Disability Rights Oregon Dedicated to Jessica Sharp 1984 - 2019 ?Our lives and our dignity have inherent value and we deserve to be treated like anyone else and to receive medical treatment when we need it.? Jessica Sharp The ?Unwanteds?: Looking for help, landing in jail In recent years, Disability Rights Oregon has worked hard to improve the experiences of people with mental health conditions who were ensnared in the criminal justice system. We have visited jails across the state and interviewed hundreds of people who are incarcerated. Conditions in Oregon jails are dire and each of these conversations affirmed the urgent need to improve the treatment people receive in custody. The long- term solution, however, must involve preventing people with mental illness from needlessly ending up in criminal justice settings. Many of the people who suffer most profoundly in jail have serious mental health concerns and are arrested on low-level charges related to their disability?trespass, disorderly conduct, misuse of 911, or violation of probation terms that they were never equipped to meet. Jails are the worst place for people with serious mental illness to be. Behavioral health resources in jail are sparse, risk of suicide is heightened, solitary confinement is often the default placement for people whose behavior does not conform, and mental health crisis is routinely met with force, discipline, lock-down, and the use of restraints. Law enforcement officials agree thatjails are not equipped to serve as mental health treatment facilities and that public safety may be better served by connecting individuals to treatment and supports in the community. ?Mentally ill persons do not belong in a jail, they deserve to be humanely housed in a therapeutic environment where they can be appropriately treated by medical professionals.? Washington County Sheriff Pat Garrett1 At a glance, the solution appears to be simply connecting individuals in need to the healthcare system rather than making an arrest. But it turns out that people who are frequently arrested on low-level behavioral health-related charges are often frequent visitors to emergency departments. A recent study looked at Oregonians who had been booked in jail four or more times in the past year. Those individuals were 150 times more likely to have visited an emergency department as compared to other adults enrolled in the Oregon Health Plan} They visit the hospitals to look for help, but sometimes it is the hospital who sends them tojail. The basic concept of mental health diversion is to offer treatment as a possibility instead ofjail. Beyond missed opportunities to divert, the cases described in The ?Unwanteds? point to pressures in our system 1 Declaration of Washington County Sheriff Pat Garrett, Case (D. Or), May 29, 2019. 2Justice Center, The Council of State Governments, ?Oregon?s Behavioral Health Justice Reinvestment Initiative: Improving Public Safety and Health Outcomes for People Who Are High Utilizers ofJail and Hospital Resources? (2019). The ?Unwanteds?: Looking for help, landing in jail 3 which fuel the opposite ofdiversion?an active removal of willing patients from the healthcare system and transfer of those individuals to the criminal justice system. The ?Unwanteds?? was prompted by a deepening understanding that decriminalizing mental illness requires more than simply transporting people in crisis to a hospital instead ofjail. Rather, it will require fundamental shifts in how we deliver healthcare?ensuring that we have a system that is accessible to navigate, trauma-informed, with resources that are ample and diverse enough to meet the need. At a minimum, a doctor?s commitment to doing no harm to a patient must be reflected in a commitment by the hospital system not to needlessly worsen the known social determinants of their patients? health.3 Jail is traumatizing and harmful to people with people with serious mental health concerns and hospitals must end the practice of dumping their ?unwanteds? into jail. ?Betty? Around 10 pm. on a fall night in 2018, the Portland Police Bureau received a call from Legacy Good Samaritan Hospital for ?an unwanted woman.? An officer responded to the call around midnight, and hospital staff directed him to a woman in the waiting area who, they reported, had no medical need to be there, and refused to leave. The police report describes ?Betty? as 76 years old, partially blind, experiencing pain due to ?lingering injuries? sustained during an assault at a homeless shelter, hardly able to walk, and ?most likely suffering from the onset of Dementia.? She had been seen at the emergency department of Oregon Health Science University earlier that day. ?Betty? admitted to refusing to leave the hospital, which would justify an arrest for trespass. But the officer was reluctant to take her to jail. He called Adult Protective Services who reported that the woman was known to them, but they could not provide a motel voucher because she had history of hoarding and property damage, which could result in county vouchers no longer being accepted by a particular motel. The officer looked into whether she could stay at the police precinct for the night. After consulting with the sergeant they ?determined that the precinct lobby may be too be unsafe for The officer completed the police bureau?s ?Mental Health Template? (indicating that a likely mental health condition was identified,) but none of the mental health-related techniques were used (such as de- escalation, disengagement with a plan, or delayed custody). No mental health professional responded or was present at the scene. Instead, this 76-year-old woman with multiple disabilities and health problems, was arrested, and booked at the Multnomah Countyjail. 3 There is a growing public health consensus that health outcomes are heavily impacted by the conditions in the places where people live. Living on the streets or living in jail can exact a heavy toll on a person?s physical and emotional well-being. See, Office of Disease Prevention and Health Promotion, ?Social Determinants of Health," The ?Unwanteds?: Looking for help, landing in jail 4 This single story raises so many questions about the nexus between our healthcare system, housing system, and our criminal justice system. Why would jail be the only available place of shelter for a woman who is older, homeless, in need of medical care, and has done nothing wrong? How could seeking help at a hospital be a crime? In many instances, hospitals make tremendous efforts to reach beyond the immediate healthcare needs of their patients and to address the life circumstances that are impacting their health. Portland-area hospitals have invested in recuperative care for patients whose post-hospitalization recovery would otherwise be thwarted by the harsh conditions of homelessness, and hospitals are even pooling resources to fund affordable housing development. People who work as social workers or medical providers in hospital emergency departments are driven to this career path by a desire and commitment to providing compassionate and competent care to patients in dire circumstances. But in the cases described in The nwanteds?, patients in the toughest of circumstances are pushed out of the healthcare system and re- routed to a place where they are highly