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 1554
House Bill 2399
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.
Permits court to commit mentally ill person for up to one year
if person has been committed one or more times in preceding three
years and court determines there is reasonable likelihood that
person will not comply with voluntary treatment or if court
determines there is reasonable likelihood that person will
constitute danger to others. Sets standards for court
determination. Sets standards for discharge from long term
treatment.
A BILL FOR AN ACT
Relating to civil commitment; creating new provisions; and
amending ORS 179.477, 426.074, 426.120, 426.130 and 426.301.
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 { + under ORS 426.095, + } the investigation
shall be completed at least 24 hours before the hearing
{ - under ORS 426.095, otherwise - } { + . In other cases, + }
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) For a person who has been committed one or more times
within the three years preceding the investigation or for a
person alleged to be mentally ill and a danger to others, the
investigator shall, if possible, document any involuntary
hospitalizations or related criminal behavior and the
circumstances leading to the involuntary hospitalizations. The
investigator shall attempt to document the person's history of
compliance with voluntary treatment. The investigator shall
recommend whether long term treatment is needed under ORS 426.130
(1)(b)(E). + }
{ - (c) - } { + (d) + } 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) { + or as described in ORS 426.130
(1)(b)(E) + }, the investigator shall be allowed access to
medical records necessary to verify the existence of criteria
described in ORS 426.005 (1)(d)(C) { + or 426.130 (1)(b)(E) + }.
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.
(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 426.120 is amended to read:
426.120. (1) Persons appointed under ORS 426.110 to conduct the
examination shall do the following:
(a) Examine the person as to mental condition;
(b) Initiate the examination process prior to the hearing. Any
failure to comply with this paragraph shall not, in itself,
constitute sufficient grounds to challenge the examination
conducted by an examiner;
(c) Make their separate reports in writing, under oath, to the
court; and
(d) Upon completion of the hearing, file the reports with the
clerk of the court.
(2) The following is a nonexclusive list of requirements
relating to the content of examination reports prepared under
subsection (1) of this section:
(a) If the { - examining persons - } { + examiners + }
find, and show by their reports, that the person examined is a
mentally ill person, the reports shall include a recommendation
as to the type of treatment facility best calculated to help the
person recover from mental illness.
(b) Each report shall also advise the court whether in the
opinion of the examiner the mentally ill person would cooperate
with and benefit from a program of voluntary treatment.
(c) Reports shall contain the information required by the
Mental Health and Developmental Disability Services Division by
rule. The Mental Health and Developmental Disability Services
Division shall adopt rules necessary to carry out this paragraph.
{ + (d) If the person examined has been committed one or more
times in the three years preceding the investigation under ORS
426.074 or if the person examined is alleged to be mentally ill
and a danger to others and the investigator under ORS 426.074 has
recommended a period of commitment longer than 180 days under ORS
426.130 (1)(b)(E), the reports shall advise the court whether, in
the opinion of the examiners, the person examined needs long term
treatment as provided under ORS 426.130 (1)(b)(E). + }
(3) The examiner shall be allowed access to physicians, nurses
or social workers and to medical records compiled during the
current involuntary prehearing period of detention and the
investigation report. Records and communications described in
this subsection and communications related thereto are not
privileged under ORS 40.230, 40.235, 40.240 or 40.250.
SECTION 3. ORS 426.130 is amended to read:
426.130. (1) After hearing all of the evidence, and reviewing
the findings of the { - examining persons - } { +
examiners + }, the court shall determine whether the person
{ + examined + } 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.
{ + (E) May order commitment of the person to the Mental
Health and Developmental Disability Services Division for
treatment for a period up to but not exceeding one year if:
(i) The person has been committed one or more times in the
preceding three years and, in the opinion of the court, there is
a reasonable likelihood that the person will not comply with
voluntary treatment; or
(ii) In the opinion of the court, there is a reasonable
likelihood the person will constitute a danger to others as
demonstrated by past behavior of extreme violent conduct
involving the use or threatened use of a deadly weapon. + }
(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. { + Except as provided in
subsection (1)(b)(E) of this section, + } 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 4. ORS 426.301 is amended to read:
426.301. (1) { + Subject to the provisions of section 6 of
this 2001 Act, + } at the end of the { - 180-day - } period of
commitment { + ordered by the court under ORS 426.130 + }, any
person whose status has not been changed to voluntary shall be
released unless the Mental Health and Developmental Disability
Services Division certifies to the court in the county where the
treating facility is located that the person is still mentally
ill and in need of further treatment. The division, pursuant to
its rules, may delegate to the director of the treating facility
the responsibility for making the certification. The director of
the treating facility shall consult with the community mental
health and developmental disabilities program director of the
county of residence prior to making the certification. If the
certification is made, the person will not be released, but the
director of the treating facility shall immediately issue a copy
of the certification to the person and to the community mental
health and developmental disabilities program director of the
county of residence.
(2) The certification shall be served upon the person by the
director of the facility wherein the person is confined or the
designee of the director. The director of the facility shall
inform the court in writing that service has been made and the
date thereof.
(3) The certification shall advise the person of all the
following:
(a) That the division or facility has requested that commitment
be continued for an additional period of time.
(b) That the person may consult with legal counsel and that
legal counsel will be provided for the person without cost if the
person is unable to afford legal counsel.
(c) That the person may protest this further commitment within
14 days, and if the person does not { + protest, + } commitment
will be continued for an indefinite period of time up to 180
days.
(d) That if the person does protest a further period of
commitment, the person is entitled to a hearing before the court
on whether commitment should be continued.
(e) That the person may protest either orally or in writing by
signing the form accompanying the certification; that the person
is entitled to have a physician or other qualified person as
recommended by the division, other than a member of the staff at
the facility where the person is confined, examine the person and
report to the court the results of the examination.
