State agency moves to seal records

By Les Zaitz

The Enterprise

A state agency determined to close off records regarding dangerous individuals such as Anthony Montwheeler has quietly used a bureaucratic move to seal documents, its executive director revealed last week.

Oregon’s Psychiatric Security Review Board in February started routinely issuing orders prohibiting disclosure of certain health records it uses to oversee individuals who assert an insanity defense to often violent crimes. The board did so by an administrative action – without notifying the public or the legislators who subsequently considered new legislation to make the health records secret.

The move is one of several state officials have undertaken recently to block public access to mental health records of the Oregon State Hospital.

They were deeply troubled by a state court ruling and an attorney general’s order that in some circumstances doctor’s notes, risk reviews, and violence assessments of state hospital patients were open to the public.

The issue grabbed public attention after Attorney General Ellen Rosenblum’s office ordered the Security Review Board to release selected documents it used as evidence in deciding to release Montwheeler from state control. Montwheeler was placed under state control in 1997 after successfully asserting an insanity defense to charges he kidnapped his then-wife and son.

The records, obtained by the Malheur Enterprise, showed Montwheeler said he faked his mental illness to avoid prison. The documents, which under the new practice would be kept secret, showed state doctors almost from the start suspected he was malingering but for years continued treating him with therapy and medication.

The Security Review Board released Montwheeler in December and he was subsequently charged with aggravated murder, kidnapping and assault.

The Security Review Board initially defied Rosenblum’s disclosure order, suing the Enterprise and seeking a court order that it didn’t have to release its record. Under pressure from Gov. Kate Brown, the agency dropped the suit and released the records. The Security Review Board in settling the lawsuit agreed last week to reimburse the Enterprise for $5,000 in legal expenses.

But by then, the Security Review Board had already acted to ensure no further disclosures would be made. Juliet Britton, board executive director, said that in February she directed that protective orders be issued “for all current cases and new client files.” Britton said the board was concerned disclosure of records would violate the federal privacy law governing health records, known best by its shorthand acronym – HIPAA.

“As the board is sworn to uphold all state and federal laws regarding the handling of HIPAA documents in its custody, we implemented an administrative practice,” Britton said. “The board has always had the ability to issue protective orders.”

A protective order restricts access to documents even though they are admitted as exhibits at board hearings. Only the board, its staff, and attorneys can see the documents.

Witnesses, however, often refer to the documents and sometimes read portions of them at the public hearings. The board conducts hearings to consider whether a person in its jurisdiction should be held at the state hospital, released with conditions into the community, or discharged entirely from state control. The decision rests on whether the board finds evidence the patient is mentally ill.

The Oregon Health Authority had gone another route to plug disclosure of state hospital records, seeking help from legislators. The House Health Care Committee earlier this month conducted a 14-minute public hearing on legislation that had been dramatically modified from its original purpose to give state officials their secrecy legislation.

Britton said she had urged state health officials to slow down the effort on House Bill 2836 and opted not to support it.

But the rush was supported by the state’s top executives, including Lynn Saxton, director of the Oregon Health Authority. Her staff wouldn’t answer whether Saxton personally approved the legislative gambit.

Saxton “believes this legislation is necessary to protect the privacy of state hospital patients,” her communications staff said in an email.

“This clarification will better enable state hospital staff to maintain the integrity and dignity of the therapeutic process, give patients the greatest opportunity to successfully return to the community and protect public safety by ensuring open communication with authorized partner agencies,” the email said.

Her staff refused to say whether she has ordered an investigation of Montwheeler’s case. A Security Review Board member at the time of the decision to release Montwheeler said the state should do a “forensic” review.

The legislation supported by Saxton was derailed in the House last week when representatives sent it back for more committee work instead of passing it on to the Senate. A top legislator cited the Enterprise’s report on the legislative machinations as the reason.

“After hearing from many of our colleagues following your coverage, House Democratic leadership asked for the bill to be pulled back to the Rules Committee,” said State Rep. Jennifer Williamson, House majority leader. “There’s clearly an important conversation to have about the need to protect patients’ privacy balanced with what’s in the public interest to disclose.”

State Rep. Mitch Greenlick, chair of the Health Care Committee, said he was ordered by House leaders to send the bill back.

“I expect the bill is dead,” Greenlick said.