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Rinne v. Psychiatric Security Review Board

Court of Appeals of Oregon

May 15, 2019

NICHOLAS JUDSON RINNE, Petitioner,
v.
PSYCHIATRIC SECURITY REVIEW BOARD, Respondent.

          Submitted November 29, 2018

          Psychiatric Security Review Board 991597

          Harris S. Matarazzo fled the brief for petitioner.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, Assistant Attorney General, fled the brief for respondent.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary:

         Petitioner appeals from an order of the Psychiatric Security Review Board (PSRB) denying his request for discharge from PSRB jurisdiction and continuing his commitment to the Oregon State Hospital. Petitioner argues that substantial evidence does not support PSRB's finding that petitioner's anxiety disorder renders him a substantial danger to others.

         Held:

         The evidence in the record does not support PSRB's fending that petitioner's anxiety disorder will make him less likely to seek out sex offender treatment, nor does the order adequately explain PSRB's finding of a nexus between petitioner's qualifying mental disease or defect and the danger he presents to others. PSRB therefore erred, because substantial evidence does not support its finding that petitioner suffers from a qualifying mental disease or defect that renders him a substantial danger to others.

         [297 Or. App.550] DEHOOG, J.

         Petitioner appeals, requesting that we reverse and remand an order of the Psychiatric Security Review Board (PSRB) denying his request for discharge from PSRB jurisdiction and continuing his commitment to the Oregon State Hospital (OSH). Petitioner argues that neither PSRB's factual finding, that he presents a substantial danger to others as a result of a qualifying mental disease or defect, nor its resulting legal conclusion, that he remains subject to PSRB jurisdiction, is supported by substantial evidence. See ORS 161.351 (requiring discharge if person under PSRB jurisdiction 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"). Having reviewed PSRB's order and the underlying record, we agree with petitioner. Specifically, we conclude that substantial evidence does not support PSRB's finding, in support of its order, that petitioner's anxiety disorder renders him a substantial danger to others. As a result, we reverse and remand PSRB's order asserting continuing jurisdiction over petitioner.

         With the exception of PSRB's ultimate finding (that petitioner suffers from a qualifying mental disease or defect that renders him a substantial danger to others), the relevant facts are largely procedural and undisputed. Petitioner has been a patient at OSH since 1999, when a trial court entered a judgment finding petitioner guilty except for insanity and placing him under PSRB jurisdiction for a period of not more than 60 years.[1] See ORS 161.327(1) (authorizing commitment to state hospital of a person found guilty except for insanity of a felony, if the person "is affected by a qualifying [297 Or. App.551] mental disorder and presents a substantial danger to others"). Since then, petitioner has had multiple hearings before PSRB. Those include one held in 2015 after OSH requested that PSRB discharge petitioner because he no longer carried a "jurisdictional diagnosis," i.e., a qualifying mental health diagnosis warranting continued PSRB jurisdiction. See ORS 161.341(1) (2011), amended by Or Laws 2017, ch 634, § 11, and Or Laws 2017, ch 442, § 4;[2] OAR 859-060-0040. OSH recognized that petitioner remained at risk of sexually reoffending due to a nonqualifying diagnosis of Pedophilic Disorder.[3] OSH also acknowledged that petitioner exhibited symptoms of anxiety. In OSH's view, however, petitioner's anxiety symptoms were associated with his pedophilia and another nonqualifying personality disorder. In any event, OSH maintained, those symptoms were not themselves causally related to petitioner's dangerousness. Further, by that time, petitioner's only other potentially jurisdictional diagnosis of Autism Spectrum Disorder could no longer be supported. Thus, OSH asserted, PSRB no longer had any basis on which to continue exercising jurisdiction over [297 Or.App. 552] petitioner. At the conclusion of that proceeding, however, PSRB concluded that, because petitioner was "affected by a mental disease or defect which, when active, render[ed] him a substantial danger to others," he was properly under PSRB jurisdiction; accordingly, PSRB denied the requested discharge and continued petitioner's commitment to OSH. Petitioner appealed that decision.

         In 2016, while that appeal of PSRB's 2015 decision was pending before us, petitioner initiated another PSRB hearing on his own behalf. OSH again supported petitioner's discharge from PSRB jurisdiction. By then, however, OSH no longer held the view that petitioner did not have a potentially jurisdictional diagnosis; rather, acknowledging that petitioner had current diagnoses for Illness Anxiety Disorder and Other Specified Anxiety Disorder, OSH took the position that neither of those otherwise qualifying diagnoses was the cause of petitioner's dangerousness. As before, OSH expressed its view that the substantial risk that petitioner would engage in pedophilic behaviors in the future was solely due to his pedophilia. Accordingly, OSH again maintained that PSRB lacked jurisdiction over petitioner. The present appeal arises from PSRB's February 2017 hearing, at which it again rejected that argument.