unlikely to get the help they need?jail. In the policy debates around mental health diversion (providing healthcare, services, and supports instead of incarceration), one counterargument that is often raised is the notion that people with mental health conditions refuse treatment. That is certainly true in some cases, and people have important rights to make autonomous, informed decisions about their own healthcare. The cases examined in The "?Unwanteds? are telling, however, in that they involve people who wanted help, who sought help, and who refused to leave the place where they thought they could get help. What The nwanteds? uncovers is that privilege, not need, far too often is the determining factor in who receives treatment and who is dumped into jail. The ?Unwanteds?: Looking for help, landing in jail 5 — — 4 5 6 7 — https://www.pdxmonthly.com/articles/2019/4/23/the-numbers-behind-oregons-homelessness-crisis , https://www.oregoncf.org/news-resources/pressreleases/current/homelessness-and-housing-in-portland?noredirect=true https://www.oregonlive.com/opinion/2018/11/opinion_addressing_portlands_t.html 8 9 10 11 12 — 13 14 15 16 17 8 https://www.wweek.com/news/city/2017/08/16/whats-the-drug-of-choice-for-portlands-homeless/ 9 https://news.streetroots.org/2018/02/09/bill-would-force-oregon-addiction-services-commission-do-something 10 https://multco.us/multnomah-county-mental-health-system-analysis-0 11 12 13 https://www.oregonlive.com/portland/index.ssf/2018/06/portland_homeless_accounted_fo.html 14 15 16 17 A grave cyclical effect is occurring: 440 homeless people who were arrested in 2017 were arrested more than 20 times since 1996.18 The survey found 80% of homeless people arrested in 2017 had been arrested at least once before in the past twenty yea rs.19 In short, we know that more and more people are homeless on the streets of Portland, Oregon and that they are both more likely to experience poor physical and mental health, and more likely to be frequently arrested. No one is in favor of a system that criminalizes homelessness and healthcare needs, including law enforcement. You can?t arrest your way out of that issue of homelessness, or behavioral health, or addiction. Itjust doesn?t work. Where I?ve seen the work is with an intervention, with treatment, and wrap-around services in the community. That?s where lives are changed. Marion County Sheriffjason Myers20 Despite our shared views, however, the number of people with the combined risk factors of homelessness and mental illness funneling into the criminal justice system has drastically increased in recent years. The number of patients ordered to the state hospital (the Oregon State Hospital or because they were charged with a crime for which they are not competent to stand trial has more than doubled in the past seven years.21 According to the state hospital?s analysis, 66% of these patients reported being homeless immediately prior to their arrest.22 Criminalization is, by default, our statewide strategy; utilizing the most expensive and most restrictive intervention as a short-term ?fix? that only makes the long-term challenges worse. Portland: An Example ofa Statewide Problem The nwanteds? looks at arrests occurring at six Portland-area hospitals, but the issues discussed have statewide relevance. DRO visits jails and hospitals across the state, and we?ve learned about the degree to which hospitals and jails are intertwined. The people who are frequently arrested are often the same people who frequently present at the emergency department. In our interviews with multiple jail commanders across the state, a common theme is frustration with the lack of a healthcare and social services safety net 18 Id. 19 Id. 2? ?Decriminalize Mental Illness? video, Disability Rights Oregon, 21 Derek Wehr, email, 5/7/2019; the average daily population was 109 in january of 2012, and 258 in January 2019. 22 Derek Wehr, email, 5/7/2019; The ?Unwanteds?: Looking for help, landing in jail 8 to prevent vulnerable people from ending up in jail on low-level charges. Often, jail commanders report a tension with their local hospital over a high need population that neither system is eager to serve. The ?Unwanteds?: Looking for help, landing in jail 9 Methods Based on the reports we heard from our clients, from jails, and public defenders, DRO and the Criminal Justice Reform Clinic at Lewis Clark Law School sought to answer the question: do hospitals play a role in displacing people, especially those who are homeless and have behavioral health needs, from the healthcare system into the criminal justice system? In the summer of 2018, DRO submitted a public records request to the Portland Police Bureau requesting reports generated from calls from six Portland-area hospitals in which the primary offense was trespass. Our request covered a one-year period from summer 2017 through summer 2018.The hospitals included in the request are those that have emergency departments: Oregon Health Science University (OHSU), Legacy Good Samaritan Hospital (?Good Samaritan?), Legacy Emanuel Hospital (?Legacy?), Unity Center for Behavioral Health (?Unity?), Providence Portland Medical Center (?Providence Portland?), and Adventist Medical Center (?Adventist?). OHSU is unique among Portland-area hospitals in that it has its own internal police force of sworn officers who are empowered to make arrests. The other hospitals have security staff who can detain people, but call on outside law enforcement to effectuate arrests. Because of this distinction, DRO also submitted a public records request to OHSU, for trespass arrests within the same period. In total, we received 142 reports. Some of the reports provided, generated in fall 2018, postdate the period subject to our request. Below is a chart that breaks down the percentage of the 142 reports by hospital. 6% 3 I Adventist my I Good Samaritan A I Unity 20% OHSU Providence 22% I Emanual Emanuel: 49 (34.50%) Providence: 31 (21.83%) OHSU: 28 (19.71%) Unity: 14 Good Samaritan: 12 Adventist: 8 The ?Unwanteds?: Looking for help, landing in jail 1o A law student with the Criminal Justice Reform Clinic (CJRC) at Lewis Clark Law School entered information from these 142 reports into a spreadsheet, which allowed us to gather data regarding who is arrested for trespass at hospitals and why. The name and date of each arrest was matched with court records to determine whether the case was prosecuted and the outcome. The ?Unwanteds?: Looking for help, landing in jail 11 What Is Trespass and Howls It Operationalized at Hospitals? Under Oregon law, a person commits the crime of criminal trespass in the second degree if the person ?enters or remains unlawfully in a motor vehicle or in or upon premises.?23 In practice, ?remaining unlawfully? occurs when a person remains on the premises after being asked to leave. Trespass enforcement is a way of policing who is present in a particular space. When a person is asked to leave a hospital, and does not, they are eligible for arrest under Oregon?s criminal trespass statute. Hospitals and law enforcement often code these calls as ?unwanteds.? Each hospital sets its own policies regarding trespass or exclusion. Sometimes the exclusion order is permanent (and can last for the individual?s entire lifetime), and some orders are short-term (Le, 30 days). Hospitals may or may not have a system for periodic review of exclusion orders, and may or may not have a formal appeal process through which a trespassed individual can object. Often times, exclusion or trespass orders appear to be a tool used by security staff, which may be divorced from any clinical input. Importantly, the Emergency Medical Treatment and Labor Act requires emergency departments to screen all patients who come to the facility and to stabilize emergent medical conditions, including behavioral health emergencies. People who have been trespassed from a hospital retain their right to access the emergency department under EMTALA, although it?s not guaranteed that they are made aware of that right. Individuals have contacted DRO to report access to their primary care or specialty care provider was compromised due to a trespass notice, even occasionally over the objection of the clinician. 