Hanson v. Psychiatric Security Review Board , 156 Or. App. 198 ( 1998 )

RIGGS, J. pro tempore.

Petitioner seeks review of an order of the Psychiatric Security Review Board (PSRB or the board) denying his request for discharge from a state hospital. We affirm.

On January 19, 1995, petitioner was placed under PSRB jurisdiction for a maximum of 40 years following a trial at which he was found guilty except for insanity of the crimes of assault in the first degree and attempted murder. Those charges stemmed from an incident in September 1994. Petitioner, who by his own admission had consumed a six-pack of beer and a half pint of whiskey per day for many years preceding the incident, became convinced that he was being pursued by a gang of criminals intent on killing him. After three sleepless days during which he consumed nothing but alcohol, repeatedly called 9-1-1, and was arrested for driving under the influence of intoxicants (DUII), he entered a DMV office in Portland for the purpose of resolving the DUII charge. While in the office, petitioner believed that he heard voices plotting his murder and concluded that a bystander, Maurice Thompson, was a member of the gang that was pursuing him. He approached Thompson and, without warning or provocation, stabbed him in the torso with a pocket knife, seriously injuring him.

Petitioner was arrested at the DMV office following a brief stand-off with police. Doctors who examined petitioner after his arrest variously diagnosed him with acute psychosis, homicidal ideation, paranoid ideation, drug abuse and alcohol dependence with delirium tremens. Those diagnoses were the basis for the trial verdict of guilty except for insanity.

Petitioner initially sought discharge from PSRB jurisdiction on April 10,1995, in a hearing pursuant to ORS 161.341(7)(a). In its order following that hearing, PSRB denied petitioner’s request for discharge but found him eligible for conditional release. However, the board found further that no facility for conditional release was then available and kept petitioner in the state hospital.

On December 4, 1995, PSRB held another hearing, this time pursuant to ORS 161.341(4),¹ after petitioner again requested discharge from the state hospital. The board denied that request, repeating its earlier findings that petitioner should not be discharged, and that he was eligible for conditional release but that he could not be released because of the lack of proper facilities. The only witnesses at the hearing were petitioner and Dr. Russell, his physician at the hospital. Russell testified that, according to his diagnosis, petitioner was suffering from alcohol abuse, which is an Axis I clinical disorder under the framework in the current version of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV).² Russell further testified that he did not consider alcohol abuse to be a mental disease or defect.

In its order, PSRB found that petitioner suffered from alcohol abuse, that alcohol abuse is a mental disease or defect for purposes of ORS 161.341(4)(a), and that, without adequate supervision, petitioner would continue to present a danger to others. Petitioner challenges those findings, first on the ground that alcohol abuse is not a mental disease or defect under Oregon law and second on the ground that the board’s determination was not supported by substantial evidence. We first address the contention that alcohol abuse is not a mental disease or defect.

The terms “mental disease” and “mental defect” are not defined by statute. They are defined, however, in PSRB’s rules at OAR 859-010-0005:

“(4) ‘Mental Disease.’ Mental disease is defined as any diagnosis of mental disorder which is a significant behavioral or psychological syndrome or pattern that is associated with distress or disability causing symptoms or impairment in at least one important area of an individual’s functioning and is defined in the current Diagnostic and Statistical Manual of Mental Disorders (DSMIV) of the American Psychiatric Association.

“(5) ‘Mental Defect.’ Mental defect is defined as mental retardation, brain damage or other biological dysfunction that is associated with distress or disability causing symptoms or impairment in at least one important area of an individual’s functioning and is defined in the current Diagnostic and Statistical Manual of Mental Disorders (DSMIV) of the American Psychiatric Association.”

The legislature, in a related statute, has created two exclusions from the definitions of mental disease and mental defect. ORS 161.295(2), which limits the verdict of “guilty except for insanity,” states that

“the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, nor do they include any abnormality constituting solely a personality disorder.”* *³

Petitioner argues that alcohol abuse falls within both of the exclusions in ORS 161.295(2). Therefore, he contends, the board erred in finding that his condition constitutes a mental disease or defect. We address first the claim that alcohol abuse is not a mental disease or defect because it is “an abnormality constituting solely a personality disorder.”

Neither the legislature nor PSRB has defined the term “personality disorder.” However, the Supreme Court has recently addressed its meaning. Mueller v. PSRB, 325 Or 332, 339, 937 P2d 1028 (1997). The court explored the scope of the legislative exclusion by referring to the current edition of the DSM, stating:

“Because the phrase ‘personality disorder’ is a term of art as to which the DSM * * * was the definitive source, this court has referred to the DSM for guidance in cases involving individuals with mental diseases or defects.” Id. at 339.

