Matter of Alexander

554 P.2d 524, 26 Or. App. 943, 1976 Ore. App. LEXIS 1909
CourtCourt of Appeals of Oregon
DecidedSeptember 27, 1976
Docket42-228, CA 5616
StatusPublished
Cited by27 cases

This text of 554 P.2d 524 (Matter of Alexander) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matter of Alexander, 554 P.2d 524, 26 Or. App. 943, 1976 Ore. App. LEXIS 1909 (Or. Ct. App. 1976).

Opinions

[945]*945SLOAN, S. J.

This is a mental illness commitment proceeding pursuant to ORS ch 426.1 The Probate Department for Multnomah County found appellant to be mentally ill and ordered her committed to the Mental Health Division. She appeals.

There are four assignments of error. We detail discussion in only one, i.e., that the evidence is insufficient to find that appellant is mentally ill beyond a reasonable doubt. ORS 426.130. We agree. Even though this is decisive of the case, later mention will be made of the other assignments with the hope of avoiding similar problems in future cases.

ORS 426.005(2) defines a mentally ill person as one "* * * who, because of a mental disorder, is either:
"(a) [dlangerous to himself or others; or
"(b) [ulnable to provide for his basic personal needs and is not receiving such care as is necessary for his health or safety.”

A court must be certain beyond a reasonable doubt that a person is mentally ill before that person may be committed. ORS 426.130.

Before we examine the evidence in this particular case, it is necessary to discuss, generally, how to apply the reasonable doubt standard in the context of a mental illness hearing.

It is difficult enough, as in the criminal cases, to identify when the proof of an alleged past act can be said to reach a level of beyond a reasonable doubt. It is, and will be, doubly difficult in the mental illness cases because of the necessity of predicting future conduct. And, in most cases, there will be no overt act involved that may persuasively indicate the likelihood of repet[946]*946ition. Based upon the cases that have thus far reached this court, what will be offered is testimony by lay witnesses of an individual’s past conduct coupled with an interpretation of that conduct and of their observations by the professional examiners (ORS 426.110 and 426.120) and a prediction of not only his future conduct but also the effects which that conduct will have on himself and on those around him. It is not an overstatement to say that such a prediction will rarely, if ever, be completely free from doubt. Psychopathological predictions are simply not, as yet, that exact. See Kirkpatrick, Mental Commitment in Oregon, 53 Or L Rev 245 (1974); Rosenhan, Psychiatric Diagnosis, 13 Santa Clara L Rev 379 (1973); Developments in the Law — Civil Commitment of the Mentally 111, 87 Harv L Rev 1190 (1974).

This is not to say that proof beyond a reasonable doubt is impossible in a civil commitment proceeding. The 1973 amendments altering commitment procedures were designed to enhance procedural safeguards in civil commitment hearings; they certainly were not designed to eliminate completely all civil commitments.

The element of predictability is involved only in the requirement of dangerousness to self or others. The ability of one to care for himself requires a finding of existing conditions. This is reflected in a letter of J. D. Bray, M. D., to the Honorable Elizabeth W. Browne, Chairman, Senate Committee on Judiciary, Exhibit A to Senate Judiciary Committee Hearings on Senate Bill 510, April 4, 1973, pages 1-2:

" '* * * [0]r are unable to provide for their basic personal needs and are not receiving such care as is necessary for their health or safety. Inclusion of the latter concept allows commitment of some persons, primarily the elderly and those with chronic psychoses or organic brain disease, who are disoriented, out of contact with reality, or unable to make decisions about their basic needs because of their mental condition. It does not include the mentally retarded or persons who are unable [947]*947to care for their basic needs but are being properly cared for by others. ’ * * *” State v. O’Neill, 274 Or 59, 69, n 9, 545 P2d 97 (1976).

We hold that the letter of Dr. Bray expresses the legislative intent in respect to ORS 426.005(2)(b).

Even though psychopathological prediction is far from an exact science, it is the only professional guidance available. Obviously, the statute contemplates that the professional examiners’ findings will be an essential, but not a conclusive, basis for a finding that mental illness does or does not exist. What is needed, then, is for the professional examiners to fully explain the facts and observations that led them to a conclusion. A statement by the examining doctors, as in the instant case for example, that the person has a "flat” appearance is meaningless without explanation. And, if the examiner merely states a conclusion that the person being tested is dangerous to himself or others, it is not adequate. The basis of that conclusion must be supported by facts supporting the conclusion.

The drastic change in the concept of a mental illness hearing may have been best and most simply described by Professor Kirkpatrick in his comprehensive article at 53 Or L Rev, supra at 262-63:

"* * * An allegedly mentally ill person with a significant probability of committing murder may be a more suitable candidate than an allegedly mentally ill person with an even higher probability of throwing rocks at street lamps. In any event, the legislature clearly has rejected the traditional philosophy applied to mental commitment proceedings of 'when in doubt, commit.’ Under the new statute, if any reasonable doubt exists, an allegedly mentally ill person may not be committed.”

Some further discussion is required about the word "dangerous” as it applies to the alleged mentally ill person or others. No fixed definition or delineation has been found of what evidence will prove that element beyond a reasonable doubt. No sudden burst of prescience in the authorities cited and in the many addi[948]*948tional references in the cited authorities has revealed much more than a semantical exercise of substitution, one word for another. We believe that the determination must be on a case-to-case basis and will require, as above expressed, the diligence of the several professional disciplines involved to present and comprehensively analyze all relevant evidence.

In the present case the state has made no persuasive claim that appellant is unable to provide for her basic needs. The state’s brief says that there is "some evidence” to sustain that contention but that there is "significantly more evidence” to prove she is dangerous to herself.

The lack of evidence supporting mental illness is further highlighted by the paucity of testimony that appellant is suffering from a mental disorder. One of the two examiners never stated, either in his testimony or in his examination report, what type of mental disorder appellant was suffering from. The other examiner did not testify as to the type of mental illness from which appellant suffered, but in his report he noted that appellant had "prob.

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Bluebook (online)
554 P.2d 524, 26 Or. App. 943, 1976 Ore. App. LEXIS 1909, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-alexander-orctapp-1976.