23 ORS 164.245 The ?Unwanteds?: Looking for help, landing in jail 12 People experiencing homelessness, people of color, and people with mental health concerns are disproportionately represented among those arrested for trespass at hospitals. The disposition ofthese calls almost always ends with the person in the custody ofthe jail, despite the fact that only a quarter appeared to present a risk of violence. How Many People Are Impacted? DRO asked hospitals to report the number of people currently subject to an exclusion notice or trespass from their facilities. As of April 2, 2019: OHSU: reported that 16 people were subject to a 30 day exclusion and 52 people had been permanently excluded.25 0 Legacy Health Systems: reported that 146 people were trespassed from all Legacy premises (including Emanuel, Good Samaritan, and Unity). Some ofthose orders are permanent and others are short term, but Legacy was not able to provide further detail on their duration.26 0 Providence: reported that Providence Portland Medical Center issued an estimated 114 trespasses of indefinite duration in the past three years. When DRO raised concerns about hospital trespass practices as part of our preliminary research for The ?Unwanteds?, Providence implemented a new security and clinical review process and rescinded 75 trespasses; leaving 39 trespass notices in place at this time.27 Adventist: did not respond to requests for information and provided no explanation for failing to respond. Presumably, there is some overlap between the trespass lists maintained by different hospitals, and some individuals may be effectively quite limited in where they can access healthcare. 25 Melanie Maurice, emails, April 10 and 12, 2019. 26 Gregory Chaimov, email, April 19, 2019. 27Jennifer Erwin, email, April 19, 2019. The ?Unwanteds?: Looking for help, landing in jail 13 100 80 60 White 40 POC 20 0 Police Reports Reviewed County Population 29 30 https://www.census.gov/quickfacts/fact/table/portlandcityoregon,multnomahcountyoregon,US/RHI125217 29 https://public.tableau.com/profile/oregon.housing.and.community.services#!/vizhome/InformationDashboardPITCount_1/P oint-in-TimeCount 30 https://www.census.gov/quickfacts/fact/table/portlandcityoregon,multnomahcountyoregon,US https://www.usich.gov/homelessness-statistics/or/ Ofthe 142 arrests, 109 involved patients who were either seeking care or being discharged from care31 mostly people who had been seen in the emergency department and refused to leave. Of the 94 people who were arrested at discharge, 71 were identified as homeless or transient. Only 26% ofthe reports (37) included facts indicating that the subject may have been violent or threatening. The remaining 104 reports did not include any facts suggesting a risk of violence. 30% of the reports contained facts that indicating that the individual had a mental health related concern. The majority ofthese individuals (32 out of 42) were either seeking care or had been discharged from care immediately prior to their arrest. 31 The other cases mostly involved people loitering in different parts of the hospital or on hospital grounds. The ?Unwanteds?: Looking for help, landing in jail 15 The Outcome Is Almost Always Jail Despite the fact that the vast majority of these cases involved non-violent, passive resistance to leaving a hospital, almost every one of these individuals ended up in jail. In 94% (133) ofthe cases, the resolution of the call involved booking the subject in jail??2 There were only a handful of exceptions; instances in which an officer took steps to arrange some alternative to jail. Two of those rare situations are described below. In one case, the officer determined that the subject appeared so sickly that it was highly unlikely that the jail would accept her.33 Plus, she had been discharged from the hospital with a bag of uncapped syringes, which he thought would be unsafe to handle. So, the officerjust dropped her (and her bag of sharps) off in the middle ofthe night at a transit station. ?Tammy? In September 2018, police responded to a call from Providence. Security explained that the individual had been treated in the emergency department and discharged at 2:30 am. According to the report, she did not want to leave the hospital and lingered in the bathroom, where she allegedly tried to use drugs. When security attempted to physically escort her off the property, she kicked and spat. According to the responding officer, ?She also appeared to be extremely sick. I did not see the point of risking my safety trying to inventory her bags [which were full of uncapped syringes], and it seemed highly unlikely that MCDC [the jail] would accept her as sick as she was. She assured me that she had no intention of returning to Providence Hospital, and understood that she was trespassed. Upon her request, I gave her a ride to the Hollywood Transit station where I released her.? 32 In one case, Providence security told the arresting officer that the office had agreed to prosecute all cases involving the hospital. The discharging patient requested to be taken to jail, stating that he had ?no place else to go.? Hospital security informed the officer that he wanted to pursue criminal charges and that ?the hospital has an agreement with the Multnomah County DA that no cases would be declined for ?no complaint.?? In a phone call, the Multnomah County office said that there is no such agreement and clarified what the security personnel may have been referring to. The office maintains a list of entities who have requested that all charges arising out of incidents on their property be prosecuted. The office still makes a case-by-case decision as to whether to proceed, but the additional step of contacting the victim is eliminated. The list was last updated on April 16, 2019, and Legacy Emanuel, Legacy Good Samaritan, Unity, Providence, and OHSU were all included on that list. 33 lfa person who presents at booking appears to require hospital care, thejail may require medical clearance by a hospital prior to booking. The ?Unwanteds?: Looking for help, landing in jail 16 Another case triggered a special response. Consistent with the vast majority of hospital trespass calls, the person at issue here was homeless. But she had only recently become homeless, had little prior law enforcement contact, and had history of professional employment. ?Karen? In September of 2017, police responded