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 3444
House Bill 3445
Sponsored by Representative DEVLIN (at the request of Dr. Eugene
W. Minard)
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.
Modifies definition of mentally ill person for purposes of
civil commitment. Requires treating physician to provide certain
information about person civilly committed. Allows investigator
in civil commitment proceeding access to Law Enforcement Data
System. Directs investigator to include pertinent convictions in
investigative report.
Requires at least one examiner in civil commitment hearing to
meet specified qualifications. Allows examiners access to medical
records.
Directs court to include in notice of commitment that person
may not possess or purchase firearms. 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 or court
determines there is reasonable likelihood that person will
constitute danger to others.
Directs Mental Health and Developmental Disability Services
Division to provide Department of State Police with access to
information identifying mentally ill persons committed to custody
of division.
Deletes definition of chronically medically ill.
A BILL FOR AN ACT
Relating to mentally ill persons; creating new provisions;
amending ORS 179.477, 426.005, 426.070, 426.072, 426.074,
426.095, 426.110, 426.120, 426.130, 426.225, 426.234, 426.301,
426.502, 426.504, 426.506 and 426.508; and repealing ORS
426.490, 426.495 and 426.500.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 426.005 is amended to read:
426.005. (1) As used in ORS 426.005 to 426.390, unless the
context requires otherwise:
(a) 'Director of the facility' means a superintendent of a
state mental hospital, the chief of psychiatric services in a
community hospital or the person in charge of treatment and
rehabilitation programs at other treatment facilities.
(b) 'Division' means the Mental Health and Developmental
Disability Services Division.
(c) 'Facility' means a state mental hospital, community
hospital, residential facility, detoxification center, day
treatment facility or such other facility as the Mental Health
and Developmental Disability Services Division determines
suitable, any of which may provide diagnosis and evaluation,
medical care, detoxification, social services or rehabilitation
for committed mentally ill persons.
(d) 'Mentally ill person' means a person who, because of a
mental disorder, is one or more of the following:
(A) Dangerous to self or others.
(B) Unable to provide for basic personal needs and is not
receiving such care as is necessary for health or safety.
{ - (C) A person who: - }
{ - (i) Is chronically mentally ill, as defined in ORS
426.495; - }
{ - (ii) Within the previous three years, has twice been
placed in a hospital or approved inpatient facility by the
division under ORS 426.060; - }
{ - (iii) Is exhibiting symptoms or behavior substantially
similar to those that preceded and led to one or more of the
hospitalizations or inpatient placements referred to in
sub-subparagraph (ii) of this subparagraph; and - }
{ - (iv) Unless treated, will continue, to a reasonable
medical probability, to physically or mentally deteriorate so
that the person will become a person described under either or
both subparagraph (A) or (B) of this paragraph. - }
{ + (C) Gravely disabled due to any brain disorder that
causes severe impairment of the person's:
(i) Memory or perception of reality; or
(ii) Ability to reason, to understand the nature and
significance of the person's mental disability, to understand the
need and probable benefit of treatment, to use the judgment that
is needed to control dangerous behavior or to survive safely
without assistance and supervision in the community. + }
(e) 'Nonhospital facility' means any facility, other than a
hospital, that is approved by the Mental Health and Developmental
Disability Services Division to provide adequate security,
psychiatric, nursing and other services to persons under ORS
426.232 or 426.233.
(f) 'Prehearing period of detention' means a period of time
calculated from the initiation of custody during which a person
may be detained under ORS 426.228, 426.231, 426.232 or 426.233.
(2) Whenever a community mental health and developmental
disabilities program director, director of the facility,
superintendent of a state hospital or administrator of a facility
is referred to, the reference includes any designee such person
has designated to act on the person's behalf in the exercise of
duties.
SECTION 2. ORS 426.072 is amended to read:
426.072. (1) A hospital or nonhospital facility and a treating
physician must comply with the following when an allegedly
mentally ill person is placed in custody at the hospital or
nonhospital facility:
(a) By a warrant of detention under ORS 426.070;
(b) By a peace officer under ORS 426.228 or other person
authorized under ORS 426.233; or
(c) By a physician under ORS 426.232.