In Mueller, the court looked at the DSM’s definition and description of organic personality syndrome in conjunction with the manual’s definition of “personality disorder” and determined that the syndrome was not solely a personality disorder. Id. at 342. Our task is to conduct the same inquiry concerning petitioner’s condition.* **⁴

That inquiry leads us to conclude that alcohol abuse, like organic personality syndrome, is not solely a personality disorder. The most compelling support for that conclusion is the fact that the DSM-IV does not include alcohol abuse in its list of personality disorders. As earlier noted, see note 2, Axis II of the DSM-IVs multiaxial assessment framework lists and describes personality disorders. Axis II includes 11 such disorders: paranoid, schizoid, schizotypal, antisocial, borderline, histrionic, narcissistic, avoidant, dependent, obsessive-compulsive and personality disorder not otherwise specified. Alcohol abuse, on the other hand, is listed on Axis I, which describes clinical disorders. The DSM-IV states that Axis I diagnoses like alcohol abuse may accompany diagnoses of single or multiple Axis II personality disorders, but makes clear that the conditions are different in kind and must be diagnosed and recorded differently. DSM-IV at 631-32.

Further, alcohol abuse does not fit neatly within the definition and descriptions of personality disorders in the DSM-IV. In characterizing such disorders, the DSM-IV explains:

“A Personality Disorder is an enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual’s culture, is pervasive and inflexible, had an onset in adolescence or early adulthood, is stable over time, and leads to distress or impairment.” Id. at 629.

Personality disorders are maladaptive and inflexible personality traits. Id. at 630. For example, schizoid personality disorder features “a pervasive pattern of detachment from social relationships and a restricted range of expression of emotions in interpersonal settings,” id. at 638, and patients who exhibit histrionic personality disorder are diagnosed based upon their “pervasive and excessive emotionality and attention-seeking behavior.” Id. at 655.

Alcohol abuse, on the other hand, is not defined in terms of personality traits, as such. Rather, it is a subset of the disorder known as substance abuse, which is a “maladaptive pattern of substance use manifested by recurrent and significant adverse consequences related to the repeated use of substances.” Id. at 182. The defining feature of alcohol abuse is the maladaptive use of alcohol. That behavior is not a “personality trait” in the sense that, for example, emotionality or detachment are. The fact that alcohol abuse is defined and described in terms significantly different from those used to describe personality disorders suggests strongly that it is not such a disorder under the DSM-IV. See Mueller, 325 Or at 342 (definition, characteristics of organic personality syndrome distinguish it from list of personality disorders). Because the DSM-IV informs our interpretation of the statutory text at issue, id. at 339, we conclude that alcohol abuse is not “solely a personality disorder” within the meaning of ORS 161.295(2) and OAR 859-010-0005(6)(b).

We also reject petitioner’s contention that alcohol abuse is not a “mental disease or defect” because it fits within the statutory exclusion for abnormalities “manifested only by repeated criminal or otherwise antisocial conduct.” ORS 161.295(2); OAR 859-010-0005(6)(a). A plain reading of that exclusion demonstrates that it should not apply to petitioner’s condition. Alcohol abuse is diagnosed on the basis of a patient’s maladaptive use of alcohol. DSM-IV at 182. While such excessive drinking by an adult is clearly unhealthy, it is neither per se criminal nor invariably antisocial.

Even were we to conclude that maladaptive alcohol consumption is inherently criminal or antisocial to some degree, petitioner’s condition still would not fit within the exclusion. The exclusion is applicable only if a particular abnormality is “evidenced solely by repeated criminal or otherwise antisocial conduct.” Osborn v. PSRB, 325 Or 135, 148, 934 P2d 391 (1997) (emphasis in original). Osborn involved a diagnosis of pedophilia. The court, while noting that pedophilia was both criminal and antisocial, emphasized that the disorder also has attributes of fantasy and “sexual arousal that is not a normal part of sexual activity.” Id. at 149. Accordingly, because pedophilia “has mental and psychological features” according to the DSM, the court found that it did not fit within the exclusion. Id. at 149-50 (emphasis in original).

The same is true of petitioner’s condition. While alcohol abuse certainly may be accompanied by antisocial and unlawful conduct, it, like pedophilia, also has mental and psychological features. For example, one feature of the disorder is that individuals “may continue to consume alcohol despite the knowledge that continued consumption poses significant social or interpersonal problems for them * * DSM-IV at 196. That feature is certainly present in petitioner’s case; he testified that he repeatedly has tried to stop drinking and that his drinking had caused the deterioration of his marriage and other aspects of his life. Continuation of a behavior in the face of knowledge of the harmful effects of that behavior is at least partly a mental or psychological difficulty. Because that difficulty is an aspect of petitioner’s condition, his condition is not “manifested only by repeated criminal or otherwise antisocial conduct” and is not excluded from the definition of “mental disease or defect” on that basis.

In sum, we conclude that alcohol abuse does not fall within either of the statutory exclusions in ORS 161.295(2). The board did not err in finding that alcohol abuse is a “mental disease or defect.”

