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 1552
 
                         House Bill 2397
 
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 as
introduced.
 
  Repeals provisions allowing outpatient commitment of persons
with mental illness.
 
                        A BILL FOR AN ACT
Relating to civil commitment; creating new provisions; amending
  ORS 426.130, 426.225, 426.233, 426.273, 426.275, 426.278 and
  426.280; and repealing ORS 426.127.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + ORS 426.127 is repealed. + }
  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. - }
  (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. ORS 426.225 is amended to read:
  426.225. (1) If any person who has been committed to the Mental
Health and Developmental Disability Services Division under ORS
 { - 426.127 or - }  426.130 (1)(b)(B) or (C) requests, during
this period of commitment, voluntary admission to a state
hospital, the superintendent shall cause the person to be
examined immediately by a physician. If the physician finds the
person to be in need of immediate care or treatment for mental
illness, the person shall be voluntarily admitted upon request of
the person.
  (2) If any person who has been committed to the division under
ORS   { - 426.127 or - }  426.130 (1)(b)(B) or (C) requests,
during this period of commitment, voluntary admission to a
facility approved by the division, the administrator of the
facility shall cause the person to be examined immediately by a
physician. If the physician finds the person to be in need of
immediate care or treatment for mental illness, and the division
grants approval, the person shall be voluntarily admitted upon
request of the person.
  SECTION 4. 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.
  (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 5. ORS 426.273 is amended to read:
  426.273. (1) During a period of commitment of a patient under
ORS 426.130, the Mental Health and Developmental Disability
Services Division may grant a trial visit to the patient for a
period of time and under any conditions the division shall
establish. The division shall only grant a trial visit under this
section if the trial visit is agreed to by the community mental
health and developmental disabilities program director, or the
designee of the director, for the county in which the person
would reside.
  (2) When in the opinion of the division, the committed person
can be appropriately served by outpatient care during the period
of commitment, the outpatient care may be required as a condition
for trial visit for a period which, when added to the inpatient
treatment period, shall not exceed the period of commitment. If
outpatient care is required as a condition for a trial visit, the
conditions shall include a designation of a facility, service or
other provider to provide care or treatment.
  (3) A copy of the conditions for trial visit shall be given to
all of the persons listed in ORS 426.278.
  (4) Any trial visit granted under this section is subject to
the provisions under ORS 426.275.
  (5) The director of the community mental health and
developmental disabilities program, or designee, of the county in
which a person who is on trial visit   { - lives - }
 { + resides + } while on trial visit may modify the conditions
for continued trial visit when such modification is in the best
interest of the person. The director shall send notification of
such changes and the reasons for the changes to all those who
received a copy of the original conditions under ORS 426.278.
  SECTION 6. ORS 426.275 is amended to read:
  426.275. The following are applicable to placements of mentally
ill persons that are made as conditional release under ORS
426.125  { - , outpatient commitments under ORS 426.127 - }  or
trial visits under ORS 426.273 as described:
  (1) If the person responsible under this subsection determines
that the mentally ill person is failing to adhere to the terms
and conditions of the placement, the responsible person shall
notify the court having jurisdiction that the mentally ill person
is not adhering to the terms and conditions of the placement. If
the placement is   { - an outpatient commitment under ORS 426.127
or - }  a trial visit under ORS 426.273, the notifications shall
include a copy of the conditions for the placement. The person
responsible for notifying the court under this subsection is as
follows:
  (a) For conditional releases under ORS 426.125, the guardian,
relative or friend in whose care the mentally ill person is
conditionally released.
    { - (b) For outpatient commitments under ORS 426.127, the
community mental health and developmental disabilities program
director, or designee of the director, of the county in which the
person on outpatient commitment lives. - }
    { - (c) - }   { + (b) + } For trial visits under ORS 426.273,
the community mental health and developmental disabilities
program director, or designee of the director, of the county in
which the person on trial visit is to receive outpatient
treatment.
  (2) On its own motion, the court with jurisdiction of a
mentally ill person on such placement may cause the person to be
brought before it for a hearing to determine whether the person
is or is not adhering to the terms and conditions of the
placement.  The person shall have the same rights with respect to
notice, detention stay, hearing and counsel as for a hearing held
under ORS 426.095. The court shall hold the hearing within five
judicial days of the date the mentally ill person receives notice
under this section. The court may allow postponement and
detention during postponement as provided under ORS 426.095.
  (3) Pursuant to the determination of the court upon hearing
under this section, a person on placement shall either continue
the placement on the same or modified conditions or shall be
returned to the Mental Health and Developmental Disability
Services Division for involuntary care and treatment on an
inpatient basis subject to discharge at the end of the commitment
period or as otherwise provided under this chapter and ORS
430.397 to 430.401.
  (4) If the person on placement is living in a county other than
the county of the court that established the current period of
commitment under ORS 426.130 during which the trial visit
 { - , - }   { + or + } conditional release   { - or outpatient
commitment - }  takes place, the court establishing the current
period of commitment shall transfer jurisdiction to the
appropriate court of the county in which the person is living
while on the placement and the court receiving the transfer shall
accept jurisdiction.
  (5) The court may proceed as provided in ORS 426.307 or this
section when the court:
  (a) Receives notice under ORS 426.070 or 426.228 to 426.235;
and
  (b) Determines that the person is a mentally ill person on
conditional release under ORS 426.125  { - , outpatient
commitment under ORS 426.127 - }  or trial visit under ORS
426.273.
  SECTION 7. ORS 426.278 is amended to read:
  426.278. The following persons shall be given a copy of the
conditions of a placement of a mentally ill person that is made
as
  { - an outpatient commitment under ORS 426.127 or as - }  a
trial visit under ORS 426.273:
  (1) The committed person;
  (2) The community mental health and developmental disabilities
program director, or designee of the director, of the county in
which the committed person is to receive outpatient treatment;
  (3) The director of any facility, service or other provider
designated to provide care or treatment;
  (4) The court of current commitment; and
  (5) The appropriate court of the county in which the committed
person   { - lives - }   { + resides + } during the commitment
period if the person   { - is living - }   { + resides + } in a
different county than the county of the court that made the
current commitment.
  SECTION 8. ORS 426.280 is amended to read:
  426.280. The following limitations on liability and
circumstances are applicable to situations within this chapter
and ORS 430.397 to 430.401:
  (1) None of the following shall in any way be held criminally
or civilly liable for the making of the notification under ORS
426.070, provided the person acts in good faith, on probable
cause and without malice:
  (a) The community mental health and developmental disabilities
program director or designee of the director.
  (b) The two petitioning persons.
  (c) The county health officer.
  (d) Any magistrate.
  (e) Any peace officer or probation officer.
  (f) Any physician attending the allegedly mentally ill person.
  (g) The physician attached to a hospital or institution wherein
the allegedly mentally ill person is a patient.
  (2) The person conducting the investigation under ORS 426.070
and 426.074 shall not be held criminally or civilly liable for
 