(2) In circumstances described under subsection (1) of this
section, the hospital or nonhospital facility and treating
physician must comply with the following:
(a) The person shall receive the care, custody and treatment
required for mental and physical health and safety;
(b) The treating physician shall report any care, custody and
treatment to the court as required in ORS 426.075;
(c) All methods of treatment, including the prescription and
administration of drugs, shall be the sole responsibility of the
treating physician. However, the person shall not be subject to
electro-shock therapy or unduly hazardous treatment and shall
receive usual and customary treatment in accordance with medical
standards in the community;
(d) The treating physician shall be notified immediately of any
use of mechanical restraints on the person. Every use of a
mechanical restraint and the reasons therefor shall be made a
part of the clinical record of the person over the signature of
the treating physician; { - and - }
(e) The treating physician shall give the person the warning
under ORS 426.123 at times the treating physician determines the
person will reasonably understand the notice. This paragraph only
requires the notice to be given as often as the physician
determines is necessary to assure that the person is given an
opportunity to be aware of the notice { + ; and
(f) The treating physician shall provide comfort information
with or without the consent of the person to the next of kin of
the person or to a significant other person. As used in this
paragraph, 'comfort information' means:
(A) The location and legal status of the person;
(B) Information regarding any civil commitment process,
including the date, time and location of the person's commitment
hearing; and
(C) The location and the time that the person may be
visited + }.
(3) The Mental Health and Developmental Disability Services
Division shall adopt rules necessary to carry out this section,
including rules regarding the content of the medical record
compiled during the current period of custody.
SECTION 3. 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) 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)(D) + }, 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 ORS 426.130 (1)(b)(D) + }. 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 pertinent
convictions that involve violence related to mental illness. + }
(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 4. ORS 426.095 is amended to read:
426.095. The following is applicable to a commitment hearing
held by a court under ORS 426.070:
(1) The hearing may be held in a hospital, the person's home or
in some other place convenient to the court and the allegedly
mentally ill person.
(2) The court shall hold the hearing at the time established
according to the following:
(a) Except as provided by paragraph (b) or (c) of this
subsection, a hearing shall be held five judicial days from the
day a court under ORS 426.070 issues a citation provided under
ORS 426.090.
(b) Except as provided by paragraph (c) of this subsection, if
a person is detained by a warrant of detention under ORS 426.070,
a hearing shall be held within five judicial days of the
commencement of detention.
(c) If requested under this paragraph, the court, for good
cause, may postpone the hearing for not more than five judicial
days in order to allow preparation for the hearing. The court may
make orders for the care and custody of the person during a
postponement as it deems necessary. If a person is detained
before a hearing under ORS 426.070, 426.180, 426.228, 426.232 or
426.233 and the hearing is postponed under this paragraph, the
court, for good cause, may allow the person to be detained during
the postponement if the postponement is requested by the person
or the legal counsel of the person. Any of the following may
request a postponement under this paragraph:
(A) The allegedly mentally ill person.
(B) The legal counsel or guardian of the allegedly mentally ill
person.
(C) The person representing the state's interest.
(3) The allegedly mentally ill person and the person
representing the state's interest shall have the right to
cross-examine all the following:
(a) Witnesses.
(b) The person conducting the investigation.
(c) The examining physicians or other qualified persons
recommended by the Mental Health and Developmental Disability
Services Division who have examined the person.
{ + (4) Examiners appointed by the court under ORS 426.110
may examine witnesses to obtain information needed by the
examiners to advise the court. + }
{ - (4) - } { + (5) + } The provisions of ORS 40.230,
40.235, 40.240 and 40.250 shall not apply to and the court may
consider as evidence any of the following:
(a) Medical records for the current involuntary prehearing
period of detention.
(b) Statements attributed by the maker of the medical records
or the investigation report to witnesses concerning their own
observations in the absence of objection or if such persons are
produced as witnesses at the hearing available for
cross-examination.
