71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1539
A-Engrossed
House Bill 2394
Ordered by the House May 16
Including House Amendments dated May 16
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Joint Interim Judiciary
Committee)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Allows investigator in civil commitment proceeding access to
Law Enforcement Data System. Directs investigator to include
pertinent { + arrests or + } convictions in investigation
report. Directs court to notify mentally ill person committed for
treatment that person may not possess or purchase firearms.
Directs Mental Health and Developmental Disability Services
Division to provide
{ - Department of State Police - } { + Law Enforcement Data
System + } with access to information identifying mentally ill
persons committed to custody of division.
{ + Allows community mental health and developmental
disabilities program director or designee access to Law
Enforcement Data System for specified purposes. + }
A BILL FOR AN ACT
Relating to civil commitment; creating new provisions; and
amending ORS 426.074, 426.130 and 426.233.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 426.074 is amended to read:
426.074. The following is applicable to an investigation
initiated by a community mental health and developmental
disabilities program director, or a designee of the director, as
part of commitment procedures under ORS 426.070 and 426.228 to
426.235:
(1) If the allegedly mentally ill person is held in custody
before the hearing the investigation shall be completed at least
24 hours before the hearing under ORS 426.095, otherwise the
investigation shall comply with the following time schedule:
(a) If the allegedly mentally ill person can be located, the
investigator shall contact the person within three judicial days
from the date the community mental health and developmental
disabilities program director or a designee receives a notice
under ORS 426.070 alleging that the person is mentally ill.
(b) Within 15 days from the date the community mental health
and developmental disabilities program director or a designee
receives a notice under ORS 426.070 alleging that a person is
mentally ill, one of the following shall occur:
(A) The investigation shall be completed and submitted to the
court.
(B) An application for extension shall be made to the court
under paragraph (c) of this subsection.
(c) The community mental health and developmental disabilities
program director, a designee or the investigator may file for an
extension of the time under paragraph (b) of this subsection only
if one of the following occurs:
(A) A treatment option less restrictive than involuntary
in-patient commitment is actively being pursued.
(B) The allegedly mentally ill person cannot be located.
(d) A court may grant an extension under paragraph (c) of this
subsection for a time and upon the terms and conditions the court
considers appropriate.
(2) This subsection establishes a nonexclusive list of
provisions applicable to the content of the investigation, as
follows:
(a) The investigation conducted should, where appropriate,
include an interview or examination of the allegedly mentally ill
person in the home of the person or other place familiar to the
person.
(b) Whether or not the allegedly mentally ill person consents,
the investigation should include interviews with any persons that
the investigator has probable cause to believe have pertinent
information regarding the investigation. If the allegedly
mentally ill person objects to the contact with any person, the
objection shall be noted in the investigator's report.
(c) The investigator shall be allowed access to physicians,
nurses or social workers and to medical records compiled during
the current involuntary prehearing period of detention to
determine probable cause and to develop alternatives to
commitment. If commitment is proposed because the person appears
to be a mentally ill person as defined in ORS 426.005 (1)(d)(C),
the investigator shall be allowed access to medical records
necessary to verify the existence of criteria described in ORS
426.005 (1)(d)(C). The investigator shall include pertinent parts
of the medical record in the investigation report. Records and
communications described in this paragraph and communications
related thereto are not privileged under ORS 40.230, 40.235,
40.240 or 40.250.
{ + (d) The investigator shall have access to the Law
Enforcement Data System. The investigator shall include any
pertinent arrest or conviction in the investigation report. + }
(3) A copy of the investigation report shall be provided as
soon as possible, but in no event later than 24 hours prior to
the hearing, to the allegedly mentally ill person and to that
person's counsel. Copies shall likewise be provided to counsel
assisting the court, to the examiners and to the court for use in
questioning witnesses.
SECTION 2. ORS 426.130 is amended to read:
426.130. (1) After hearing all of the evidence, and reviewing
the findings of the examining persons, the court shall determine
whether the person is mentally ill. If, in the opinion of the
court, the person is:
(a) Not mentally ill, the person shall be discharged forthwith.
(b) Mentally ill based upon clear and convincing evidence, the
court:
(A) Shall order the release of the individual and dismiss the
case if:
(i) The mentally ill person is willing and able to participate
in treatment on a voluntary basis; and
(ii) The court finds that the person will probably do so.
(B) May order conditional release under this subparagraph
subject to the qualifications and requirements under ORS 426.125.
If the court orders conditional release under this subparagraph,
the court shall establish a period of commitment for the
conditional release.
(C) May order commitment of the individual to the Mental Health
and Developmental Disability Services Division for treatment if,
in the opinion of the court, subparagraph (A) or (B) of this
paragraph is not in the best interest of the mentally ill person.
If the court orders commitment under this subparagraph:
(i) The court shall establish a period of commitment.
(ii) The division may place the committed person in outpatient
commitment under ORS 426.127.
{ + (iii) The order shall include notice that the person is
prohibited from purchasing or possessing a firearm as provided in
ORS 166.250 and 166.470. + }
(D) Shall order that the person be prohibited from purchasing
or possessing a firearm if, in the opinion of the court, there is
a reasonable likelihood the person would constitute a danger to
self or others or to the community at large as a result of the
person's mental or psychological state as demonstrated by past
behavior or participation in incidents involving unlawful
violence or threats of unlawful violence, or by reason of a
single incident of extreme, violent, unlawful conduct. When a
court makes an order under this subparagraph, the court shall
cause a copy of the order to be delivered to the sheriff of the
county who will enter the information into the Law Enforcement
Data System.
(2) A court that orders a conditional release or a commitment
under this section shall establish a period of commitment for the
person subject to the order. Any period of commitment ordered for
commitment or conditional release under this section shall be for
a period of time not to exceed 180 days.
