEW BOARD,
Respondent.
Psychiatric Security Review Board
941304; A174806
524 P3d 986
Petitioner seeks review of an order from the Psychiatric Security Review
Board (PSRB) denying her request for discharge from PSRB jurisdiction. ORS
161.351 requires discharge where the person is no longer affected by a qualifying
mental disorder or no longer presents a substantial danger to others. Petitioner
concedes that she is affected by a qualifying mental disorder but argues that the
board’s determination that she presents a substantial danger to others is not supported by substantial evidence in the record. Held: None of the evidence cited by
the board supporting its conclusion that petitioner presented a substantial danger to others addressed petitioner’s more recent physical and mental condition,
which significantly changed in the years leading up to the PSRB hearing. Given
the significant change in her physical and mental condition, the order denying
petitioner discharge was not supported by substantial evidence.
Reversed and remanded.
Harris S. Matarazzo argued the cause and filed the brief
for petitioner.
Jona J. Maukonen, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Powers, Presiding Judge, and Hellman, Judge, and
Nakamoto, Senior Judge.
POWERS, P. J.
Reversed and remanded.
130 Haidar v. PSRB
POWERS, P. J.
Petitioner seeks review of an order from the
Psychiatric Security Review Board (PSRB) denying her
request for discharge from PSRB jurisdiction and continuing her conditional release to an Enhanced Residential
Care Facility. On judicial review, petitioner argues that,
although she is affected by a qualifying mental disorder,
the board’s determination that she presents a substantial
danger to others is not supported by substantial evidence
in the record. Petitioner contends that she should therefore
be discharged from PSRB jurisdiction under ORS 161.351
(requiring discharge where “the person is no longer affected
by a qualifying mental disorder or, if so affected, no longer
presents a substantial danger to others that requires regular medical care, medication, supervision or treatment”).
For the reasons explained below, we agree with petitioner’s
argument and reverse and remand the order asserting continuing jurisdiction over her.
The underlying facts are undisputed. In January
1994, petitioner was found guilty except for insanity on two
counts of felony murder for killing her mother and sister
by setting fire to the home that the three of them shared.
Petitioner was placed at the Oregon State Hospital under
the jurisdiction of the PSRB for a maximum of 40 years. See
ORS 161.327(1)(a) (authorizing the commitment to a state
hospital of a person found guilty except for insanity of a felony, if the person is affected by a qualifying mental disorder
and presents a substantial danger to others). Petitioner was
diagnosed with paranoid schizophrenia and later, in 2007,
with dementia. In 2009, petitioner was conditionally released
to a residential care facility, Premier Living, which provides
care for petitioner in coordination with Cascadia Behavioral
Health. In 2020, both Premier Living and Cascadia sought
petitioner’s discharge from PSRB jurisdiction under ORS
161.336(5)(b) (permitting any person or agency responsible
for supervision or treatment to apply for discharge from conditional release).
The state opposed discharge and, under OAR 859-
050-0055(3)(g), had the burden at a contested hearing before
the PSRB to prove by a preponderance of the evidence that
Cite as 324 Or App 129 (2023) 131
petitioner was affected by a qualifying mental disorder and
continued to present a substantial danger to others under
ORS 161.351(1).1 Two witnesses—both medical professionals that provided treatment to petitioner—were called to
testify, and 113 exhibits were admitted into evidence, which
included petitioner’s criminal history, hospital records, and
various health assessments. Following the hearing, PSRB
issued an order denying discharge, explaining that a primary factor in its decision was a lack of information regarding where petitioner would live and what controls would be
in place if she were discharged. In concluding that petitioner
continued to present a danger to others, the order provides,
in part:
“[Petitioner], without adequate supervision and treatment,
would continue to present a substantial danger to others
as demonstrated by the underlying facts shown by the
evidence, including the expert testimony of Megan Klein,
PA, at the hearing, the circumstances surrounding the
crimes for which she was placed under the jurisdiction
of the Psychiatric Security Review Board, as well as the
information contained in Exhibit 6, her criminal history
as found in Exhibit 7, as well as the information contained
in Exhibits 4, 6, 15, 22, 27, 31, 37, 55, 56, 58, 59, 61, 73, 78
and 85.”