(c) The testimony of any treating physicians, nurses or social
workers for the prehearing period of detention. Any treating
physician, nurse or social worker who is subpoenaed as a witness
for the proceeding shall testify as an expert witness under the
provisions of ORS 40.410, 40.415, 40.420 and 40.425 and is
subject to treatment as an expert witness in the payment of
witness fees and costs.
(d) The investigation report prepared under ORS 426.074.
Subject to the following, the investigation report shall be
introduced in evidence:
(A) Introduction of the report under this paragraph does not
require the consent of the allegedly mentally ill person.
(B) Upon objection by any party to the action, the court shall
exclude any part of the investigation report that may be excluded
under the Oregon Evidence Code on grounds other than those set
forth in ORS 40.230, 40.235, 40.240 or 40.250.
(C) Neither the investigation report nor any part thereof shall
be introduced into evidence under this paragraph unless the
investigator is present during the proceeding to be
cross-examined or unless the presence of the investigator is
waived by the allegedly mentally ill person or counsel for the
allegedly mentally ill person.
SECTION 5. ORS 426.110 is amended to read:
426.110. The following requirements relating to the appointment
of examiners for purposes of a hearing under ORS 426.095 apply as
described:
(1) The judge shall appoint one qualified examiner. If
requested, the judge shall appoint one additional qualified
examiner. A request for an additional examiner under this
subsection must be made in writing and must be made by the
allegedly mentally ill person or the attorney for the allegedly
mentally ill person. { + If the judge appoints only one examiner
under this subsection, the examiner shall meet the qualifications
under subsection (2)(b)(A) of this section. + }
(2) To be qualified for purposes of this section, an examiner
must meet all of the following qualifications:
(a) The person must agree to be an examiner.
(b) The person must be one of the following:
(A) A physician licensed by the Board of Medical Examiners for
the State of Oregon who is competent to practice psychiatry as
provided by the Mental Health and Developmental Disability
Services Division by rule.
(B) Certified as a mental health examiner qualified to make
examinations for involuntary commitment proceedings by the Mental
Health and Developmental Disability Services Division. The
division has authority to establish, by rule, requirements for
certification as a mental health examiner for purposes of this
subparagraph.
(3) The cost of examiners under this section shall be paid as
provided under ORS 426.250.
SECTION 6. 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.
(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. { + Medical records containing mental
status evaluations, diagnoses and all medications administered to
the person shall be available to the examiners and the court at
the time of the commitment hearing. + } 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 7. 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.
{ + (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) May order the 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. + }
{ - (D) - } { + (E) + } 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. { + Except as provided in
subsection (1)(b)(D) 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.
{ + (4) The Mental Health and Developmental Disability
Services Division shall provide the Department of State Police
with direct electronic access to information from the division's
database of information that identifies persons subject to a
current order of commitment under ORS 426.130 or placed in
outpatient commitment under ORS 426.127. The department and the
division shall enter into an agreement describing the access to
information under this subsection. Only law enforcement personnel
may access information under this subsection.
(5) The information that may be accessed under subsection (4)
of this section 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
approved by the Mental Health and Developmental Disability
Services Division. + }
SECTION 8. 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)(D), + } 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 9. ORS 426.070 is amended to read:
426.070. (1) Any of the following may initiate commitment
procedures under this section by giving the notice described
under subsection (2) of this section:
(a) Two persons;
(b) The county health officer; or
(c) Any magistrate.
(2) For purposes of subsection (1) of this section, the notice
must comply with the following:
(a) It must be in writing under oath;
(b) It must be given to the community mental health and
developmental disabilities program director or a designee of the
director in the county where the allegedly mentally ill person
resides;
(c) It must state that a person within the county other than
the person giving the notice is a mentally ill person and is in
need of treatment, care or custody;
(d) If the commitment proceeding is initiated by two persons
under subsection (1)(a) of this section, it may include a request
that the court notify the two persons:
(A) Of the issuance or nonissuance of a warrant under this
section; or
(B) Of the court's determination under ORS 426.130 (1); and
(e) If the notice contains a request under paragraph (d) of
this subsection, it must also include the addresses of the two
persons making the request.
