*1 Argued August September reversed and remanded Alexander, to be a alleged In the Matter Caroline Ill Person. Mentally OREGON, Respondent, STATE OF
v. ALEXANDER, Appellant. CAROLINE 5616) (No. 42-228, CA [943 *2 argued and Portland, the cause Rosenthal, MElden appellant. for the briefs filed Salem, Student, Lаw Green, H. Certified Karen respondent. brief argued on the With her cause for Attorney General, and W. Michael Johnson, were Lee General, Gillette, Salem. Solicitor Judge, Judge, Tanzer, and Schwab, Chief Before Judge. Sloan, Senior SLOAN, J.S.
[ 944-a *4 944-b [ SLOAN, J.S. proceeding is mental commitment
This a illness for рursuant to ORS ch 426.1 The Probate Department ill County mentally Multnomah found to be appellant and her to the Mental Health ordered committed Division. appeals. She
There four of We detail assignments are error. i.e., one, discussion in that is only the evidence find ill mentally insufficient to is beyond a agree. reasonable ORS 426.130. We doubt. case, Even this is mention though decisive later will be of the assignments made the other with hope avoiding problems similar in future cases. 426.005(2) mentally
ORS a ill as one person defines "* * * who, disorder, because of a mental is either: "(a) [dlangerous others; or himself or "(b) [ulnable provide personal for his basic needs and receiving necessary is not such care as is for his health safety.”
A court beyond must be сertain a reasonable doubt that a ill person may before be committed. ORS 426.130.
Before we examine the in particular this case, discuss, it is necessary generally, how to apply in reasonable doubt standard the context of a mеntal hearing. illness
It cases, in difficult enough, criminal identify when the act can proof alleged past of an be is, said to It reach a level of reasonable doubt. beyond be, will in the doubly difficult mental illness cases because of the future conduct. necessity of predicting And, cases, in most be no overt act involved there will may persuasively repet- indicate likelihood Nesbitt, (1975), 202, App Sup 1In State v. 23 Or Ct review (1976), Kirkpatrick, Oregon, denied and in L Mental Commitment in Or (1974), procedures following Rev 245 ch. delineated ORS chapter substantial amendments to that There detailed. is no repetition. need for *5 Based the have thus far reached ition. cases that upon court, testimony by lay this will offered is what be past coupled witnesses of an individual’s conduct with an of and of their observa interpretation that conduct (ORS the 426.110 and by tions 426.120) examiners professional not his future prediction only and a of will conduct but also the effects which that conduct It is on those him. an have himself and on around not rarely, such will say prediction overstatement a ever, if free from doubt. be completely not, as predictions yet, are Psychopathological simply in that exact. See Mental Commitment Kirkpatrick, Rosenhan, (1974); Psychiatric 53 L Rev Oregon, Or 245 (1973); Develop L 379 Diagnosis, 13 Santa Clara Rev Mentally ments in the the Law —Civil Commitment of (1974). 111, Rev 87 Harv L say beyond This is a reasonable proof not to proceeding. civil doubt in a commitment impossible commitment altering proce 1973 amendments The safeguards dures were to enhance designed procedural were not hearings; they certainly in civil commitment all civil commit designed completely eliminate ments. only is involved in predictability
The element of self The or others. requirement dangerousness of finding requires of one to care for himself ability D. is reflected in a letter of J. existing conditions. This Browne, W. D.,M. to the Honorable Elizabeth Bray, A Chairman, Exhibit Judiciary, on Senate Committee on Senate Judiciary Hearings Senаte Committee 510, 4, 1973, 1-2: pages Bill April " '* * * their provide for basic [0]r are unable to receiving care as are not such personal needs and safety. Inclusion of necessary for their health or persons, commitment of some concеpt latter allows psychoses with chronic primarily elderly and those disoriented, disease, out contact organic brain who are about their reality, to make decisions with or unable It not mental condition. does basic needs beсause of their include the persons who unable retarded or to care for their are being properly basic needs but cared ’ * * *” O’Neill, 69, for others. State v. 274 Or n (1976). We hold that Dr. Bray the letter of expresses 426.005(2)(b). legislative intent to ORS respect Evеn though is far psychopathological prediction from an science, exact it is the only professional guidance available. Obviously, statute contem plates that the professional findings examiners’ will essential, be an conclusive, but not a basis for a *6 that finding mental illness does or does not exist. needed, then, What is is for the professional examiners to fully explain the facts and observations that led them to a A conclusion. statement by the examining doctors, as in the instаnt case for example, that person has a "flat” appearance is meaningless without explanation. And, if the examiner merely states conclusion that the person being tested is dangerous to others, himself or it is not The adequаte. basis of that conclusion must be facts supported by supporting conclusion.