to 1:30 am. call from Good Samaritan Hospital. The officer reported: ?Upon speaking with [Karen], she denied trying to strike, but said she did indeed stay in the hospital trying to get a referral for social services. She said the hospital said it was too late at night and suggested she stay across the street on NW 23rd Ave. We spoke further and it became apparent that [Karen?s] actions were not the result of blatant criminal activity, but more likely from her being homeless and being very upset with her situation. Also, a records check showed very limited police contact, most recently being a mental hold in August. I learned she had only been transient for three months, and before that had been a certified [professional] living in Bend. Based on our conversation, it appeared that [Karen] was dealing with some mental health issues and substance abuse.? The officer called the Sergeant to get approval to issue a citation rather than arrest, and gave ?Karen? a ride to a homeless shelter, where she had a bed reserved. The ?Unwanteds?: Looking for help, landing in jail 17 In many of these cases, hospital security is enticed by the promise that a call to law enforcement will provide a quick resolution to the immediate situation with which they?re presented (person will not leave, call law enforcement, law enforcement takes them away, done). But hospital staff and administration are likely unaware of what happens after that person is arrested. They may not have imagined the fallout that flows from an arrest. Serious Harms Some of the cases we reviewed involve people who are frequently arrested. In those cases, a hospital-based arrest represents a potential missed opportunity to change the person?s trajectory by making a connection to services that would interrupt their cycle of bouncing between emergency departments, jail, service providers, and homelessness. This cycle comes at tremendous cost to all of these systems. Yet, those trapped in the cycle never actually receive the help they need. In other cases, the hospital might arrest a person who has never had contact with the criminal justice system before. One of these individuals was a young woman with schizophrenia named Jessica Sharp, who asked DRO to share her name and her story. Jessica was arrested for trespass at Providence Milwaukie Hospital.34 just want people to know that people with schizophrenia lives have value; that we are valuable people and we are worthy. Not just because of the contributions that we can make and the fact that we can be productive members of society, but because our lives and our dignity have inherent value and we deserve to be treated like anyone else and to receive medical treatment when we need it.? -Jessica Sharp, a patient who was arrested at a hospital According to Jessica, she failed to rouse and leave the emergency department when directed to do so. Police accused her of pretending to sleep. Jessica reported that she experienced catatonia, a condition which can render a person involuntarily immobile. She recalled briefly regaining consciousness and asking for food. At that point, she thought hospital staff may have suspected her of being homeless, which was (presumably) when the police were called. Jessica was not homeless. Her video interview, available on website: describes both the arrest and the fall-out she experienced. 34 Jessica?s arrest was outside the scope of records request to PPB. She reached out to us independently to share her story. The ?Unwanteds?: Looking for help, landing in jail 18 Following her arrest, Jessica spent a frightening week in jail. She had no access mental healthcare. After her release from jail, she found herself stranded with no phone, transportation, or the keys to her apartment. She hitched a ride with another discharging inmate, who hoisted her onto her balcony so that she could break in to her own apartment. An eviction notice was posted on the door and her dog had been impounded. By the time we metJessica, she was in a new apartment and had reunited with her dog, but her relationship to the healthcare system was permanently impacted by the fact that an ambulance ride to the hospital had so quickly and inexplicably triggered a negative encounter with the criminal justice system, a week in jail, and an eviction notice. We are deeply saddened to note that, this past winter, Jessica Sharp passed away from cancer. She was 34 years old. Systemic Problems Triggered by Mass-Criminalization of Mental IHness Prosecuting even a minor crime against a person with serious mental illness comes at a great financial and human cost. The charge may trigger an exceedingly long and expensive period of confinement, in jail and then at the state hospital. Afterwards, the individual is often discharged to homelessness and whatever they had before?whether that was a job, low-rent apartment, government benefits, or simply a tent and a companion animal?is gone. A Statewide ?Aid and Assist? Crisis Foundational to the criminal justice system in the United States is the concept that any person charged with a crime must be able to understand what they are being accused of doing wrong, and be able to work with their attorney to defend themselves in court. This concept is referred to as the ability to ?aid and assist? in their defense. If the person accused of a crime is unable to aid and assist due to their disability, mental illness, or another reason, then the person is not competent to stand trial. Once this determination is made by a judge, there are two paths. First, the State could choose to drop their charges against the person. Second, if the State wishes to continue to prosecute the person for a crime, then the court must order ?competency restoration services.? Competency restoration services include mental health treatment and a class about the legal system. Typically, those services are provided at the state hospital (the Oregon State Hospital or On average, people spend between 70-80 days at the state hospital on what?s often referred to as an ?aid and assist? order, but they can spend up to a year on a misdemeanor chargef??5 The cost of State Hospital is 35 Derek Wehr, email, 5/7/2019; The median length of stay for an aid and assist order was 77 days in 2018. See also The ?Unwanteds?: Looking for help, landing in jail 19 36 37 38 39 40 41 42 36 , https://www.oregonlive.com/news/2019/01/costly-ineffective-cruel-ways-to-lowercosts-improve-outcomes-for-oregons-mentally-ill.html 37 38 39 , https://www.oregonlive.com/pacific-northwest-news/2019/05/citing-moral-emergencyattorneys-seek-contempt-as-oregon-defies-mentally-ill-defendants-rights.html 40 https://www.usich.gov/homelessness-statistics/or/ 41 42 https://www.oregonlive.com/pacific-northwest-news/2019/05/oregon-mental-hospital-isworlds-most-expensive-homeless-shelter-state-health-director-says.html Stories of People Arrested at Hospitals who were not Competent to Face their Charges Due to Mental Illness Some ofthe people arrested at hospitals had mental health serious enough to render them unable to aid and assist in order to defend against the charge. Ironically, they were deemed insufficiently ill for clinical care, but too ill to face charges in the criminal justice system. The stories below provide examples of people who were seeking healthcare at a hospital, who were arrested