71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
Enrolled
House Bill 2398
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Joint Interim Judiciary
Committee)
CHAPTER ................
AN ACT
Relating to civil commitment; creating new provisions; and
amending ORS 426.234 and 426.236.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Section 2 of this 2001 Act is added to and made
a part of ORS 426.005 to 426.390. + }
SECTION 2. { + (1) The provisions of this section apply to the
release of information about a person who is held in custody
either pending a commitment proceeding under ORS 426.070,
426.140, 426.228, 426.232, 426.233 or 426.237 (1)(b) or while
committed or recommitted under ORS 426.005 to 426.390.
(2) Notwithstanding the provisions of ORS 179.495, 179.505 or
192.502 (2) and notwithstanding any other provision of ORS
426.005 to 426.390, a facility or nonhospital facility where a
person is held shall establish procedures for releasing
information as required under subsections (3) and (4) of this
section.
(3)(a) If a person described in subsection (1) of this section
authorizes disclosure as provided in subsection (5) of this
section, upon request of a member of the family of the person, or
any other person designated by the person, a facility or
nonhospital facility where the person is held shall provide the
family member or the designee with the following information:
(A) The person's diagnosis;
(B) The person's prognosis;
(C) The medications prescribed for the person and the side
effects of medications prescribed, if any;
(D) The person's progress;
(E) Information about any civil commitment process, including
the date, time and location of the person's commitment hearing;
and
(F) Where and when the person may be visited.
(b) If a request for information is made under this subsection
and the person described in subsection (1) of this section is
unable to authorize disclosure as provided in subsection (5) of
this section, the person requesting information shall be provided
notice of the presence of the person described in subsection (1)
of this section in any facility or nonhospital facility.
Information shall not be provided under this paragraph if the
physician of the person described in subsection (1) of this
section determines that it would not be in the person's best
Enrolled House Bill 2398 (HB 2398-INTRO) Page 1
interest to provide the information or if providing the
information is prohibited by federal law.
(4) Upon the admission of any person to a facility or
nonhospital facility under ORS 426.005 to 426.390, the facility
or nonhospital facility shall make reasonable attempts to notify
the person's next of kin, or any other person designated by the
person, of the person's admission, unless the person requests
that this information not be provided. The facility or
nonhospital facility shall make reasonable attempts to notify the
person's next of kin, or any other person designated by the
person, of the person's release, transfer, serious illness,
injury or death upon request of the family member or designee,
unless the person requests that this information not be provided.
The person shall be advised by the facility or nonhospital
facility that the person has the right to request that this
information not be provided.
(5) The person who is held in custody shall be notified by the
facility or nonhospital facility that information about the
person has been requested. Except as provided in subsection (3)
of this section, the consent of the person who is held is
required for release of information under subsections (3) and (4)
of this section. If, when initially informed of the request for
information, the person is unable to give voluntary and informed
consent to authorize the release of information, notation of the
attempt shall be made in the person's treatment record and daily
efforts shall be made to secure the person's consent or refusal
of authorization.
(6) Notwithstanding any other provision of this section, an
individual eligible to receive information under subsection (3)
of this section may not receive information unless the individual
first agrees to make no further disclosure of the information.
The agreement may be made orally.
(7) A facility or nonhospital facility that releases
information under subsection (3) or (4) of this section shall:
(a) Notify the person who is held to whom, when and what
information was released; and
(b) Note in the medical record of the person who is held:
(A) The basis for finding that the person gave voluntary and
informed consent;
(B) The oral or written consent of the person who is held;
(C) To whom, when and what information was released;
(D) The agreement to the requirements of subsection (6) of this
section by the person who requested information; and
(E) Any determination made by the person's physician under
subsection (3)(b) of this section regarding the provision of
notice of the presence of the person in any facility or
nonhospital facility.
(8) A facility or nonhospital facility, including the staff of
such facilities and nonhospital facilities, that releases
information under this section or rules adopted under ORS 426.236
may not be held civilly or criminally liable for damages caused
or alleged to be caused by the release of information or the
failure to release information as long as the release was done in
good faith and in compliance with subsections (3) and (4) of this
section or rules adopted under ORS 426.236.
(9) The provisions of subsections (3) and (4) of this section
do not limit the ability or obligation of facilities, nonhospital
facilities, physicians, mental health care providers or licensed
mental health professionals to provide information as otherwise
allowed or required by law. + }
Enrolled House Bill 2398 (HB 2398-INTRO) Page 2
SECTION 3. ORS 426.234 is amended to read:
426.234. (1) At the time a person is admitted to or retained in
a hospital or nonhospital facility under ORS 426.232 or 426.233,
a physician, nurse or qualified mental health professional at the
hospital or nonhospital facility shall:
(a) Inform the person of the person's right to representation
by or appointment of counsel as described in ORS 426.100;
(b) Give the person the warning under ORS 426.123;
(c) Immediately examine the allegedly mentally ill person;
{ + and + }
(d) Set forth, in writing, the condition of the person and the
need for emergency care or treatment { - ; and - }
{ - (e) If the person consents, make every effort to notify
the person's next of kin of the person's location and
condition - } .