(3) Upon receipt of a notice under subsections (1) and (2) of
this section or when notified by a circuit court that the court
received notice under ORS 426.234, the community mental health
and developmental disabilities program director, or designee of
the director, shall:
(a) Immediately notify the judge of the court having
jurisdiction for that county under ORS 426.060 of the
notification described in subsections (1) and (2) of this
section.
(b) Immediately notify the Mental Health and Developmental
Disability Services Division if commitment is proposed because
the person appears to be a mentally ill person, as defined in ORS
426.005 (1)(d)(C). When such notice is received, the division may
verify, to the extent known by the division, whether or not the
person meets the criteria described in ORS 426.005 (1)(d)(C)
{ - (i) and (ii) - } and so inform the director or designee of
the director.
(c) Initiate an investigation under ORS 426.074 to determine
whether there is probable cause to believe that the person is in
fact a mentally ill person.
(4) Upon completion, a recommendation based upon the
investigation report under ORS 426.074 shall be promptly
submitted to the court. If the community mental health and
developmental disabilities program director determines that
probable cause does not exist to believe that a person released
from detention under ORS 426.234 (2)(c) or (3)(b) is a mentally
ill person, the community mental health and developmental
disabilities program director shall not submit a recommendation
to the court.
(5) When the court receives notice under subsection (3) of this
section:
(a) If the court, following the investigation, concludes that
there is probable cause to believe that the person investigated
is a mentally ill person, it shall, through the issuance of a
citation as provided in ORS 426.090, cause the person to be
brought before it at a time and place as it may direct, for a
hearing under ORS 426.095 to determine whether the person is
mentally ill. The person shall be given the opportunity to appear
voluntarily at the hearing unless the person fails to appear or
unless the person is detained pursuant to paragraph (b) of this
subsection.
(b)(A) The judge may cause the allegedly mentally ill person to
be taken into custody pending the investigation or hearing by
issuing a warrant of detention under this subsection. A judge may
only issue a warrant under this subsection if the court finds
that there is probable cause to believe that failure to take the
person into custody would pose serious harm or danger to the
person or to others.
(B) To cause the custody of a person under this paragraph, the
judge must issue a warrant of detention to the community mental
health and developmental disabilities program director or
designee, the sheriff of the county or designee, directing that
person to take the allegedly mentally ill person into custody and
produce the person at the time and place stated in the warrant.
(C) At the time the person is taken into custody, the person
shall be informed by the community mental health and
developmental disabilities program director, the sheriff or a
designee of the following:
(i) The person's rights with regard to representation by or
appointment of counsel as described in ORS 426.100; and
(ii) The warning under ORS 426.123.
(D) The court may make any orders for the care and custody of
the person prior to the hearing as it considers necessary.
(c) If the notice includes a request under subsection (2)(d)(A)
of this section, the court shall notify the two persons of the
issuance or nonissuance of a warrant under this subsection.
SECTION 10. 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) { + or
(D) + } 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)
{ + or (D) + } 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 11. 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
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 12. ORS 426.301 is amended to read:
426.301. (1) 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 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 13. ORS 426.502 is amended to read:
426.502. As used in ORS 426.502 to 426.508:
{ - (1) 'Chronically mentally ill' has the meaning given that
term in ORS 426.495. - }
{ - (2) - } { + (1) + } 'Community housing' means property
and related equipment that are used or could be used to house
{ - chronically mentally ill - } { + gravely disabled + }
persons. 'Community housing ' includes only multiple-unit
residential housing occupied by only
{ - chronically mentally ill - } { + gravely disabled + }
persons.
{ - (3) - } { + (2) + } 'Construct' means to build,
install, assemble, expand, alter, convert, replace or relocate.
'Construct ' includes to install equipment and to prepare a site.
{ - (4) - } { + (3) + } 'Division' means the Mental Health
and Developmental Disability Services Division.
{ - (5) - } { + (4) + } 'Equipment' means furnishings,
fixtures or appliances that are used or could be used to provide
care in community housing.