conducting the investigation, provided the investigator acts in
good faith, on probable cause and without malice.
  (3) The person representing the state's interest under ORS
426.100 shall not be held criminally or civilly liable for
performing responsibilities under ORS 426.100 as long as the
person acts in good faith and without malice.
  (4) No person appointed under ORS 426.110 to conduct an
examination under ORS 426.120 shall be held criminally or civilly
liable for actions pursuant to ORS 426.120 if the examiner acts
in good faith and without malice.
  (5) No physician, hospital or judge shall be held criminally or
civilly liable for actions pursuant to ORS 426.228, 426.231,
426.232, 426.234 or 426.235 if the physician, hospital or judge
acts in good faith, on probable cause and without malice.
  (6) No peace officer, person authorized under ORS 426.233,
community mental health director or designee, hospital or other
facility, physician or judge shall in any way be held criminally
or civilly liable for actions pursuant to ORS 426.228 to 426.235
if the individual or facility acts in good faith, on probable
cause and without malice.
  (7) Any guardian, relative or friend of a mentally ill person
who assumes responsibility for the mentally ill person under a
conditional release under ORS 426.125 shall not be liable for any
damages that are sustained by any person on account of the
misconduct of the mentally ill person while on conditional
release if the guardian, relative or friend acts in good faith
and without malice.
    { - (8) The persons designated in this subsection shall not
be liable for damages that are sustained by any person or
property on account of the misconduct of a mentally ill person
while the mentally ill person is on outpatient commitment under
ORS 426.127 if the designated person acts without willful and
wanton neglect of duty. This subsection is applicable to all of
the following: - }
    { - (a) The community mental health and developmental
disabilities program director and the designee of the director
for the county in which the committed person resides. - }
    { - (b) The superintendent or director of any staff of any
facility where the mentally ill person receives treatment during
the outpatient commitment. - }
    { - (c) The Assistant Director for Mental Health and
Developmental Disability Services. - }
    { - (d) The physician and the facility granting an outpatient
commitment to a patient. - }
    { - (9) - }   { + (8) + } For trial visits granted under ORS
426.273 and 426.275:
  (a) None of the following shall be liable for a patient's
expenses while on trial visit:
  (A) The physician and the facility granting a trial visit to a
patient;
  (B) The superintendent or director of the facility granting a
trial visit;
  (C) The Assistant Director for Mental Health and Developmental
Disability Services; and
  (D) The chief medical officer of the facility.
  (b) The following persons shall not be liable for damages that
are sustained by any person on account of the misconduct of such
patient while on trial visit if the person acts without willful
and wanton neglect of duty:
  (A) The community mental health and developmental disabilities
program director for the county in which the person resides;
  (B) The superintendent, director or chief medical officer of
any facility granting a trial visit to a patient;
  (C) The physician responsible for the patient's trial visit;
  (D) The Assistant Director for Mental Health and Developmental
Disability Services; or
  (E) The employees and agents of persons listed in this
paragraph.
  SECTION 9.  { + (1) The repeal of ORS 426.127 by section 1 of
this 2001 Act and the amendments to ORS 426.130, 426.225,
426.233, 426.273, 426.275, 426.278 and 426.280 by sections 2 to 8
of this 2001 Act do not apply to any committed person placed in
outpatient commitment prior to the effective date of this 2001
Act.
  (2) If a committed person was placed in outpatient commitment
prior to the effective date of this 2001 Act, the provisions of
ORS 426.127 (1999 Edition), 426.130 (1999 Edition), 426.225 (1999
Edition), 426.233 (1999 Edition), 426.273 (1999 Edition), 426.275
(1999 Edition), 426.278 (1999 Edition) and 426.280 (1999 Edition)
shall apply to the person until the period of outpatient
commitment ends. + }
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