for trespass instead of treated, and whose competency to stand trial (or ?aid and assist?) on the trespass charge was called into question. ?Carla? In the following story, jail clinical staff made an effort to change the trajectory of a young woman with serious mental health concerns. According to court records, ?Carla? has been arrested 52 times in the past six years in Multnomah County. Almost all ofthe charges against her are misdemeanors and violations for things such as sidewalk obstruction, camping, littering, interfering with a peace officer, trespass, disorderly conduct, theft, and public transportation fare violations. Many ofthese cases were not prosecuted. Some cases required an evaluation of her competency to determine whether she could understand the charge and aid and assist in her defense. She has had at least one admission to the state hospital. She returned from the State Hospital to jail and then, rather than discharge her to the street, jail clinical staff took the somewhat extraordinary step of having her released directly to Providence Hospital on a mental health hold. However, the hospital refused to let her stay. Records indicated that she wanted to remain at the hospital voluntarily and had even received approval for a continued stay from the on-call doctor. Instead, the hospital discharged her and sent her right back tojail on a new charge?trespass. Carla?s mental health condition was not in dispute, nor was her willingness to receive healthcare. Herjail records described a history of and she was ?making no sense? at the time of her arrest. When police arrived, Providence hospital security informed them that the woman had been ?brought to the location on a mental health hold.? She was cleared for discharge, but she refused to leave, repeating am not discharged!? Police found her handcuffed in the security office. The officer wrote that she ?attempted to speak to [the patient], however, she was talking to herself and making no sense.? She was arrested and taken to back to jail only a few days after she was released from jail to the hospital. The officer completed the police bureau?s ?mental health template? indicating that they identified a mental health concern, but none of the interventions identified on the template (such as de-escalation or contact with a mental health professional) were used. The ?Unwanteds?: Looking for help, landing in jail 21 ?Leonard? The hospital security report stated that the patient lay on the floor of a hallway in the emergency department in a gown and adult diaper, and refused to leave the hallway until he spoke to a police officer ?to report his supposed rape.? An officer came to speak with him, but afterwards, the patient still refused to leave. Police were called back to the scene and found ?Leonard? handcuffed and in a wheelchair. Hospital security reported that he was ?given the opportunity to leave the premises of his own accord, he refused to do so.? The police officer?s report states that ?Leonard? suffers from leukemia, neuropathy, and gangrene, which had resulted in the amputation of his leg. He was taken tojail and booked for trespass. A month after his arrest, a hearing was held to determine whether he was competent to proceed, or whether mental illness prevented him from understanding the charge and working with his attorney. At that point, the charge was dismissed. ?Richard? A homeless man was discharged from the hospital but continued to linger on the premises. Hospital security reported that the individual was ?pretending to talk on the phone.? When they asked him to leave he spoke nonsensically about his sovereignty and divine rights. The officer asked security what condition ?Richard? had been treated for in the hospital, but they did not know. The officer completed the police bureau?s ?mental health template? indicating that they identified a mental health concern, but none of the interventions identified on the template (such as de-escalation or contact with a mental health professional) were used. Instead, he was arrested and booked in jail. 5 days after his arrest, a hearing was held to determine whether ?Richard? was competent to proceed. At that point, the charge was dismissed. The fact that these individuals? competency to face their charges was doubted by the court provides confirmation of their legitimate mental health concerns and reaffirms the nonsensicality ofarresting people for seeking healthcare; an arrest in such cases only harms the individual and creates huge costs in other systems. The ?Unwanteds?: Looking for help, landing in jail 22 Most of the cases we reviewed appeared driven by a reticence to leave the hospital due to homelessness or disruptive behaviors related to a behavioral health condition. In all of these instances, treatment, diversion, or discharge planning could have offered a resolution that was both more humane and more effective than jail. Arrested for Seeking Mental Healthcare In our review, we identified 42 of the 142 reports as indicating an apparent connection to mental health related behaviors. It is possible that many other individuals had behavioral health needs, but that the officer did not observe or record any indicators. The 42 reports we identified contained clear indicators such as speaking ?nonsensically,? erratic behavior, disclosing a diagnosis of schizophrenia and saying that he had been off his medications for three weeks, ?making no sense,? or having been on a mental health hold or discharged from the inpatient unit immediately prior to the police response. Ofthese 42 individuals, 32 were either seeking care or had been discharged from care immediately prior to their arrest. This is a critical point, because the assumption is often made that people with mental illness end up in the justice system because they refuse healthcare interventions. In these cases, the opposite was true; the healthcare system refused them. ?Charles? The individual was assessed in the Emergency Department at Providence for suicidal thoughts. He was disruptive at the time of discharge, engaging in ?a fit,? and making threats. Security handcuffed him and almost tasered him, wrapped him in a blanket and brought him back to a room in the emergency department to await the police response. He fell asleep and was sleeping when police arrived. He was arrested and brought to jail. The mental health template was completed, but there were no attempts at de-escalation and no contact with a mental health professional was provided. During the booking, he accused the officer of being ?the anti-Christ,? and said that he was schizophrenic and had been off his medications for three weeks. He told the officer that he hadn't threatened anyone and that he was talking to the voices in his head. Reports involving police response to mental health-related behaviors at a hospital point to two areas of concern. First, law enforcement has failed to offer diversion in lieu ofjail, even for non-violent, low-level The ?Unwanteds?: Looking for help, landing in jail 23 offenders whose behavior appears to be mental health driven. Second, some reports raise serious questions about hospital compliance with their mandates regarding discharge planning. Police Failure to Divert In Oregon and across the country, there is a growing consensus that people should not be sent to jail for low-level behaviors related to a mental health concern. 