On review, petitioner argues that the board’s order
is not supported by substantial evidence because the testimony at the hearing showed that she has experienced
significant physical and mental deterioration in recent
years, and because the order fails to explain why, given her
uncontested physical and mental decline, petitioner continues to be a danger to others. The board remonstrates that
the record contained substantial evidence to conclude that
discharging petitioner could mean removal from the highly
structured environment that PSRB jurisdiction currently
provides. Discharging petitioner, PSRB argues, would allow
1
ORS 161.351(1) provides:
“Any person placed under the jurisdiction of the Psychiatric Security
Review Board under ORS 161.315 to 161.351 shall be discharged at such
time as the board, upon a hearing, finds by a preponderance of the evidence
that the person is no longer affected by a qualifying mental disorder or, if
so affected, no longer presents a substantial danger to others that requires
regular medical care, medication, supervision or treatment.”
132 Haidar v. PSRB
petitioner to leave the facility and give her the option to discontinue her medications. Further, PSRB asserts that, without direct care and her medication, petitioner would potentially have increased symptoms of schizophrenia and pose a
risk to others.
We review the board’s order for errors of law and
substantial evidence. ORS 183.482(8)(a), (c). Disputed findings are reviewed to determine whether they are supported
by the evidentiary record and whether a reasonable person,
viewing the record as a whole, could make those findings.
ORS 183.482(8)(c); Rinne v. PSRB, 297 Or App 549, 557,
443
P3d 731 (2019). In addition to substantial evidence, we also
review for substantial reason. City of Roseburg v. Roseburg
City Firefighters,
292 Or 266, 271,
639 P2d 90 (1981). That is,
PSRB is required to explain any conclusions it makes with
enough detail for us to review its reasoning. Knotts v. PSRB,
250 Or App 448, 455,
280 P3d 1030 (2012). “If the board’s
reasoning cannot be ascertained or is faulty, then the order
is not supported by substantial reason.”
Id. (internal quotation marks omitted).
Having reviewed the order and underlying record
in accordance with that standard, we agree with petitioner’s
argument that the board’s order is not supported by substantial evidence. In particular, we conclude that the order
fails to grapple with uncontested testimony describing petitioner’s current mental and physical condition and therefore
lacks substantial evidence to support the conclusion that
petitioner presents a substantial danger given her current
condition.
We start with the testimony of Klein, a physician
assistant with Cascadia who has worked as petitioner’s psychiatric prescriber for the past seven years. The board cited
her testimony as part of its reasoning for concluding that
petitioner continues to present a substantial danger to others. Klein, however, testified that in her opinion, petitioner
does not present a substantial danger to others due to petitioner’s inability to ambulate and poor memory. According
to Klein, petitioner’s physical and mental capabilities have
greatly diminished over the seven years that Klein has
worked with her, and Klein described how petitioner now
Cite as 324 Or App 129 (2023) 133
needs assistance with daily tasks like bathing, dressing,
and walking.
Regarding the board’s concerns about what would
happen to petitioner if discharged, Klein testified that petitioner has a county case manager who would work in coordination with Cascadia to find an appropriate dementia
care facility. Such facilities, Klein testified, are more limited while petitioner remains under PSRB jurisdiction. And
although discharge would mean that petitioner could refuse
placement at such a facility, Klein testified that petitioner
has not sought to go out on her own. In fact, petitioner is
currently free to leave Premier Living when accompanied by
staff but has chosen not to do so since 2016.
At the hearing, the board expressed concerns that
discharge from its jurisdiction could result in petitioner
refusing to take her medication, which helps control schizophrenic symptoms. However, Klein testified that, despite
petitioner being unaware of what the medication is for or
why she needs it, she takes her medication voluntarily. The
medication controls petitioner’s schizophrenia, which Klein
described as “not active.” Klein acknowledged that, if discharged, PSRB would no longer be able to force petitioner
to take her medications. In Klein’s time working with her,
however, petitioner has not been combative, assaultive, or
threatening, and she testified that the type of memory care
facility that Cascadia would pursue would be secure and
have staff that provide medication management.
