TREATMENT
TITLE 35
MENTAL HEALTH
AND DEVELOPMENTAL DISABILITIES;
ALCOHOL AND
DRUG
Chapter 426. Persons With Mental Illness; Sexually
Dangerous Persons
427. Persons With Intellectual or Developmental
Disabilities
428. Nonresident Persons With Mental Disabilities
430. Mental Health; Developmental Disabilities;
Alcohol and Drug Treatment Programs
_______________
Chapter 426 — Persons
With Mental Illness; Sexually Dangerous Persons
ORS sections in this chapter were
amended or repealed by the Legislative Assembly during its 2012 regular
session. See the table of ORS sections amended or repealed during the 2012
regular session: 2012 A&R Tables
2011 EDITION
MENTALLY ILL AND SEXUALLY DANGEROUS
PERSONS
MENTAL HEALTH; ALCOHOL AND DRUG
TREATMENT
PERSONS WITH MENTAL ILLNESS
(Definitions)
426.005 Definitions
for ORS 426.005 to 426.390
(Hospitals)
426.010 State
hospitals for persons with mental illness
426.020 Superintendent;
chief medical officer
426.060 Commitment
to Oregon Health Authority; powers of authority; placement; transfer
(Commitment Procedure)
426.070 Initiation;
notification required; recommendation to court; citation
426.072 Care
while in custody; responsibilities of treating physician; rules
426.074 Investigation;
procedure; content; report
426.075 Notice
and records of treatment prior to hearing; procedures
426.080 Execution
and return of citation or warrant of detention
426.090 Citation;
service
426.095 Commitment
hearing; postponement; right to cross-examine; admissibility of investigation
report
426.100 Advice
of court; appointment of legal counsel; costs; representation of state’s
interest
426.110 Appointment
of examiners; qualifications; costs
426.120 Examination
report; rules
426.123 Observation
of person in custody; warning; evidence
426.125 Qualifications
and requirements for conditional release
426.127 Outpatient
commitment
426.129 Community
liaison
426.130 Court
determination of mental illness; discharge; release for voluntary treatment;
conditional release; commitment; prohibition relating to firearms; period of
commitment
426.135 Counsel
on appeal; costs of appeal
426.140 Place
of confinement; attendant
426.150 Transportation
to treatment facility
426.155 Release
of information about person held in custody pending commitment proceeding or
while committed or recommitted
426.160 Disclosure
of record of proceeding
426.170 Delivery
of certified copy of record
(Emergency and Voluntary Admissions)
426.180 Emergency
commitment of certain Native Americans
426.190 Admission
on emergency commitment
426.200 Duties
following emergency admission; application for voluntary admission; court
commitment
426.210 Limit
of detention after commitment in emergency proceedings
426.217 Change
of status of committed patient to voluntary patient; effect of change
426.220 Voluntary
admission; leave of absence; notice to parent or guardian
426.223 Retaking
persons in custody of or committed to Oregon Health Authority; assistance of
peace officers and others
426.225 Voluntary
admission to state hospital of committed person; examination by physician
(Emergency Care and Treatment)
426.228 Custody;
authority of peace officers and other persons; transporting to facility;
reports; examination of person
426.231 Physician
hold; when authorized; statement required
426.232 Physician
emergency admission; notice; limit of hold
426.233 Authority
of community mental health program director and of other persons; costs of
transportation
426.234 Duties
of professionals at facility where person admitted; notification; duties of
court
426.235 Transfer
between hospital and nonhospital facilities
426.236 Rules
426.237 Prehearing
detention; duties of community mental health program director; certification
for treatment; court proceedings
426.238 Classifying
facilities
(Costs)
426.241 Payment
of care, custody and treatment costs; denial of payment; rules
426.250 Payment
of costs related to commitment proceedings
426.255 County
to pay costs
(Trial Visits; Conditional Release; Outpatient
Commitment; Early Release)
426.273 Trial
visits
426.275 Effect
of failure to adhere to condition of placement
426.278 Distribution
of copies of conditions for outpatient commitment or trial visit
426.292 Release
prior to expiration of term of commitment
(Competency and Discharge)
426.295 Judicial