The drastic in the change of a mental concept illness hearing may have been best and most simply described by Kirkpatrick Professor in his comprehen- Rеv, sive article at 53 Or L supra at 262-63: "* * * An allegedly mentally ill with a be a significant probability committing may of murder more suitable allegedly candidate than an mentally ill person with an even higher probability throwing of rocks at event, street lamps. any In the lеgislature clearly has rejected the philosophy applied traditional to mental doubt, commitment proceedings of 'when in commit.’ statute, Under the any exists, new if reasonable doubt an allegedly mentally person may ill not be cоmmitted.” Some further discussion is required about the word "dangerous” as it to the applies alleged 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 presci ence in the authorities cited and in the many addi-
[ in the authorities has revealed tional references much more than a semantical exercise of cited
substitution, that the determina- one word for anothеr. We believe require, and will tion must be on a case-to-case basis diligence profes- expressed, of the several above comprehen- disciplines present sional sively analyze involved evidence. all relevant persua- present the state has made no In the case provide appellant for her is unable to sive claim that says there is "some brief basic needs. The state’s that there is contention but evidence” to sustain that danger- "significantly prove she more evidence” ous to herself. supporting mental illness is
The lack of evidence testimony paucity highlighted of further appellant suffering One of a mental disorder. from stated, in his tes either the timony examiners never two type rеport, what or in his examination suffering The from. was mental disorder other examiner did not type testify of mental as to the report appellant suffered, but in his illness from which he noted schizophrenia, "prob. appellant had repeat type.” emphasis paranoid we that far more For apprise needed to court than these efforts are must illness. The examiners of mental the existence *7 again findings. It is for their detail the basis enough say emphasized that an it is not to that schizophrenic. probably addition, In individual is supplied. judgment Further, must be that reasons for the actual and possible illness of the mental effects specific catalogued, to the reference with should be at hand. individual
Finally, indicates that onе below the evidence appellant was whether as to was uncertain examiners suffering following passage The illness. a mental from is illustrative: Mutnick) you you this: When Let me ask "Q (by Mr. Bennett, T find that the Dr. finding, here under
write
[948 that mentally person,’ ill what does is a person examined mean? less information upon It that much
"A means based I do use of what my I to but than would like have have, my opinion. that is 'mentally ill mean?
"Q person’ What does I way, in this what it defined "A I think could be who would probably person person think of who аs —a oneself day-to-day care of taking difficulty have care judgment. might impaired and show "Q judgment? impaired show Might "A Yes. dangerous is
"Q that you person it mean Does their to care for other or unable people to themselves or general? needs in basic say yes. I
"A would you "Q meant when wrote you Is that what here? remember, I I have feel yes. "A You have part, In Iyet I would like to have and much less information than opinion. an have make
"Q you sufficient inform- don’t think that have You opiniоn? an give ation to an give I I like to have to
"A have less than would opinion. question. not the
"THE COURT: That is "DR. the question. I don’t understand BENNETT: you you "THE have sufficient COURT: Do before an you opinion form which will allow information to whether the not? mentally ill or Yes, I think so. "DR. BENNETT: Mutnick) "Q prepared You to state Mr. (by you recеived oath, the information upon under based having personally spoken to today without here Alexander, you pro- render a would examined Caroline fessional person, is a ill that she opinion to care people herself other or unable dangerous to for her needs? basic to her and spoken I have qualified yes.
"A A that I did not.” You indicated observed her. only case the
In the instant told her sister is that she once to others dangerous *8 people by children, that most are killed their while in expressing the same conversation with her extreme irritation produced father. No evidence was appellant repeated "threats,” has ever such or that she anyone. Compare has ever assaulted or attacked State (1975), App Sup Nesbitt, v. 23 Or Ct (1976). hearing review denied Her conduct at the appeared claiming unremarkable, save her of the privilege against Certainly self-incrimination. much more than this is needed to establish that аn individ- dangerous ual is to others. appellant dangerous
The evidence that to herself sparse. Appellant’s is almost as sister testified that appellant once said that she would like to be dead. Appellant’s sister further testified that she if believed appellant living might were alone there abe serious problem with There suicide. was also evidence trips lamps, refrigerator over leaves doors open, pan and has left a on stove the with the burner high. help оn Such evidence cannot but us with leave certainty considerable doubt. Much more than this required support from the examiners is to a commit ment order. hearing,
At the start of the a motion was made to appellant’s the dismiss case beсause of the absence of grant mother. The of the refusal court the motion is assignment appeal. one on The failure of one initiating petitioners appear may jeopardize the preclude state’s evidence. It would also use any examining physicians court of allegations missing contained the affidavit of the person requires because ORS 426.095 confrontation with the But witnesses. the absence of the require would not a dismissal. assignment charges permitting
Anothеr error in examining appellant’s refusal doctors utilize testify talk or as of mental The extent illness. may the doctors have relied on this refusal given weight opinions. reflects on the to be their In App setting, Nesbitt, v. 23 Or in State another 541 denied(1976), (1975), Sup *9 Ct review P2d 1055 significant. may cooperation more be lack of assignment error because asserts Another relating hospital records in admission when she received and treatment care Psychiatric Unit, Crisis Univer in the was confined pending Oregon sity in Pоrtland Medical School delay hearing. O’Neill, 274 Or v. read State in We hospital (1976), admission of 97 to bar the 545 P2d in records offered this case. and remanded.
Reversed concurring. specially TANZER, J., grounds specially set the same I concur on concurring my specially opinion in State v. out (September 27, App 935, P2d 556 554 Heintz, Or 1976).