The other witness to testify was Holden, a mental
health program manager at Premier Living, who, at the
time of the hearing, had worked with petitioner for over
two years. Like Klein, Holden testified that, in her opinion,
petitioner does not present a substantial danger to others.
Holden testified that any nursing home or facility that petitioner would be transferred to if she were discharged would
have standards that monitor and prevent access to dangerous objects or incendiary devices. Holden agreed with Klein
that petitioner is not a person who seeks to leave the facility
where she is placed. In the past year, Holden accompanied
petitioner to the emergency department and, despite being
there for only three hours, petitioner was convinced that she
134 Haidar v. PSRB
lived there and was not able to recognize that she had been
living somewhere else prior to her visit to the emergency
department. Holden’s testimony also described the significant staff assistance and encouragement petitioner requires
just to maintain her hygiene or change her clothes.
As early as 2018, Holden wrote a letter to the PSRB
explaining that petitioner’s dementia had advanced, that
she had not left the facility for several years, that she had
no behavioral issues, and that transfer to a nursing or hospice program may be necessary. Petitioner’s PSRB status,
Holden wrote, would likely make that transfer difficult. In
2020, Holden wrote a second letter, which provided, in part,
“[Petitioner] has significant issues with her mobility and
gait. She walks slowly and holds onto the walls and rails
as available. She has significant difficulty in getting to a
standing position from lying or sitting. … If she were to
be discharged from PSRB, I believe she would be at very
low risk of recidivism due to her unwillingness to leave
the program, due to her mobility issues, and due to the
decreased influence of her mental illness on her current
state. I would support [petitioner] being discharged from
supervision under the Psychiatric Security Review Board.”
Although the board’s order did not reference either
letter, both letters from Holden were admitted as exhibits for
the board’s consideration. The board’s order did not specifically address Holden’s testimony either. As we understand
it, the sum of Klein’s and Holden’s testimony unequivocally
supported petitioner’s position that, due to her current mental and physical condition, she does not present a substantial
danger to others. The board’s order provides no explanation
as to why Klein’s testimony was cited in favor of continuing
jurisdiction or why Holden’s testimony was not cited at all.
Finally, when viewed in the context of the entire
record, the exhibits cited by the board do not provide substantial evidence that petitioner continues to present a substantial danger to others. Importantly, those exhibits depict
petitioner before the decline of her physical and mental abilities. For example, of the exhibits cited by the board’s order to
support its conclusion that petitioner presents a substantial
danger to others, the most recent was a two-page forensic
evaluation prepared in early 2015 by Dr. Mohandessi. In that
Cite as 324 Or App 129 (2023) 135
evaluation, Mohandessi concluded that petitioner’s diagnoses of schizophrenia and dementia “are currently active”
and that her symptoms “appear to be adequately controlled
with medications at this time[.]” He further concluded that,
when her symptoms are “not controlled, [petitioner] would
represent a danger to others.” In reaching his conclusions,
however, Mohandessi did not meet or examine petitioner in
person; rather, he based his conclusion on an evaluation of
petitioner’s records including a behavioral health assessment from 2012 and a mental health assessment from 2014.
In short, because none of the exhibits cited by PSRB
address petitioner’s more recent physical and mental condition, which significantly changed in the years leading up
to the PSRB hearing in 2020, we conclude that the order
lacks substantial evidence. Indeed, Klein described petitioner as “frail,” testifying that “[s]he needs assistance getting up from a chair” and that, when she is ambulating, she
either needs a handrail or the assistance of staff. Although
the board appeared to be concerned that petitioner have
a plan in place before her release from PSRB jurisdiction,
ORS 161.351(1) requires the board to release petitioner from
jurisdiction if she no longer presents a substantial danger
to others. Given the significant change in her physical and
mental condition, we conclude that the order denying petitioner discharge is not supported by substantial evidence.
Reversed and remanded.