{ + (5) 'Gravely disabled' means disabled as described in ORS
426.005 (1)(d)(C). + }
(6) 'Multiple-unit residential housing' means housing that
provides four or more living units and spaces for common use by
the occupants in social and recreational activities. '
Multiple-unit residential housing' may include nonhousing
facilities incidental or appurtenant to the housing that, in the
determination of the division, improve the quality of the
housing.
SECTION 14. ORS 426.504 is amended to read:
426.504. (1) The Mental Health and Developmental Disability
Services Division may, through contract or otherwise, acquire,
purchase, receive, hold, exchange, demolish, construct, lease,
maintain, repair, replace, improve and equip community housing
for the purpose of housing { - chronically mentally ill - }
{ + gravely disabled + } persons.
(2) The division may dispose of community housing acquired
under subsection (1) of this section in a public or private sale,
upon such terms and conditions as the division considers
advisable to increase the quality and quantity of community
housing available for { - chronically mentally ill - }
{ + gravely disabled + } persons. In any instrument conveying
fee title to community housing, the division shall include
language that restricts the use of the community housing to
housing for { - chronically mentally ill - } { + gravely
disabled + } persons. Such restriction is not a violation of ORS
93.270.
(3) When exercising the authority granted to the division under
this section, the division is not subject to ORS chapter 273 or
ORS 270.100 to 270.190, 276.900 to 276.915 or 279.800 to 279.833.
SECTION 15. ORS 426.506 is amended to read:
426.506. (1) There is created in the State Treasury, separate
and distinct from the General Fund, the Community Mental Health
Housing Fund. All earnings on investments of moneys in the
Community Mental Health Housing Fund shall accrue to the fund.
Interest earned on moneys in the fund shall be credited to the
fund. All moneys in the fund are continuously appropriated to the
Mental Health and Developmental Disability Services Division to
carry out the provisions of ORS 426.504.
(2) The Community Mental Health Housing Fund shall be
administered by the division to provide housing for
{ - chronically mentally ill - } { + gravely disabled + }
persons. As used in this subsection, 'housing' may include
acquisition, maintenance, repair, furnishings and equipment.
(3)(a) There is established within the Community Mental Health
Housing Fund a Community Housing Trust Account. Notwithstanding
the provisions of ORS 270.150 (1) and (3), the division shall
deposit into the account the proceeds, less costs to the state,
received by the division from the sale of F. H. Dammasch State
Hospital property under ORS 426.508. The division may expend, for
the purposes set forth in ORS 426.504, any earnings credited to
the account, including any interest earned on moneys deposited in
the account, and up to five percent of the sale proceeds
initially credited to the account by the Oregon Department of
Administrative Services. At least 95 percent of the sale proceeds
shall remain in the account in perpetuity. Proceeds deposited in
the account may not be commingled with proceeds from the sale of
any surplus real property owned, operated or controlled by the
division and used as a state training center.
(b) Interest earned on moneys in the Community Housing Trust
Account may be expended in the following manner:
(A) Seventy percent of interest earned on deposits in the
account shall be expended for community housing purposes; and
(B) Thirty percent of interest earned on deposits in the
account shall be expended for institutional housing purposes.
(c) Interest earned on deposits in the account shall not be
used to support operating expenses of the division.
(4) The Community Mental Health Housing Fund shall consist of:
(a) Moneys appropriated to the fund by the Legislative
Assembly;
(b) Sale proceeds and earnings from the account under
subsection (3) of this section;
(c) Proceeds from the sale, transfer or lease of any surplus
real property owned, operated or controlled by the division and
used as community housing;
(d) Moneys reallocated from other areas of the division's
budget;
(e) Interest and earnings credited to the fund; and
(f) Gifts of money or other property from any source, to be
used for the purposes of developing housing for { - chronically
mentally ill - } { + gravely disabled + } persons.
(5) The division shall adopt policies:
(a) To establish priorities for the use of moneys in the
Community Mental Health Housing Fund for the sole purpose of
developing housing for { - chronically mentally ill - }
{ + gravely disabled + } persons;
(b) To match public and private moneys available from other
sources for developing housing for { - chronically mentally
ill - } { + gravely disabled + } persons; and
(c) To administer the fund in a manner that will not exceed the
State Treasury's maximum cost per transaction.