43 Jail is known to be a harmful environment for people with mental illness; solitary confinement, increased suicide rates, and limited access to healthcare present heightened risks when combined with pre-existing mental health concerns. If the underlying cause for a person?s objectionable behavior indicates a need for behavioral healthcare, then time in jail is bound to make the problem worse, not better. When people are released from jail traumatized and in distress without housing, healthcare, or any support system, the cycle of repeat arrests is cemented rather than interrupted. A more proactive solution is to connect people to needed services in lieu of arrest. Portland Police written policy on response to mental health crisis encourages a non-criminal disposition if the behavior of the individual and the governmental interests at stake allow.44 Presumably, this policy would favor a non-criminal disposition if the person is not dangerous and the potential charge is not serious. Non- criminal outcomes suggested in the policy include referring the person to a mental health provider, calling an ambulance to bring the person to a mental health or medical facility, or providing police transport to a mental health or medical facility. But what are police supposed to do if the call originates from a mental health/medical facility? Police should not respond to calls for mental-health related behaviors at a mental health treatment facility. Further, mental health treatment facilities should not call the police to respond to mental health related behavior. These are precisely the types of situations that hospital clinicians and social workers are trained to handle; and the kinds of situations that may inevitably be escalated or criminalized through police presence. Ofthe hospital trespass reports reviewed, 36 included the Portland Police ?Mental Health Template,? indicating the police identified a potential mental health nexus. Our review identified a threat of violence in only 12 of the 36 cases. A non-violent person with an identified mental health concern, whose only crime is their presence at a medical facility, would appear to be the most likely candidate for pre-arrest diversion. Yetpeople whose reports included the Mental Health Template were arrested and booked in jail.45 43 In November 2017, Sheriff Mike Reese led the initiative to launch a new mental health diversion program. The program gave law enforcement officers the option of bringing people from Central Precinct who would otherwise be incarcerated on charges of trespass or disorderly conduct to the Cascadia Behavioral Health Walk-In Clinic. The officer would issue a citation, but if the person connected with the mental health provider, Cascadia would notify the district attorney, and the citation would be dropped. By all accounts, this initiative was not successful. The project was championed by the Multnomah County Sheriff?s Office, but was not implemented by the Portland Police Bureau. Six months after its launch, law enforcement transported only three individuals to the Cascadia Walk-In Clinic through this program and the effort was discontinued. 44 Police Response to Mental Health Crisis (850.20), Portland Police 45 The Mental Health Template requires officers to consider alternative techniques to resolve a situation that appears to be mental health driven. Officers can choose: []De-escalation []Disengagement with a plan The ?Unwanteds?: Looking for help, landing in jail 24 ?Tiffany? Police identified the subject of the call as a ?woman wouldn?t leave hospital.? When the officer arrived, he found the subject seated and handcuffed. She reported that ?she did not leave because she didn't have anywhere else to go, and someone at the hospital told her that they were going to give her breakfast burrito.? Hospital security report indicates that she engaged in erratic behavior at the time of her discharge from the Emergency Department, such as walking down the middle ofthe road and impeding traffic, throwing her belongings, and shaking her ?buttocks" at the security staff. After these behaviors, she was told to leave the property two more times. She refused and was placed in handcuffs and police were called. Hospital security described her as ?unremorseful and insulting? while she was held pending the police response. She continued to try to get out of her chair. Then, security reports that she ?became more remorseful of her actions and apologized. ?She began to cry and said she had experienced domestic violence. She was then arrested and booked in jail. The police bureau?s Mental Health Template was completed, but none of the interventions suggested in the template (such as de-escalation or contact with a mental health professional) were utilized. The basic concept of mental health diversion is to offer treatment as a possibility instead ofjail. Beyond missed opportunities to divert, these cases point to an active removal ofwilling patients from the healthcare system and transfer of those individuals to the criminal justice system?which fuel the opposite of diversion. This is how mental health disability is criminalized. Failure to Provide Discharge Planning More than half of reports we reviewed involved discharged or discharging patients?mostly people who had been seen in the emergency department and refused to leave. Of the 94 who were arrested at discharge, 71 were identified as homeless or transient. Not surprisingly, patients are reluctant to return to homelessness and there are insufficient recuperative care and shelter beds to meet the need.46 []Delayed Custody [X]Not Applicable; circumstances did not warrant any of the above Officers must also indicate whether a mental health professional responded to or was present at the scene. 46 Amy Reifenrath, ?Portland?s post-hospital care for homeless falls short of meeting needs," OregonLive, (last accessed on Jan. 20, 2019) The ?Unwanteds?: Looking for help, landing in jail 25 ?Janice? In September 2018, police were called to assist with a patient who was discharging from the inpatient behavioral health unit at Providence Portland. She was described as transient and in her early 405. According to hospital security, nurses on the inpatient unit called security to report that a discharged patient was ?stalling.? When security arrived, the patient began to yell, WANT TO GO BACK OUT As security escorted her out of the building, she began saying LET ME GO THE OTHER I GO OUT THOSE The security officers? plan was to walk her to the bus stop, but she began trying to push against the four security officers, in an attempt to force her way back into the building. They handcuffed her and put her in a wheelchair to await a police response. A bystander video-recorded the incident and was told by security that he would be trespassed as well. Police responded, the subject refused to speak to them, and she was transported directly to jail. ?Ronald? In December 2017, police were called to apprehend a patient who had been discharged from the emergency department but refused to leave. Security wheeled him to the sidewalk, but he refused to get out of the wheelchair. They finally got him seated on a ledge, but soon found he had stumbled back into the lobby and was sleeping on a