Rolfe v. Psychiatric Security Review Board

633 P.2d 846, 53 Or. App. 941, 1981 Ore. App. LEXIS 3250
CourtCourt of Appeals of Oregon
DecidedSeptember 8, 1981
DocketPSRB 80-121, CA 18328
StatusPublished
Cited by20 cases

This text of 633 P.2d 846 (Rolfe v. Psychiatric Security Review Board) 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
Rolfe v. Psychiatric Security Review Board, 633 P.2d 846, 53 Or. App. 941, 1981 Ore. App. LEXIS 3250 (Or. Ct. App. 1981).

Opinions

[943]*943YOUNG, J.

Petitioner appeals from an order of the Psychiatric Security Review Board (PSRB) conditionally releasing him from his confinement to the Oregon State Hospital (OSH). Petitioner argues he should have been discharged from PSRB’s jurisdiction. We review under ORS 183.482 and remand for further hearing.

On April 4, 1979, petitioner broke into the house of his estranged wife and engaged in a course of conduct resulting in criminal charges of first degree rape, sodomy, robbery and burglary. On October 19,1979, the court found that petitioner would have been convicted of those crimes, but concluded he was not responsible because he had been affected by a mental disease or defect. The court, finding that petitioner continued to be so affected and presented a substantial danger to himself or others, placed him under the jurisdiction of PSRB for a period not to exceed 60 years. A hearing was held by PSRB in June, 1980, as required by ORS 161.341(6).1 Petitioner appeals from the order issued.

ORS 161.341(6) requires PSRB to exercise its continuing supervisory function and redetermine whether the individual is dangerous and still affected by a mental disease or defect. See Adams v. Psychiatric Review Bd., 290 Or 273, 279 n. 10, 281 n. 12, 621 P2d 572 (1980). "The state has the burden of proving by a preponderance of the evidence that the person continues to be affected by mental disease or defect and * * * continues to be a substantial danger to himself or others.” ORS 161.351(2). Unless both elements exist, the person must be discharged. ORS 161.346(l)(a); cf. ORS 161.351(1).2 A person whose mental [944]*944disease is in a state of remission, however, is considered still to be affected by the disease or defect. ORS 161.351(2). That person cannot be discharged if his disease "may, with reasonable medical probability, occasionally become active and * * * render him a danger to himself or others * * ORS 161.351(2). Under those circumstances he would be considered still to be a substantial danger to himself or others. Cochenour v. PSRB, 47 Or App 1097, 1102, 615 P2d 1155 (1980).

PSRB originally issued an order continuing petitioner’s commitment, but then reconsidered and ordered him conditionally released. Its modified order and opinion contain findings of ultimate fact adequate to justify its continued jurisdiction over petitioner. In particular, PSRB found that petitioner — though not at that time a present danger — could not be discharged because his mental disease or defect was in a state of remission and might, with reasonable medical probability, become active, which then would render him a danger to himself or others. Petitioner’s sole contention is that this finding is not supported by substantial evidence.

In making the above finding, PSRB relied not only on the evidence in the record of the hearing but also on "the [945]*945observations and opinions of the expert members” of the board; the latter were attached as exhibits to the board’s modified order and opinion.

The evidence presented shows that petitioner has attempted suicide between 20 and 30 times since 1968. He was admitted to OSH for the first time in 1973, when he voluntarily committed himself because of severe depression and an attempted suicide. He was diagnosed as suffering from depressive neurosis. He responded quickly to treatment and was released after one week.

Petitioner committed himself to OSH a second time in May, 1979.3 His case summary reports his suicide attempts and indicates that there had not been a six month period since 1968 when he had been free of suicidal ideation. It also relates that petitioner described periods of uncontrollable rage, with no apparent provocation, which resulted in outbursts of violence (though no injury occurred.) Petitioner was diagnosed at admission as again suffering from depressive neurosis. At the time of his release in July, 1979, the diagnosis was revised to "hysterical personality disorder,” with a prognosis "somewhat poor, considering the chronicity of his behavior * * * and his youthfulness.”

On July 6, 1979, petitioner was examined by a private psychiatrist, Candace McCanna, M. D., whose report was also made part of the record here. Dr. McCanna’s report details petitioner’s history and concludes:

"In summary, this is a young man with long-term history of difficulty in adjusting. He demonstrates episodic destructive behavior for which he has no conscious recollection. This behavior appears to manifest itself when Mr. Rolfe is in a stressful situation, particularly relating to fear of loss of love as when he feels threat of rejection by school mates, teachers, or marital partners. He appears to be poorly integrated in his experiencing of good and evil within himself and others.
"It is my conclusion that on April 4, 1979, during the time of the alleged criminal activity, Mr. Rolfe did suffer from a mental disease which would cause him to lack [946]*946substantial capacity to conform his conduct to the requirements of the law and to appreciate the criminality of his conduct. I believe that there is sufficient evidence to support the diagnosis of Borderline Personality Disorder manifested in Mr. Rolfe by episodic emergence of profound psychotic behavior patterns precipitated by stressful situations and followed by relatively prompt restitution of a functioning personality.
"Prognosis is poor due to Mr. Rolfe’s immature, irresponsible attitude and lack of commitment to treatment.”

All of the above relates to petitioner’s psychiatric condition at times prior to his court ordered commitment. It is the evidence upon which the court ordered commitment on October 19, 1979, and it is the evidence relied on by PSRB when it decided in October, 1980, to retain jurisdiction over petitioner. It does not, however, constitute the entire administrative record. The record also contains several letters and reports by members of the professional staff at OSH, all written within one month prior to petitioner’s hearing. These exhibits consistently state: (1) petitioner was not at that time (May, 1980) a danger to himself or others; (2) he had reacted extremely well to his treatment at OSH; and (3) he did not require further hospitalization. Two of these reports address the likelihood of petitioner’s future dangerousness; both state that it is not likely that he will present a danger to himself or others. None of the exhibits, however, states that petitioner is "cured”;4

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Rolfe v. Psychiatric Security Review Board
633 P.2d 846 (Court of Appeals of Oregon, 1981)

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Bluebook (online)
633 P.2d 846, 53 Or. App. 941, 1981 Ore. App. LEXIS 3250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rolfe-v-psychiatric-security-review-board-orctapp-1981.