Chapter 889
AN ACT
SB 328
Relating to juveniles with mental disease or defect; creating new
provisions; and amending ORS 419C.520, 419C.529 and 419C.538.
Be It Enacted by the People of
the State of
SECTION 1. Sections
2 and 6 of this 2007 Act are added to and made a part of ORS 419C.529 to
419C.544.
SECTION 2. The
juvenile panel of the Psychiatric Security Review Board exercises continuing
jurisdiction over a young person committed to, or retained in, a hospital or
facility designated by the Department of Human Services under ORS 419C.529. If
the board determines after review that the placement of a young person in the
particular hospital or facility is so inappropriate as to create a substantial
danger to others, the board may direct the department to place the young person
in a specific type of facility or direct specific care or supervision, but the
actual placement of the young person is the responsibility of the department.
SECTION 3.
ORS 419C.520 is amended to read:
419C.520. As used in ORS
419C.411, 419C.522 to 419C.527 and 419C.529 to 419C.544:
(1) “Conditional release”
includes but is not limited to the monitoring of mental and physical health
treatment.
(2) “Mental disease or
defect” does not include[:]
[(a)] an abnormality:
[(A)] (a) Manifested only by repeated criminal or otherwise
antisocial conduct;
[(B)] (b) Constituting solely a personality disorder; or
[(C)] (c) Constituting solely a conduct disorder[; or].
[(b) A mental defect manifesting in significantly subaverage general
intellectual functioning that is accompanied by significant limitations in
adaptive functioning in at least two areas or characterized by severe and
pervasive impairment manifested during the developmental period.]
(3) “Serious mental
condition” means a condition that requires supervision and treatment services
for the safety of others and is:
(a) A mental illness of
major depression;
(b) A mental illness of
bipolar disorder; or
(c) A mental illness of
psychotic disorder.
SECTION 4.
ORS 419C.529 is amended to read:
419C.529. (1) After the
entry of a jurisdictional order under ORS 419C.411 (2), if the court finds by a
preponderance of the evidence that the young person, at the time of
disposition, has a serious mental condition or has a mental disease or defect
other than a serious mental condition and presents a substantial danger to
others, requiring conditional release or commitment to a hospital or facility
designated on an individual case basis by the Department of Human Services
as provided in subsection (6) of this section, the court shall order the
young person placed under the jurisdiction of the Psychiatric Security Review
Board.
(2) The court shall
determine whether the young person should be committed to a hospital or
facility designated on an individual case basis by the department, as
provided in subsection (6) of this section, or conditionally released
pending a hearing before the juvenile panel of the Psychiatric Security Review
Board as follows:
(a) If the court finds
that the young person is not a proper subject for conditional release, the
court shall order the young person committed to a secure hospital or a
secure intensive community inpatient facility designated on an
individual case basis by the department, as provided in subsection (6)
of this section, for custody, supervision and treatment pending a hearing
before the juvenile panel in accordance with ORS 419C.532, 419C.535, 419C.538,
419C.540 and 419C.542 and shall order the young person placed under the jurisdiction
of the board.
(b) If the court finds
that the young person can be adequately controlled with supervision and
treatment services if conditionally released and that necessary supervision and
treatment services are available, the court may order the young person
conditionally released, subject to those supervisory orders of the court that
are in the best interests of justice and the young person. The court shall
designate a qualified mental health or developmental disabilities
treatment provider or state, county or local agency to supervise the young
person on release, subject to those conditions as the court directs in the
order for conditional release. Prior to the designation, the court shall notify
the qualified mental health or developmental disabilities treatment
provider or agency to whom conditional release is contemplated and provide the
qualified mental health or developmental disabilities treatment provider
or agency an opportunity to be heard before the court. After receiving an order
entered under this paragraph, the qualified mental health or developmental
disabilities treatment provider or agency designated shall assume
supervision of the young person subject to the direction of the juvenile panel.
The qualified mental health or developmental disabilities treatment
provider or agency designated as supervisor shall report in writing no less
than once per month to the juvenile panel concerning the supervised young
person’s compliance with the conditions of release.
(c) For purposes of determining
whether to order commitment to a hospital or facility or conditional release,
the primary concern of the court is the protection of society.
(3) In determining
whether a young person should be conditionally released, the court may order
examinations or evaluations deemed necessary.
(4) Upon placing a young
person on conditional release and ordering the young person placed under the
jurisdiction of the board, the court shall notify the juvenile panel in writing
of the court’s conditional release order, the supervisor designated and all
other conditions of release pending a hearing before the juvenile panel in
accordance with ORS 419C.532, 419C.535, 419C.538, 419C.540 and 419C.542.
(5) When making an order
under this section, the court shall:
(a) Determine whether
the parent or guardian of the young person is able and willing to assist the
young person in obtaining necessary mental health or developmental
disabilities services and is willing to acquiesce in the decisions of the
juvenile panel. If the court finds that the parent or guardian:
(A) Is able and willing
to do so, the court shall order the parent or guardian to sign an irrevocable
consent form in which the parent agrees to any placement decision made by the
juvenile panel.
(B) Is unable or
unwilling to do so, the court shall order that the young person be placed in
the legal custody of the Department of Human Services for the purpose of
obtaining necessary mental health or developmental disabilities
services.
(b) Make specific
findings on whether there is a victim and, if so, whether the victim wishes to
be notified of any board hearings concerning the young person and of any
conditional release, discharge or escape of the young person.
(c) Include in the order
a list of the persons who wish to be notified of any board hearing concerning
the young person.