bench. When asked to leave again, he said he couldn?t. So, the police were called. The responding officer recognized ?Ronald? because he had dropped him off at a drug and alcohol detox facility earlier that same day. The officer woke him up and ?Ronald? the individual ?crumbled down on the floor.? The officer told him that he ?needed to leave or he was going to be arrested for trespass? and he volunteered to go back to jail. His belongings exceeded what would fit into the jail locker, so the officer had to take them to Central Precinct. The property receipt notes that his belongings were all wet. The ?Unwanteds?: Looking for help, landing in jail 26 Hospitals have legal obligations to provide discharge planning, both from inpatient units and from emergency departments. The thoroughness ofthe discharge planning is often as important as the quality of the care itself. Especially for behavioral health conditions, several hours in an emergency department or seven days in an inpatient unit may only have value ifthe patient discharges with the supports in place to sustain their wellbeing. Transition planning matters as much as the healthcare services because it is the opportunity to invest in long-term stability and to prevent readmission. The examples above describe security officers attempting to forcibly wrangle a discharging patient to the bus stop, or wheeling a groggy and intoxicated man to the curb. These examples, along with stories throughout The nwanteds?, raise doubts about whether hospitals are meeting their obligations around discharge planning. FEDERAL LAW Hospital discharge planning duties are set forth under federal law, as a condition of participation in the Medicare program. All hospitals in The ?Unwanteds? voluntarily participate in Medicare. Federal regulations require hospitals participating in the Medicare program to create adequate discharge plans for patients upon discharge from an inpatient setting. Hospitals are required to identify ?all patients who are likely to suffer adverse health consequences upon discharge if there is no adequate discharge planning.? 47 Such patients, and any others who request discharge planning, must receive a discharge planning evaluation by qualified staff. That evaluation must address any need for post-hospitalization services and the availability of those services, and must include an assessment ofthe patient?s capacity for self-care in the environment from which they came. OREGON LAW State law also imposes discharge planning requirements, including new provisions that apply to behavioral health visits to emergency departments. In 2017, the Oregon legislature passed House Bill 3090, a law that extended inpatient discharge planning requirements to include patients who presented with behavioral health crisis in the emergency department.48 The Oregon Health Authority (OHA) promulgated administrative rules that operationalize the statutory language, and hospitals were required to comply as of December 1, 2018. Now, patients discharging from inpatient units and emergency departments, if seen for behavioral health crisis, have the right to: Involve a ?lay caregiver? (usually a friend or family member) 0 Receive a behavioral health assessment and a long-term needs assessment, which addresses the patient?s income, housing situation, insurance, and aftercare support 47 42 C.F.R. 482.43 48 2017, HB 3090, ORS 441.053 Release of patient presenting with behavioral health crisis The ?Unwanteds?: Looking for help, landing in jail 27 0 Access care coordination in order to facilitate a transition to outpatient treatment, community- based providers, peer support, lay caregivers or others who can implement the patient's plan of care 0 Have a follow-up appointment scheduled to occur within 7 days of discharge. Patients discharging from an emergency department after a behavioral health crisis also have the right to receive ?caring contacts? post discharge, which are brief communications to assist with care transition and to case management to assist with accessing ?medical and behavioral health care, social and educational services, public assistance and medical assistance and other needed community services identified in the individual?s patient-centered care plan.?49 In the 142 reports we reviewed, it is unclear whether any discharge planning occurred. Instead, it appears they these patients were simply labeled ?unwanted? and the police were called to remove them from the hospital. 49 OAR 836-053-1403 The ?Unwanteds?: Looking for help, landing in jail 28 Arrested for Lack of Shelter Ofthe reports reviewed, 72% identify the subject as homeless or transient.50 In many cases it is apparent that the individual had overstayed their welcome at the hospital because they had nowhere else to go. As an indication of the dearth of shelter options, a number of the subjects requested to be taken tojail. The following quotes are all from separate police reports. 0 have no medication, food or even shoes. Take me back to The subject refused to provide his name to staff at the emergency department. The report makes note of his altered mental status/paranoia. He stated to the officer: ?I?m not leaving. I guess you will have to take me tojail.? 0 Police interviewed the patient in a Providence emergency department exam room. He admitted to refusing to leave the hospital and said he wanted to be taken to jail. asked [him] if he was warned that he would be arrested if he did not leave. [He] said ?Yes, I want to go to jail.? I asked [him] why he wanted to go tojail. He responded, have no place else to 0 ?I?m not leaving, I?m not going out to the cold.? 0 had been previously trespassed numerous times as he frequently seeks hospitals as places of refuge during the cold.? In other reports, the subjects explain that they thought they would be allowed to sit in the waiting room until the buses started running, or they were hoping to talk to a social worker, or someone had promised food or a bus pass. Sometimes discharged patients fell asleep in a waiting room or the chapel. One 21-year- old was described as ?confused and looking for his shoes.? All of these scenarios ended with arrest. In one case, a recently discharged patient was lingering in the lobby at Emanuel Hospital. He told police that he was waiting to speak to a social worker. Nursing staff advised that he was discharged and that social work staff would not speak with him any further. She said the social worker ?had explained this to [him] already and even had offered him a bus pass to encourage him to move along.? At this point, the patient ?became angry and started demanding a bus pass.? The officer stated that they would not be ?offering that courtesy to him again today.? He was arrested and booked in jail. 5? 23% had identified addresses and 5% were marked as unknown (7). The ?Unwanteds?: Looking for help, landing in jail 29 ?Jennifer? In the fall of 2017, police were called to Adventist Hospital to respond to an ?unwanted? who had refused to leave after being cleared by medical personnel. Police arrived at about 10:45 pm. and found a 49-year-old- woman who said she didn?t want to leave because she did not have anywhere to go. The officer reported that she ?attempted to provide solutions and assistance with her current lack of housing.? ?Jennifer? declined an offer of a ride to a shelter or MAX stop, and did not have a friend who could pick her up. The officer informed her that ?if she continued to refuse to leave the hospital, I would have to arrest her for Criminal Trespassing. She then told me to arrest her. I then took her into custody without incident.? The report continued: ?