(f) That the person may subpoena witnesses and offer evidence
on behalf of the person at the hearing.
(g) That if the person is without funds to retain legal counsel
or an examining physician or qualified person as recommended by
the division, the court will appoint legal counsel, a physician
or other qualified person at no cost to the person.
(4) Nothing in subsection (3) of this section requires the
giving of the warning under ORS 426.123.
(5) The person serving the certification shall read and deliver
the certification to the person and ask whether the person
protests a further period of commitment. The person may protest
further commitment either orally or by signing a simple protest
form to be given to the person with the certification. If the
person does not protest a further period of commitment within 14
days of service of the certification, the division or facility
shall so notify the court and the court shall, without further
hearing, order the commitment of the person for an additional
indefinite period of time up to 180 days.
SECTION 5. { + Section 6 of this 2001 Act is added to and made
a part of ORS 426.005 to 426.390. + }
SECTION 6. { + (1) When a mentally ill person is committed
under ORS 426.130 (1)(b)(E) for longer than 180 days, the person
may, after 180 days, request to be discharged from commitment.
(2) Requests for discharge shall be made to the director of the
facility in which the person receives treatment or to the
community mental health and developmental disabilities program
director if the person is placed in an outpatient commitment or
is on a trial visit. The request may be oral or made in writing
by signing a simple request form.
(3) The director of the facility or the community mental health
and developmental disabilities program director shall review the
request for discharge within 20 days after the request is made.
(4) The director of the facility or the community mental health
and developmental disabilities program director shall determine
whether there is probable cause to believe that the person needs
continued supervised care and treatment for a mental disorder.
The following apply:
(a) If the director of the facility or the community mental
health and developmental disabilities program director finds
probable cause to continue the commitment, the commitment shall
continue.
(b) If the director of the facility or the community mental
health and developmental disabilities program director does not
find probable cause to continue the commitment, the director
shall certify to the Mental Health and Developmental Disability
Services Division that the director has reviewed the request and
determined that the person should be discharged from commitment.
(5) Within 30 days after the request for discharge is made:
(a) The division shall discharge the person from commitment; or
(b) The director of the facility or the community mental health
and developmental disabilities program director shall give the
person a written explanation of the denial of the request, inform
the person of the right to appeal as described in subsection (6)
of this section, and of the right to representation by or
appointment of counsel as described in ORS 426.100, and notify
the court of the denial of the request.
(6) The person may appeal a decision to deny the request for
discharge by filing a request for a hearing with the court. The
request for a hearing must be filed within 10 days after the
person receives the denial of the request for discharge.
(7) When the court receives a request for hearing under
subsection (6) of this section, the court shall conduct a hearing
to determine whether the person needs continued treatment and
whether there is a reasonable likelihood the person would not
continue treatment without supervision. The person shall have the
same rights to notice, detention stay, hearing and counsel as the
person would have for a hearing held under ORS 426.095. The court
shall hold the hearing within 15 judicial days after the court
receives the request for hearing.
(8) At the hearing, the court may order the division to
discharge the person from commitment or order the commitment to
be continued. If the person is placed in an outpatient
commitment, the court may continue the placement on the same or
modified conditions or may return the person to the division for
inpatient care and treatment, subject to release at the end of
the commitment period or as otherwise provided in this
chapter. + }
SECTION 7. ORS 179.477 is amended to read:
179.477. (1) If, in the opinion of the superintendent of the
state mental hospital, an inmate or youth offender transferred to
the state mental hospital under ORS 179.475 (1) is { + a + }
mentally ill { + person + }, as defined in ORS 426.005, and
would benefit from the program of the state mental hospital, but
the inmate or youth offender is unable or unwilling to authorize
continued treatment in the state mental hospital, the
superintendent may petition the court in the county where the
hospital is located for a commitment hearing pursuant to ORS
426.070. The hospital shall provide the court an investigation
report comparable to that required under ORS 426.070. Hospital
staff shall not serve as examiners of this person for the court
under ORS 426.110. The inmate or youth offender shall have the
same rights as an allegedly mentally ill person under ORS 426.070
to 426.170. If the person is determined not to be mentally ill,
the inmate or youth offender shall be returned to the referring
institution forthwith. { + Except as provided in ORS 426.130
(1)(b)(E), + } if the inmate or youth offender is determined to
be mentally ill by clear and convincing evidence, the person
shall be committed to the Mental Health and Developmental
Disability Services Division for up to 180 days, with continued
commitment subject to the provisions of ORS 426.301 to 426.307.
Any time spent on commitment under ORS 426.130 or 426.307 or in a
state mental hospital shall be applied against the duration of
the sentence to the custody of the Department of Corrections or
the commitment to a youth correction facility. The Mental Health
and Developmental Disability Services Division shall receive
approval of the Department of Corrections and State Board of
Parole and Post-Prison Supervision prior to placing an inmate on
trial visit under ORS 426.273 and 426.275. The Mental Health and
Developmental Disability Services Division shall receive approval
of the youth correction facility prior to placing a youth
offender on trial visit under ORS 426.273 and 426.275.
(2) If, at any time, the inmate or youth offender is determined
by the hospital superintendent or by the court pursuant to ORS
426.307 to no longer be mentally ill, the person shall be
promptly returned to the referring institution and the commitment
for mental illness terminated.
SECTION 8. { + (1) The amendments to ORS 426.074 by section 1
of this 2001 Act apply to investigations commenced on or after
the effective date of this 2001 Act.
(2) Section 6 of this 2001 Act and the amendments to ORS
179.477, 426.120, 426.130 and 426.301 by sections 2 to 4 and 7 of
this 2001 Act apply to examinations conducted and commitments
ordered after investigations that are commenced on or after the
effective date of this 2001 Act. + }
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