(6) The division shall collaborate with the Housing and
Community Services Department to ensure the highest return and
best value for community housing from the Community Mental Health
Housing Fund.
(7) The division shall provide a report of revenues to and
expenditures from the Community Mental Health Housing Fund as
part of its budget submission to the Governor and Legislative
Assembly under ORS chapter 291.
SECTION 16. ORS 426.508 is amended to read:
426.508. (1) Notwithstanding ORS 421.611 to 421.630 or any
actions taken under ORS 421.611 to 421.630, the Department of
Corrections shall transfer the real property known as the F. H.
Dammasch State Hospital and all improvements to the Oregon
Department of Administrative Services to be sold for the benefit
of the Mental Health and Developmental Disability Services
Division.
(2)(a) Notwithstanding ORS 270.100 to 270.190, and except as
provided in subsection (4) of this section, the Oregon Department
of Administrative Services shall sell or otherwise convey the
real property known as the F. H. Dammasch State Hospital in a
manner consistent with the provisions of this section. Conveyance
shall not include transfer to a state agency. The sale price of
the real property shall equal or exceed the fair market value of
the real property. The department shall engage the services of a
licensed real estate broker or real estate organization to
facilitate the sale of the real property.
(b) The Oregon Department of Administrative Services shall
retain from the sale or other conveyance of the real property
those costs incurred by the state in selling or conveying the
real property, including costs incurred by the Department of
Corrections in transferring the real property to the Oregon
Department of Administrative Services. The remaining proceeds
from the sale or other conveyance shall be transferred to the
Community Housing Trust Account created under ORS 426.506 (3).
(3) Redevelopment of the real property formerly occupied by the
F. H. Dammasch State Hospital shall be consistent with the
Dammasch Area Transportation Efficient Land Use Plan developed by
Clackamas County, the City of Wilsonville, the Oregon Department
of Administrative Services, the Department of Land Conservation
and Development, the Department of Transportation, the State
Housing Council, the Mental Health and Developmental Disability
Services Division and the Division of State Lands.
(4) The Oregon Department of Administrative Services shall
reserve from the sale of the real property under subsection (2)
of this section not more than 10 acres. The real property
reserved from sale shall be transferred to the Mental Health and
Developmental Disability Services Division for use by the
division to develop community housing for { - chronically
mentally ill - } { + gravely disabled + } persons. The
department and the division shall jointly coordinate with the
City of Wilsonville to identify the real property reserved from
sale under this subsection.
SECTION 17. { + ORS 426.490, 426.495 and 426.500 are
repealed. + }
SECTION 18. { + (1) The amendments to ORS 426.005 and 426.070
by sections 1 and 9 of this 2001 Act apply to any determination
or proceeding regarding whether a person is a mentally ill person
under ORS 426.005 made or commenced on or after the effective
date of this 2001 Act.
(2) The amendments to ORS 426.074 by section 3 of this 2001 Act
apply to investigations initiated on or after the effective date
of this 2001 Act.
(3) The amendments to ORS 426.120, 426.130, 179.477 and 426.301
by sections 6, 7, 8 and 12 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.
(4) The amendments to ORS 426.072 and 426.234 by sections 2 and
11 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.
(5) The amendments to ORS 426.095 and 426.110 by sections 4 and
5 of this 2001 Act apply to commitment hearings held on or after
the effective date of this 2001 Act.
(6) The amendments to ORS 426.225 by section 10 of this 2001
Act apply to a request by a person who has been civilly committed
on or after the effective date of this 2001 Act.
(7) The amendments to ORS 426.502, 426.504, 426.506 and 426.508
by sections 13 to 16 of this 2001 Act do not affect any
obligation arising under ORS 426.502, 426.504, 426.506 and
426.508 (1999 Edition) arising prior to the effective date of
this 2001 Act. Moneys in the Community Mental Health Housing Fund
and Community Housing Trust Account may be spent as necessary to
fulfill obligations arising under ORS 426.502, 426.504, 426.506
and 426.508 (1999 Edition) prior to the effective date of this
2001 Act. + }
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