Bean v. Oregon Health Authority ( 2024 )

606 July 3, 2024 No. 464
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Travis BEAN,
Petitioner,
v.
OREGON HEALTH AUTHORITY,
Respondent.
Oregon Health Authority
85695
A180959
Submitted May 23, 2024.
Travis L. Bean filed the brief pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jona J. Maukonen, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, Egan, Judge, and Kamins,
Judge.
KAMINS, J.
Affirmed.
Cite as 333 Or App 606 (2024) 607
KAMINS, J.
Petitioner seeks judicial review and reversal of
a final order of the Office of Administrative Hearings in
which an administrative law judge (ALJ) concluded that the
Oregon Health Authority and Oregon State Hospital (collec-
tively state hospital) could administer antipsychotic medi-
cation to petitioner without his informed consent. Petitioner
contends that the ALJ erred in concluding that the state
hospital properly followed the requirements set forth in OAR
309-114-0020(1)(a)-(c) for the involuntary administration of
medication. We affirm.1
We review the ALJ’s decision for substantial evi-
dence and legal error. Taylor v. Oregon State Hospital, 319
Or App 620, 621, 510 P3d 244 (2022). “Substantial evidence
exists to support a finding of fact when the record, viewed
as a whole, would permit a reasonable person to make that
finding.” ORS 183.482(8)(c).
A patient, like petitioner, who has not been adjudi-
cated as “legally incapacitated,” is presumed “competent to
consent to or withhold consent from significant procedures,”
which include the administration of antipsychotic medica-
tion. Taylor, 319 Or App at 622 (citing OAR 309-114-0010(2)(a);
OAR 309-114-0005(16)). However, a state institution may
administer that medication to a patient without the patient’s
informed consent for “good cause.” Id. (citing OAR 309-114-
0010(1)(b)(C)). In order to demonstrate “good cause” and as
relevant to this review, three factors must be satisfied. First,
the state hospital must demonstrate that the patient is
“deemed unable to consent to * * * the significant procedure,”
and that “determination must be documented.” OAR 309-
114-0020(1)(a). Second, the proposed significant procedure
must be likely to “restore or prevent deterioration of the per-
son’s mental or physical health, alleviate extreme suffering
or save or extend the person’s life.” OAR 309-114-0020(1)(b).
1
An approval order for a significant procedure “shall be only for as long as no
substantial increase in risk is encountered in administering the significant pro-
cedure of a similar class during the term of a person’s commitment, but in no case
longer than 180 days.” OAR 309-114-0020(5)(b). The state hospital contends that
the order is now moot because it was issued more than 180 days ago. Assuming
without deciding that the order is now moot and qualifies for an exception for
review, we address petitioner’s arguments.
608 Bean v. Oregon Health Authority
Third, the proposed procedure must be “the most appropri-
ate treatment for the person’s condition according to current
clinical practice and other less intrusive procedures have
been considered.” OAR 309-114-0020(1)(c).
In his only assignment of error, petitioner argues
that the ALJ erred in concluding that each of those three
requirements was satisfied.2 Petitioner first contends that
the state hospital did not satisfy OAR 309-114-0020(1)(a),
which provides that a treating physician and the indepen-
dent examining physician must document their determina-
tion that the patient is deemed unable to consent to the sig-
nificant procedure. That documentation “must include the
specific questions asked and answers given regarding the
patient’s ability to weigh the risks and benefits of the pro-
posed treatment, alternative treatment and no treatment.”
Id. Petitioner argues that that requirement was not satisfied
for two reasons: (1) Dr. Velez, petitioner’s treating physician,
and Dr. Jew, petitioner’s independent examining physician,
“never bothered to evaluate petitioner’s knowledge of risks
and benefits of treatment versus no treatment,” and (2) Jew
never spoke to petitioner because “the nursing staff would
not let them speak in private.”
Substantial evidence supports the ALJ’s determina-
tion that the state hospital complied with the requirements
set forth in OAR 309-114-0020(1)(a). Both Velez and Jew doc-
umented their findings on whether petitioner was deemed
able to consent to the significant procedure. Specifically,
Velez’s informed consent form included questions asked and
answered regarding petitioner’s “understanding of [his]
diagnosis,” his “understanding of the purpose, risks and
benefits of proposed treatments,” and his “understanding of
risks of not receiving proposed treatments as part of [his]
regimen.” Velez noted that petitioner “has no insight into his
illness,” and petitioner “does not believe that he needs med-
ications.” Similarly, Jew documented his determinations
on the informed consent form to the same questions after
reviewing petitioner’s medical record and history.
2
The state hospital contends that petitioner’s arguments are unpreserved.
For purposes of this appeal, we assume without deciding that petitioner’s argu-
ments are preserved.
Cite as 333 Or App 606 (2024) 609
Petitioner is correct that Jew did not meet with him
to discuss the form. However, that is because petitioner twice
refused to participate in that meeting. Under OAR 309-114-
0020(4)(a)(B), if a patient refuses to meet with an indepen-
dent consulting physician after “two good faith attempts,
the independent consultation and approval requirement * * *
shall be deemed to be fulfilled.” Because the record supports
the finding that Jew made two good faith attempts to meet
with petitioner, the ALJ did not err in concluding that the
state hospital followed OAR 309-114-0020(1)(a).
Second, petitioner argues that the ALJ erred in
ruling that the state hospital correctly applied OAR 309-
114-0020(1)(b), which essentially requires that the proposed
procedure benefits the patient’s mental health, alleviates
extreme suffering, or extends the patient’s life. That deter-
mination, petitioner argues, “would only be valid if [his]
diagnosis of schizophrenia was valid[.]”
The evidentiary record establishes that petitioner
was diagnosed with schizophrenia as early as 2014, and
that diagnosis was again confirmed in 2017. Petitioner’s
current treating physician once again confirmed his schizo-
phrenia diagnosis in December 2022. Because the record
supports the conclusion that petitioner has a valid diagno-
sis of schizophrenia, the ALJ did not err in concluding that
OAR 309-114-0020(1)(b) was satisfied.
Lastly, petitioner argues that the state hospital
did not meet OAR 309-114-0020(1)(c), requiring that the
proposed procedure “is the most appropriate treatment for
the person’s condition according to current clinical practice
and other less intrusive procedures have been considered[.]”
Petitioner contends that no alternative treatment proce-
dures were proposed. However, Velez and Jew considered
other treatments, such as psychotherapy and other group
and individual activities, but petitioner continually refused
to engage in those treatments. Nevertheless, Velez testified
that, even if petitioner participated in those treatments, it
would not be sufficient to restore petitioner without the pro-
posed medications. Because the record supports those con-
clusions, the ALJ did not err in determining that OAR 309-
114-0020(1)(c) was satisfied.
610 Bean v. Oregon Health Authority
In sum, we conclude that substantial evidence sup-
ports the ALJ’s factual findings, and that the ALJ did not
legally err in determining that the state hospital followed
the required statutory procedures.
Affirmed.