(2)(a) At the time the person is admitted to or retained in a
hospital under ORS 426.232, the physician shall contact the
community mental health and developmental disabilities program
director of the county in which the person resides, if the county
of residence is different from the county in which the hospital
is located. The community mental health and developmental
disabilities program director may request that the physician
notify the circuit court in the county in which the person
resides. If the community mental health and developmental
disabilities program director does not make the request
authorized by this paragraph, the physician shall notify,
immediately and in writing, the circuit court in the county in
which the person is hospitalized.
(b) At the time the person is admitted to a hospital under ORS
426.232 after being brought to the hospital by a peace officer
under ORS 426.228, the physician shall contact the community
mental health and developmental disabilities program director of
the county in which the person is hospitalized. The community
mental health and developmental disabilities program director of
the county in which the person is hospitalized may request that
the physician notify the circuit court in the county in which the
person is hospitalized. If the community mental health and
developmental disabilities program director does not make the
request authorized by this paragraph, the physician shall notify,
immediately and in writing, the circuit court in the county in
which the person was taken into custody.
(c) If, at any time prior to the hearing under ORS 426.070 to
426.130, the physician responsible for a person admitted or
retained under ORS 426.232 determines that the person is not
dangerous to self or others and is not in need of emergency care
or treatment for mental illness, the physician may release the
person from the detention authorized by ORS 426.232. The
physician shall immediately notify the circuit court notified
under this subsection and the community mental health and
developmental disabilities program director of the person's
release from detention.
(3)(a) At the time the person is admitted to or retained in a
nonhospital facility under ORS 426.233, the community mental
health and developmental disabilities program director in the
county where the person was taken into custody shall contact the
community mental health and developmental disabilities program
director of the county in which the person resides, if the county
of residence is different from the county in which the person was
taken into custody. The community mental health and developmental
disabilities program director of the county in which the person
Enrolled House Bill 2398 (HB 2398-INTRO) Page 3
resides may request that the community mental health and
developmental disabilities program director of the county in
which the person was taken into custody notify the circuit court
in the county where the person resides. Otherwise, the community
mental health and developmental disabilities program director of
the county in which the person was taken into custody shall
notify, immediately and in writing, the circuit court in the
county in which the person was taken into custody.
(b) If, at any time prior to the hearing under ORS 426.070 to
426.130, a community mental health and developmental disabilities
program director, after consultation with a physician, determines
that a person admitted or retained under ORS 426.233 is not
dangerous to self or others and is not in need of immediate care,
custody or treatment for mental illness, the community mental
health and developmental disabilities program director may
release the person from detention. The community mental health
and developmental disabilities program director shall immediately
notify the circuit court originally notified under paragraph (a)
of this subsection of the person's release from detention.
(4) When the judge of the circuit court receives notice under
subsection (2) or (3) of this section, the judge immediately
shall commence proceedings under ORS 426.070 to 426.130. In a
county having a population of 100,000 or more, and when feasible
in a county with a lesser population, the community mental health
and developmental disabilities program director or designee who
directs the peace officer or other authorized person to take a
person into custody under ORS 426.233 shall not also conduct the
investigation as provided for under ORS 426.074. Except when a
person is being held under ORS 426.237 (1)(b), a person shall not
be held under ORS 426.232 or 426.233 for more than five judicial
days without a hearing being held under ORS 426.070 to 426.130.
(5) When the judge of the circuit court receives notice under
subsection (2)(c) or (3)(b) of this section that a person has
been released, and unless the court receives the recommendation
required by ORS 426.070 (4), the judge shall dismiss the case no
later than 14 days after the date the person was initially
detained.
SECTION 4. ORS 426.236 is amended to read:
426.236. The Mental Health and Developmental Disability
Services Division shall adopt rules necessary to carry out the
provisions of { + section 2 of this 2001 Act and + } ORS 426.228
to 426.238.
SECTION 5. { + Section 2 of this 2001 Act and the amendments
to ORS 426.234 by section 3 of this 2001 Act apply to the release
of information about a person who is held in custody on or after
the effective date of this 2001 Act. + }
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Enrolled House Bill 2398 (HB 2398-INTRO) Page 4
Passed by House May 3, 2001
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate May 30, 2001
...........................................................
President of Senate
Enrolled House Bill 2398 (HB 2398-INTRO) Page 5
Received by Governor:
......M.,............., 2001
Approved:
......M.,............., 2001
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2001
...........................................................
Secretary of State
Enrolled House Bill 2398 (HB 2398-INTRO) Page 6