         To provide context for our discussion of the evidence presented at that hearing, we pause to give an overview of the procedural and substantive laws governing PSRB's consideration of petitioner's request. At the time of the hearing, petitioner's request was governed by ORS 161.351 (2011), amended by Or Laws 2017, ch 634, § 13, and Or Laws 2017, ch 442, § 5. Under that provision, the standards for discharge were as follows:

"(1) Any person placed under the jurisdiction of the Psychiatric Security Review Board or the Oregon Health Authority under ORS 161.315 to 161.351 shall be discharged at such time as the agency having jurisdiction over the person, upon a hearing, finds by a preponderance of the evidence that the person is no longer affected by mental disease or defect or, if so affected, no longer presents a substantial danger to others that requires regular medical care, medication, supervision or treatment.
[297 Or.App. 553] "(2) For purposes of ORS 161.315 to 161.351, a person affected by a mental disease or defect in a state of remission is considered to have a mental disease or defect. A person whose mental disease or defect may, with reasonable medical probability, occasionally become active and when it becomes active will render the person a danger to others may not be discharged. The person shall continue under supervision and treatment necessary to protect the person and others.
"(3) In determining whether a person should be committed to a state hospital or secure intensive community inpatient facility, conditionally released or discharged, the board and the authority shall have as their primary concern the protection of society."

         As we observed in Beiswenger v. PSRB, 192 Or.App. 38, 41, 84 P.3d 180, rev dismissed as improvidently allowed, 337 Or. 669 (2004), the legislature did not define "mental disease or defect" other than to say what those terms do not mean, specifically, that they "do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, nor do they include any abnormality constituting solely a personality disorder." ORS 161.295(2) (1983), amended by Or Laws 2017, ch 634, § 3. Likewise, the legislature had not defined "personality disorder." See Beiswenger, 192 Or.App. at 45. Based, however, on our review of the statutory text and context, as well as the available legislative history and applicable canons of construction, we concluded in Beiswenger that, as used in ORS 161.295(2) (1983), "personality disorder" included sexual conduct disorders, alcohol dependency, and drug dependency. Id. at 54. As a result, those disorders did not constitute "mental dis-ease[s] or defect[s]" within the meaning of ORS 161.295(2) (1983). Id. And, in petitioner's case, there is no dispute that pedophilia is a sexual conduct disorder and therefore not a qualifying mental disease or defect for purposes of PSRB jurisdiction. Thus, under ORS 161.351(1) (2011), PSRB was required to discharge petitioner from its jurisdiction unless it found, by a preponderance of the evidence, that petitioner was affected by a mental health condition other than pedophilia or another "personality disorder" and that he "present[ed] a substantial danger to others that require[d] [297 Or.App. 554] regular medical care, medication, supervision or treatment." See also OAR 859-050-0055.[4]

         We return to the facts. At the 2017 hearing, PSRB considered petitioner's voluminous OSH file, which documented his various (and varying) mental health diagnoses, OSH's efforts to provide treatment in connection with those diagnoses, and petitioner's progress in that regard. Petitioner's records show that, well before he was first hospitalized in 1999, petitioner had been diagnosed with autism, a qualifying mental disease or defect. It is not readily apparent, however, whether that diagnosis played any role in PSRB's initial assertion of jurisdiction, because the judgment finding petitioner guilty except for insanity does not reflect a specific diagnosis. See ORS 161.325 (requiring qualifying mental disorder to be identified on the record but not explicitly requiring its listing in the judgment). In any event, by the time of petitioner's PSRB hearing in 2015, his treatment providers all agreed that an autism diagnosis could no longer be supported. And, although petitioner appears also to have been diagnosed shortly before his initial commitment with schizophrenia, another qualifying mental disease or defect, the record does not reflect an ongoing diagnosis for that or any related disorder, nor does PSRB appear to have relied on such a diagnosis in either 2015 or 2017.[5] Notably, since at least 2006, petitioner has openly acknowledged having malingered at the time of his [297 Or.App. 555] retrial as to certain "psychotic" symptoms in order to be hospitalized rather than incarcerated.

         PSRB also heard testimony, including that of Dr. Roff, who at the time of the hearing had been petitioner's treating psychiatrist for approximately two years. Roff, who, as part of her evaluation had reviewed the thousands of pages of petitioner's OSH records, testified that she had diagnosed petitioner with the following disorders, all of which are recognized in the Diagnostic and Statistical Manual of Mental Disorders-Fifth Edition (DSM-5): Illness Anxiety Disorder (previously known as Hypochondriasis); Other Specified Anxiety Disorder; Pedophilic Disorder (identified by Roff as petitioner's primary diagnosis); Antisocial Personality Disorder; Obsessive-Compulsive Personality Disorder; and Alcohol Use Disorder in full remission in a controlled environment. The parties evidently agree that, of those six diagnoses, only two qualify as "mental disease[s] or defect [s]" for purposes of PSRB jurisdiction: Illness Anxiety Disorder and Other Specified Anxiety Disorder. See ORS 161.295(2) (1983) ("mental disease or defect" does not include personality disorders); Beiswenger, 192 Or.App. at 54 (recognizing paraphilia to be a sexual conduct disorder and therefore a nonqualifying "personality disorder" under ORS 161.295(2) (1983)).[6] Consistent with OSH's view, however, Roff testified that petitioner's dangerousness was due solely to his nonqualifying diagnosis of Pedophilic Disorder.

         Following the 2017 hearing, PSRB made the following findings relevant to this appeal, accompanied by references to exhibits in the record that PSRB relied upon for support:

"2. [Petitioner] is affected by a mental disease or defect * * * [and] continues to suffer from an anxiety disorder, to [297 Or.App. 556] wit, Illness Anxiety Disorder and Other Specified Anxiety Disorder, for ...

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