§ 15.8 Establishment of Psrb Jurisdiction

• Library: Criminal Law in Oregon (OSBar) (2022 Ed.)

§ 15.8 ESTABLISHMENT OF PSRB JURISDICTION

§ 15.8-1 Overseeing Agency

From 1978 through 2010, persons successfully asserting the defense of GEI, and not discharged or civilly committed by the trial court, were placed under the jurisdiction of the PSRB. Beginning in January of 2011, this changed with the creation of a new agency, the State Hospital Review Panel (SHRP), under the oversight of the Oregon Health Authority (OHA). See Or Laws 2011, ch 708, § 36; Or Laws 2011, ch 724, § 3. Placement was determined by the criminal offense that resulted in a finding of GEI, with offenses classified as either "Tier One" (PSRB) or "Tier Two" (OHA). As of July 1, 2018, the SHRP was eliminated, with jurisdiction transferred to the PSRB. See Or Laws 2017, ch 442. Therefore, earlier judgments placing defendants under OHA's jurisdiction should be understood to mean that the PSRB now has this authority.

§ 15.8-2 PSRB Hearings in General

§ 15.8-2(a) Issues

The PSRB must make findings on issues presented at hearings. ORS 161.346(1). In almost every case, the issues considered at a hearing will include whether the person continues to be affected by a qualifying mental disorder, and, if so, whether the person continues to present a substantial danger to others.

To maintain its jurisdiction over a person, the PSRB must find in the affirmative on both issues. ORS 161.346(1)(a); ORS 161.351(1). A qualifying mental disorder in remission is considered to be a qualifying mental disorder for jurisdictional purposes. ORS 161.351(2). Jurisdiction may continue over a person who is affected by a qualifying mental disorder, even if the diagnosis at the time of the hearing differs from the diagnosis responsible for the person's placement under the jurisdiction of the PSRB. Osborn v. Psychiatric Security Review Board, 325 Or 135, 142-43, 934 P2d 391 (1997); Rios v. Psychiatric Security Review Board, 325 Or 151, 157, 934 P2d 399 (1997), overruled on other grounds as stated in Tharp v. Psychiatric Security Review Board, 338 Or 413, 419 n 2, 110 P3d 103 (2005). A definition of qualifying mental disorder referring to the "current" Diagnostic and Statistical Manual of Mental Disorders (DSM) means the DSM edition that was in effect when the definition was adopted, not subsequent editions. Osborn, 325 Or at 147. See § 15.2-2(b) (versions of the DSM). Case law references to "mental disease or defect" have the identical meaning as "qualifying mental disorder," a term adopted by the Oregon Legislature in 2017. See § 15.2-2(a) (qualifying mental disorder).

If the PSRB has jurisdiction over a person, it must determine whether the person can be adequately controlled if conditionally released. ORS 161.346(1)(b). In determining whether a person should be committed to a state hospital or a secure intensive community inpatient facility, conditionally released, or discharged, the PSRB must have the protection of society as its primary concern. ORS 161.351(3). If the person cannot be adequately treated and supervised on conditional release, the PSRB must commit the person to a state mental hospital or, if the person is under the age of 18, a secure intensive community inpatient facility. ORS 161.346(1)(c).

The issues set forth above are the same as those addressed by the trial court in the dispositional hearing after a finding of GEI. See § 15.6-5(f) (issues after a GEI verdict); ORS 161.327(1); ORS 161.329.

PRACTICE TIP

In considering any conditional release plan, the PSRB will always include standard conditions it deems essential to its oversight. Anticipating and understanding those conditions is crucial when representing a client seeking release.

§ 15.8-2(b) Evaluations

§ 15.8-2(b)(1) Evaluations Ordered by PSRB

The PSRB has discretionary authority to appoint a psychiatrist or licensed psychologist to examine and submit a report on a defendant under its jurisdiction. Reports must include, but are not limited to, an opinion regarding

(1) the "mental condition" of the defendant;

(2) whether the defendant "presents a substantial danger to others"; and

(3) whether the defendant "could be adequately controlled with treatment as a condition of release."

ORS 161.346(2).

The PSRB may base its decision to discharge or conditionally release a defendant on these reports, and may also summon the examining psychiatrist or psychologist to give testimony. ORS 161.346(3).

PRACTICE TIP

When requesting the appointment of a psychiatrist or licensed psychologist, the lawyer must include a statement of the reasons for that request. The PSRB must provide an explanation for its decision. Bahrenfus v. Psychiatric Security Review Board, 120 Or App 442, 449-50, 853 P2d 290 (1993). See OAR 859-050-0095(3).

§ 15.8-2(b)(2) Evaluation Ordered by State

The lawyer representing the state before the PSRB may choose a psychiatrist or a licensed psychologist to examine the patient before a hearing. ORS 161.341(2). The examiner must file a written report with the agency and address at least the same issues as are required for an evaluation ordered by the PSRB. See § 15.8-2(b)(1) (evaluations ordered by the PSRB).

§ 15.8-2(c) Evidence Admissible at Hearings

Evidence that is admissible at hearings conducted by the PSRB include "[a]ll evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs." ORS 161.346(3). Such evidence includes, but is not limited to, the following:

(1) the record of the criminal trial;

(2) information supplied by the lawyer representing the state or by any other interested party, including the defendant; and

(3) the entire psychiatric and criminal history of the defendant.

ORS 161.346(3).

Although the PSRB must evaluate evidence received at hearings, the PSRB may not insert new evidence into the record. Rolfe v. Psychiatric Security Review Board, 53 Or App 941, 948-51, 633 P2d 846, rev den, 292 Or 334 (1981) (an agency may use its experience or expertise to evaluate and understand evidence; however, it may not use its specialized knowledge as a substitute for evidence presented at a hearing). The PSRB may consider a patient's psychiatric and criminal history in making a decision. The extent of the probative value of this evidence depends on the circumstances of each case. Rolfe, 53 Or App at 947-48. See Garcia v. Psychiatric Security Review Board, 117 Or App 172, 173, 843 P2d 465 (1992) (evidence of a qualifying mental disorder offered in exhibits that were prepared nine...