72nd OREGON LEGISLATIVE ASSEMBLY--2003 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 2328
Senate Bill 402
Sponsored by Senator DEVLIN
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 laws.
A BILL FOR AN ACT
Relating to mentally ill persons; creating new provisions; and
amending ORS 426.005, 426.070 and 426.074.
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) 'Department' means the Department of Human Services.
(b) '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.
(c) 'Facility' means a state mental hospital, community
hospital, residential facility, detoxification center, day
treatment facility or such other facility as the department
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 department 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.
{ + (D) 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 department 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 426.070 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 Department of Human Services if
commitment is proposed because the person appears to be a
mentally ill person, as defined in ORS 426.005 (1)(d)(C) { + or
(D) + }. When such notice is received, the department may verify,
to the extent known by the department, whether or not the person
meets the criteria described in ORS 426.005 (1)(d)(C)(i) and (ii)
{ + or in ORS 426.005 (1)(d)(D) + } 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 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 the investigation shall be completed at least
24 hours before the hearing under ORS 426.095, otherwise the
investigation shall comply with the following time schedule:
(a) If the allegedly mentally ill person can be located, the
investigator shall contact the person within three judicial days
from the date the community mental health and developmental
disabilities program director or a designee receives a notice
under ORS 426.070 alleging that the person is mentally ill.
(b) Within 15 days from the date the community mental health
and developmental disabilities program director or a designee
receives a notice under ORS 426.070 alleging that a person is
mentally ill, one of the following shall occur:
(A) The investigation shall be completed and submitted to the
court.
(B) An application for extension shall be made to the court
under paragraph (c) of this subsection.
(c) The community mental health and developmental disabilities
program director, a designee or the investigator may file for an
extension of the time under paragraph (b) of this subsection only
if one of the following occurs:
(A) A treatment option less restrictive than involuntary
in-patient commitment is actively being pursued.
(B) The allegedly mentally ill person cannot be located.
(d) A court may grant an extension under paragraph (c) of this
subsection for a time and upon the terms and conditions the court
considers appropriate.
(2) This subsection establishes a nonexclusive list of
provisions applicable to the content of the investigation, as
follows:
(a) The investigation conducted should, where appropriate,
include an interview or examination of the allegedly mentally ill
person in the home of the person or other place familiar to the
person.
(b) Whether or not the allegedly mentally ill person consents,
the investigation should include interviews with any persons that
the investigator has probable cause to believe have pertinent
information regarding the investigation. If the allegedly
mentally ill person objects to the contact with any person, the
objection shall be noted in the investigator's report.
(c) The investigator shall be allowed access to physicians,
nurses or social workers and to medical records compiled during
the current involuntary prehearing period of detention to
determine probable cause and to develop alternatives to
commitment. If commitment is proposed because the person appears
to be a mentally ill person as defined in ORS 426.005
(1)(d)(C) { + or (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 (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.
(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. { + (1) The amendments to ORS 426.005 and 426.070
by sections 1 and 2 of this 2003 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 2003 Act.
(2) The amendments to ORS 426.074 by section 3 of this 2003 Act
apply to investigations initiated on or after the effective date
of this 2003 Act. + }
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