(d) Determine on the
record the act committed by the young person for which the young person was
found responsible except for insanity.
(e) State on the record
the mental disease or [defense] defect
on which the young person relied for the responsible except for insanity
defense.
(6) When the
department designates a hospital or facility for commitment of a young person
under this section, the department shall take into account the care and
treatment needs of the young person, the resources of the department and the
safety of the public.
SECTION 5.
ORS 419C.538 is amended to read:
419C.538. (1) When the
juvenile panel of the Psychiatric Security Review Board orders a young person
conditionally released under ORS 419C.532 (4), the juvenile panel may designate
a qualified mental health or developmental disabilities treatment
provider or state, county or local agency to supervise the young person on
release subject to those conditions as the juvenile panel directs in the order
for conditional release. Prior to the designation, the juvenile panel shall
notify the qualified mental health or developmental disabilities
treatment provider or agency to whom conditional release is contemplated and
provide the qualified mental health or developmental disabilities
treatment provider or agency an opportunity to be heard before the juvenile
panel. After receiving an order entered under ORS 419C.532 (4), the qualified
mental health or developmental disabilities treatment provider or agency
designated shall assume supervision of the young person pursuant to the
direction of the juvenile panel.
(2) Conditions of
release contained in orders entered under ORS 419C.532 (4) may be modified from
time to time and conditional release may be terminated by order of the juvenile
panel as provided in ORS 419C.532 and 419C.542.
(3)(a) As a condition of
release, the juvenile panel may require the young person to report to any
state, county or local mental health or developmental disabilities
facility for evaluation. Whenever medical, psychiatric or psychological
treatment is recommended, the juvenile panel may order the young person, as a
condition of release, to cooperate with and accept the treatment of the facility.
(b) The facility to
which the young person has been referred for evaluation shall perform the
evaluation and submit a written report of its findings to the juvenile panel.
If the facility finds that treatment of the young person is appropriate, the
facility shall include its recommendations for treatment in the report to the
juvenile panel.
(c) Whenever treatment
is provided by the facility, the facility shall furnish reports to the juvenile
panel on a regular basis concerning the progress of the young person.
(d) The facility shall
comply with any other conditions of release prescribed by order of the juvenile
panel.
(4) If at any time it
appears to the juvenile panel or the chairperson of the juvenile panel that a
young person has violated the terms of conditional release or that the mental
health of the young person has changed, the juvenile panel or the chairperson
of the juvenile panel may order the young person returned to a hospital or
facility designated by the Department of Human Services for evaluation and
treatment. A written order of the juvenile panel, or the chairperson of the
juvenile panel on behalf of the juvenile panel, is sufficient warrant for any
peace officer to take the young person into custody and transport the young
person accordingly. A peace officer shall execute the order, and the young
person shall be returned as soon as practicable to a facility designated by the
department. Within 20 days following the return of the young person to the
facility designated by the department, the juvenile panel shall conduct a
hearing. At a hearing required by this subsection, the state has the burden of
proving the young person’s lack of fitness for conditional release.
(5) The community mental
health and developmental disabilities program director, the director of the
facility providing treatment for the young person on conditional release, a
peace officer or a person responsible for the supervision of a young person on
conditional release may take a young person into custody or request that the
young person be taken into custody if there is reasonable cause to believe the
young person presents a substantial danger to others and that the young person
is in need of immediate custody, supervision and treatment. A young person
taken into custody under this subsection must immediately be transported to a
hospital or facility designated by the department. Within 20 days following the
return of the young person to the facility designated by the department, the
juvenile panel shall conduct a hearing. At a hearing required by this
subsection, the state has the burden of proving the young person’s lack of
fitness for conditional release.
(6)(a) A young person
conditionally released under ORS 419C.532 (4) may apply to the juvenile panel
for discharge from or modification of an order of conditional release on the
ground that the young person no longer has a mental disease or defect or, if
affected by a mental disease or defect other than a serious mental condition,
no longer presents a substantial danger to others and no longer requires
supervision or treatment services. Within 60 days after receiving an
application under this paragraph, the juvenile panel shall conduct a hearing.
At a hearing required by this paragraph, the young person has the burden of
proving the young person’s fitness for discharge or modification of the order
of conditional release. A young person may not apply for discharge or
modification of conditional release more often than once every six months.
(b) Upon application by
any qualified mental health or developmental disabilities treatment
provider or state, county or local agency responsible for supervision or
treatment services pursuant to an order of conditional release, the juvenile
panel shall conduct a hearing to determine if the conditions of release should
be continued, modified or terminated. The application must be accompanied by a
report setting forth the facts supporting the application. At a hearing
required by this paragraph, the state has the burden of proving the young
person’s lack of fitness for discharge or modification of the order of
conditional release.
SECTION 6. (1)
The juvenile panel of the Psychiatric Security Review Board, by rule pursuant
to ORS 183.325 to 183.410 and not inconsistent with law, may implement its
policies and set out its procedure and practice requirements and may promulgate
such interpretive rules as the panel deems necessary or appropriate to carry
out its statutory responsibilities.
(2) The juvenile panel
of the Psychiatric Security Review Board shall adopt rules defining the type of
dangerous behavior that requires the temporary placement of a young person with
mental retardation in a secure hospital or facility.
(3) The juvenile panel
of the Psychiatric Security Review Board shall consult with the Department of
Human Services before issuing proposed rules for public comment and before
adopting rules under this section.
Approved by the Governor August 3, 2007
Filed in the office of Secretary of State August 3, 2007
Effective date January 1, 2008
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