(3) If the commitment proceeding was initiated under ORS
426.070 (1)(a) and if the notice included a request under ORS
426.070 (2)(d)(B), the court shall notify the two persons of the
court's determination under subsection (1) of this section.
SECTION 3. { + Section 4 of this 2001 Act is added to and made
a part of ORS 426.005 to 426.390. + }
SECTION 4. { + (1) The Mental Health and Developmental
Disability Services Division shall provide the Law Enforcement
Data System with direct electronic access to information from the
division's database of information identifying persons subject to
a current order of commitment under ORS 426.130 or placed in
outpatient commitment under ORS 426.127. The Law Enforcement Data
System and the division shall enter into an agreement describing
the terms and conditions for access to information under this
subsection. Information that may be accessed under this
subsection is limited to:
(a) Individual identifiers;
(b) The current period of commitment; and
(c) The name of a community mental health and developmental
disabilities program contact if the person is not in a facility
or nonhospital facility.
(2) Information accessed under this section may be used only by
law enforcement personnel under the terms and conditions of a
user agreement adopted by rule by the Department of State Police
under ORS 181.730. + }
SECTION 5. ORS 426.233 is amended to read:
426.233. (1)(a) A community mental health and developmental
disabilities program director operating under ORS 430.610 to
430.695 or a designee thereof, under authorization of a county
governing body, may take one of the actions listed in paragraph
(b) of this subsection when the community mental health and
developmental disabilities program director or designee has
probable cause to believe a person:
(A) Is dangerous to self or to any other person and is in need
of immediate care, custody or treatment for mental illness; or
(B)(i) Is a mentally ill person placed on conditional release
under ORS 426.125, outpatient commitment under ORS 426.127 or
trial visit under ORS 426.273; and
(ii) Is dangerous to self or to any other person or is unable
to provide for basic personal needs and is not receiving the care
that is necessary for health and safety and is in need of
immediate care, custody or treatment for mental illness.
(b) The community mental health and developmental disabilities
program director or designee under the circumstances set out in
paragraph (a) of this subsection may:
(A) Notify a peace officer to take the person into custody and
direct the officer to remove the person to a hospital or
nonhospital facility approved by the Mental Health and
Developmental Disability Services Division;
(B) Authorize involuntary admission of, or, if already
admitted, cause to be involuntarily retained in a nonhospital
facility approved by the division, a person approved for care or
treatment at a nonhospital facility by a physician under ORS
426.232;
(C) Notify a person authorized under subsection (3) of this
section to take the person into custody and direct the authorized
person to remove the person in custody to a hospital or
nonhospital facility approved by the Mental Health and
Developmental Disability Services Division;
(D) Direct a person authorized under subsection (3) of this
section to transport a person in custody from a hospital or a
nonhospital facility approved by the division to another hospital
or nonhospital facility approved by the division as provided
under ORS 426.235; or
(E) Direct a person authorized under subsection (3) of this
section to transport a person in custody from a facility approved
by the division to another facility approved by the division as
provided under ORS 426.060.
{ + (c) For purposes of making a probable cause determination
under this subsection, a community mental health and
developmental disabilities program director or a designee thereof
may have access to the Law Enforcement Data System. + }
(2) A designee under subsection (1) of this section must be
recommended by the community mental health and developmental
disabilities program director, meet the standards established by
rule of the division and be approved by the county governing body
before assuming the authority permitted under subsection (1) of
this section.
(3) The county governing body may, upon recommendation by the
community mental health and developmental disabilities program
director, authorize any person to provide custody and secure
transportation services for a person in custody under ORS
426.228. In authorizing a person under this subsection, the
county governing body shall grant the person the authority to do
the following:
(a) Accept custody from a peace officer of a person in custody
under ORS 426.228;
(b) Take custody of a person upon notification by the community
mental health and developmental disabilities program director
under the provisions of this section;
(c) Remove a person in custody to an approved hospital or
nonhospital facility as directed by the community mental health
and developmental disabilities program director;
(d) Transfer a person in custody to another person authorized
under this subsection or a peace officer;
(e) Transfer a person in custody from a hospital or nonhospital
facility to another hospital facility or nonhospital facility
when directed to do so by the community mental health and
developmental disabilities program director; and
(f) Retain a person in custody at the approved hospital or
nonhospital facility until a physician makes a determination
under ORS 426.232.
(4) A person authorized under subsection (3) of this section
must be recommended by the community mental health and
developmental disabilities program director, meet the standards
established by rule of the division and be approved by the
governing body before assuming the authority granted under this
section.
(5) The costs of transporting a person as authorized under ORS
426.060, 426.228 or 426.235 by a person authorized under
subsection (3) of this section shall be the responsibility of the
county whose peace officer or community mental health and
developmental disabilities program director directs the
authorized person to take custody of a person and to transport
the person to a facility approved by the division, but the county
shall not be responsible for costs that exceed the amount
provided by the state for that transportation. A person
authorized to act under subsection (3) of this section shall
charge the cost of emergency medical transportation to, and
collect that cost from, the person, third party payers or
otherwise legally responsible persons or agencies in the same
manner that costs for the transportation of other persons are
charged and collected.
SECTION 6. { + (1) The amendments to ORS 426.074 by section 1
of this 2001 Act apply to investigations initiated on or after
the effective date of this 2001 Act.
(2) The amendments to ORS 426.130 by section 2 of this 2001
apply to orders issued on or after the effective date of this
2001 Act.
(3) The amendments to ORS 426.233 by section 5 of this 2001 Act
apply to actions taken by a community mental health and
developmental disabilities program director or designee thereof
on or after the effective date of this 2001 Act. + }
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