Petitioner also asserts that PSRB erred because its decision, that petitioner suffers from a mental disease or defect, is not supported by substantial evidence. The basis of that argument is Dr. Russell’s testimony that, in his opinion, alcohol abuse is not a mental disease or defect. Because no witness testified to the contrary, petitioner argues, the board’s rejection of that opinion was without evidentiary support.

Petitioner’s argument is not well taken. The board’s central factual conclusion, that petitioner suffers from alcohol abuse, clearly was supported by substantial evidence in the form of Dr. Russell’s uncontradicted testimony and several exhibits. See, e.g., Garcia v. Boise Cascade Corp., 309 Or 292, 295, 787 P2d 884 (1990) (“substantial evidence supports a finding when the record, viewed as a whole, permits a reasonable person to make the finding”). It is such factual conclusions that we review for substantial evidence. ORS 183.482(8)(c). Statutory interpretations, on the other hand, are legal conclusions. As such, they are reviewed for errors of law. ORS 183.482(8)(a). PSRB is entitled to disregard witnesses’ interpretations of statutory terms and rely on the DSM-IV, its own expertise or any other source in deciding whether a particular condition is a mental disease or defect, so long as its conclusion is consistent with the legislature’s intent and its own rules.

Affirmed.

1 ORS 161.341(4) provides:

“Any person who has been committed to a state hospital designated by the Mental Health and Developmental Disability Services Division for custody, care and treatment or another person acting on the person’s behalf may apply to the board for an order of discharge or conditional release upon the grounds:

“(a) That the person is no longer affected by mental disease or defect;

“(b) If so affected, that the person no longer presents a substantial danger to others; or

“(c) That the person continues to be affected by a mental disease or defect and would continue to be a danger to others without treatment, but that the person can be adequately controlled and given proper care and treatment if placed on conditional release.”

An applicant for discharge or conditional release under ORS 161.341(4) bears the burden of proving fitness for discharge or release by a preponderance of the evidence. ORS 161.341(5).

2 The DSM-IV is a reference manual published by the American Psychiatric Association. The manual categorizes mental disorders on a multiaxial system; Axis I is composed of clinical disorders, Axis II of personality disorders and mental retardation, Axis III of general medical conditions, Axis IV of psychosocial and environmental problems and Axis V of the global assessment of functioning.

The dissent takes us to task for referring to the DSM-IV, because the Supreme Court in Mueller v. PSRB, 325 Or 332, 937 P2d 1028 (1997), “countenanced reliance on the version on which the legislature relied only,” the DSM-III. 156 Or App at 216 at n 2. However, in Osborn v. PSRB, 325 Or 135, 934 P2d 391 (1997), the court explained that the basis for its focus on the DSM-III was not the legislature’s use of that manual in 1983, but PSRB’s use of the manual when it promulgated the relevant administrative rules in 1987:

“The ‘current’ DSM under OAR 859-10-005(5) and (6) (1987) is the DSM-III, because that is the edition that was in effect at the time that the PSRB adapted the rule.” Osborn, 325 Or at 147 (emphasis added).

Thus, while we agree with the dissent that the Supreme Court focused on the DSM-III in cases like Mueller and Osborn, we disagree with the dissent’s view of why the court did so. Osborn directs us to look at the version of the DSM specified in the current version of the relevant administrative rules, in this case the DSM-IV.

3 Those exclusions are mirrored in the board’s rules at OAR 859-010-0005(6)(a) and (b):

“(a) The term ‘mental disease or defect’ does not include any abnormality manifested solely by repeated or [sic] criminal or otherwise antisocial conduct;

“(b) For offenses committed on or after January 1,1984, the term ‘mental disease or defect’ does not include any abnormality constituting solely a personality disorder.”

4 We respectfully disagree with the dissent’s contention that this case must be resolved by resort to legislative history. We consider ourselves bound by the four 1997 Oregon Supreme Court cases that addressed the question of whether particular diagnoses constituted mental diseases or defects under ORS 161.341(4)(a). Mueller, 325 Or 332 (organic personality disorder); Menzl v. PSRB, 325 Or 159, 934 P2d 431 (1997) (polysubstance abuse); Rios v. PSRB, 325 Or 151, 934 P2d 399 (1997) (pedophilia); Osborn, 325 Or 135 (pedophilia). In each case, the court stated that the resolution of that question depended on the description of the condition in the version of the DSM to which the PSRB rules referred. Mueller, 325 Or at 339; Menzl, 325 Or at 165; Rios, 325 Or at 157-58; Osborn, 325 Or at 143-47. Further, the court in each case resolved the issue on the first level of analysis from PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993) — text and context — without reaching the second level, legislative history. Taken together or individually, Mueller, Menzl, Rios and Osborn lay out the Supreme Court’s analytical framework for addressing the question in this case. We are bound by those cases and the analytical framework they embody. Accordingly, we must respectfully decline the dissent’s invitation to resolve this statutory question at the second level of PGE analysis, when the Supreme Court has four times resolved it at the first level.