[Jennifer] began crying and said she didn't know why she was being arrested. I told her she was being arrested for trespassing because she refused to leave and told me I would have to arrest her. She said she didn't think I would actually arrest her.? ?Jennifer? was booked in jail. The officer concluded; ?[s]he was advised to not return to Portland Adventist or she would be arrested again.? The ?Unwanteds?: Looking for help, landing in jail 30 The following recommendations will prevent people with disabilities from being arrested for seeking help and promote upstream solutions to reduce the churn of people with intense needs through emergency departments and jails. Our recommendations include: overhauling hospital trespass policies, enforcement of hospital discharge planning requirements, creating non-law enforcement street response teams, and increasing targeted investments in housing and community-based behavioral healthcare. Solution: Overhaul of Hospital Trespass Policies Patients who do not present a threat of violence should not be excluded or trespassed from a hospital. Hospitals are a critically important part of our healthcare infrastructure. Banning an individual should be recognized as a serious, temporary, last-resort option. The decision to ban a person from a hospital should not be a reactionary one as part of the security response at the site of a disturbance. Rather, it should be a multi-disciplinary decision that involves a clinical review. The trespass should be of limited duration and any trespassed individual should receive notice of how to appeal the decision. Even in the absence of an appeal, trespasses should be periodically reviewed for continued appropriateness. Hospital security staff should be trained in de-escalation techniques and crisis intervention. They should utilize those skills or call on clinical staff to assist, rather than relying on law enforcement to take a disruptive patient away. Hospitals should not pass a challenging patient off to security staff in lieu of providing discharge planning or behavioral healthcare. Hospital security staff practices should align with the mission ofthe healthcare system that they serve. Hospitals should track and make publicly available their data regarding use of trespass notices, including the number of notices issued and whether homeless people, people of color, and people with behavioral health needs are disproportionately impacted. Hospitals should also coordinate to ensure that an individual is not barred from multiple locations and effectively unable to access medical care in the area where they live. The ?Unwanteds?: Looking for help, landing in jail 31 51 52 53 51 52 53 https://www.oregon.gov/oha/PH/PROVIDERPARTNERRESOURCES/HEALTHCAREPROVIDERSFACILITIES/HEALTHC AREHEALTHCAREREGULATIONQUALITYIMPROVEMENT/Pages/complaint.aspx 54 55 54 https://www.portlandoregon.gov/police/article/701147 55 https://news.streetroots.org/2019/03/15/portland-street-response-street-roots-special-report 56 57 58 56 https://multco.us/multnomah-county-mental-health-system-analysis-0 57 https://www.opb.org/news/article/multnomah-county-mental-health-resource-center/ 58 https://www.lanecounty.org/UserFiles/Servers/Server_3585797/File/Government/County%20Departments/Health%20and %20Human%20Services/Human%20Services/HMIS%20ServicePoint/Fight%20Homeless%20wth%20Data%20handout% 201.pdf 59 60 61 62 63 59 https://www.csh.org/fuse/ https://multco.us/csh-frequent-users-systems-engagement-fuse-model 60 https://www.centralcityconcern.org/services/health-recovery/recuperative-care-program/index.html 61 http://www.governing.com/topics/health-human-services/khn-hospitals-homeless.html 62 https://www.centralcityconcern.org/housingishealth 63 , Across Oregon, judges, law enforcement, advocates, and people with lived experience in the criminal justice system agree that low-level, mental-health driven behaviors should be decriminalized. Yet, The ?Unwanteds? documents that people with identified mental health concerns are regularly arrested simply for being present at a hospital where they are unwanted. Their only crime is their presence in the space where they thought they could get help. If our healthcare system criminalizes people who are non-violent and seeking care, we will never make progress on reducing the growing influx of people who are funneled intojail due to behavioral health needs, and the cycle of crisis, criminalization, and homelessness will persist. The healthcare system?s ethical mandate to do no harm encompasses an obligation not to needlessly sabotage the social determinants (poverty, homelessness, criminal justice involvement), which have such profound health consequences. Closingjail doors will require opening doors elsewhere?to a system of community-based care and services that is accessible and welcoming, trauma-informed, focused on reducing harm (vs. enforcing compliance), and with ample resources and diverse interventions that address the spectrum of healthcare needs and the life circumstances that drive those needs. Some ofthese changes recommended in The nwanteds? fit squarely within a hospital?s obligation to its patients; other changes will require collaboration and resources beyond the walls ofthe hospital. Critical to implementing community-wide solutions is bringing hospitals into the consensus that jail is not the answer. The ?Unwanteds?: Looking for help, landing in jail 36 Written by Sarah Radcliffe, Managing Attorney for the Mental Health Rights Project at Disability Rights Oregon. Much gratitude to Professor Aliza Kaplan, Director of the Criminal Justice Reform Clinic at Lewis Clark Law School, who assisted with the design of this project, research, and editing. Thanks to Lewis Clark law student Brittany Hill for her exhaustive and detail-oriented work in entering the police reports into a comprehensive spreadsheet, and researching the outcomes of the cases. Thanks to DRO staff Lisa Rose Gagnon for assistance in analyzing the data. Finally, DRO appreciates the full cooperation ofthe Portland Police Bureau. Tammi Weiss spent an untold number of hours retrieving and redacting reports subject to public records request. Disability Rights Oregon is tax-exempt under Section 501(c)(3) of the Internal Revenue Code. Contributions are tax-deductible and will help us provide services to Oregonians with disabilities. Portions of this report may be reproduced without permission of Disability Rights Oregon, provided that the source be appropriately credited. This publication was funded in part by grants from Substance Abuse and Mental Health Services Administration (SAMHSA), the Administration for Community Living (ACL), and Rehabilitations Services Administration (RSA) Disability Rights Oregon is the Protection and Advocacy System for Oregon. The ?Unwanteds?: Looking for help, landing in jail 37 The ?Unwanteds?: Looking for help, landing in jail DRO Disability Rights Oregon 511 S.W. 10th Avenue, Suite 200 Portland, Oregon 97205 503-243-2081 or 800-452-1694 droregon.org 38