determination of competency; restoration of competency
426.297 Payment
of expenses for proceeding under ORS 426.295
426.300 Discharge
of patients; application for public assistance
426.301 Release
of committed patient; certification of continued mental illness; service of
certificate; content; period of further commitment; effect of failure to
protest further commitment
426.303 Effect
of protest of further commitment; advice of court
426.307 Court
hearing; continuance; attorney; examination; determination of mental illness;
order of further commitment; period of commitment
426.309 Effect
of ORS 426.217 and 426.301 to 426.307 on other discharge procedure
(Miscellaneous)
426.310 Reimbursement
of county in case of nonresident patients
426.320 Payment
of certain expenses by the state
426.330 Presentation
and payment of claims
426.335 Limitations
on liability
426.370 Withholding
information obtained in certain commitment or admission investigations
426.380 Availability
of writ of habeas corpus
426.385 Rights
of committed persons
426.390 Construction
426.395 Posting
of statement of rights of committed persons
(Licensing of Persons Who May Order Restraint
or Seclusion)
426.415 Licensing
of persons who may order and oversee use of restraint and seclusion in
facilities providing mental health treatment to individuals under 21 years of
age; rules
COMMUNITY INTEGRATION OF PERSONS WITH
CHRONIC MENTAL ILLNESS
426.490 Policy
426.495 Definitions
for ORS 426.490 to 426.500; rules
426.500 Powers
and duties of Oregon Health Authority; rules
426.502 Definitions
for ORS 426.502 to 426.508
426.504 Power
of Oregon Health Authority to develop community housing for persons with
chronic mental illness; sale of community housing; conditions
426.506 Community
Mental Health Housing Fund; Community Housing Trust Account; report
426.508 Sale
of F. H. Dammasch State Hospital; fair market value; redevelopment of property;
property reserved for community housing
SEXUALLY DANGEROUS PERSONS
426.510 “Sexually
dangerous person” defined
426.650 Voluntary
admission to state institution; rules
426.670 Treatment
programs for sexually dangerous persons
426.675 Determination
of sexually dangerous persons; custody pending sentencing; hearing; sentencing;
rules
426.680 Trial
visits for probationer
PERSONS WITH MENTAL ILLNESS
(Definitions)
426.005 Definitions for ORS 426.005 to
426.390. (1) As used in ORS 426.005 to 426.390,
unless the context requires otherwise:
(a)
“Authority” means the Oregon Health Authority.
(b)
“Community mental health program director” means the director of an entity that
provides the services described in ORS 430.630 (3) to (5).
(c)
“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.
(d)
“Facility” means a state mental hospital, community hospital, residential
facility, detoxification center, day treatment facility or such other facility
as the authority determines suitable, any of which may provide diagnosis and
evaluation, medical care, detoxification, social services or rehabilitation for
committed mentally ill persons.
(e)
“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:
(i)
With a chronic mental illness, as defined in ORS 426.495;
(ii)
Who, within the previous three years, has twice been placed in a hospital or
approved inpatient facility by the authority or the Department of Human
Services under ORS 426.060;
(iii)
Who 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)
Who, 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 subparagraph (A) or (B) of this paragraph or both.
(f)
“Nonhospital facility” means any facility, other than a hospital, that is
approved by the authority to provide adequate security, psychiatric, nursing
and other services to persons under ORS 426.232 or 426.233.
(g)
“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 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. [1961 c.706 §25; 1973 c.838 §1;
1987 c.903 §5; 1989 c.993 §3; 1993 c.484 §11; 2001 c.900 §125; 2007 c.70 §203;
2009 c.595 §381; 2009 c.828 §23; 2011 c.720 §160]
(Hospitals)
426.010 State hospitals for persons with
mental illness. Except as otherwise ordered by
the Oregon Health Authority pursuant to ORS 179.325, the Oregon State Hospital
campuses in Salem, Marion County, and in Junction City, Lane County, and the
Blue Mountain Recovery Center in Pendleton, Umatilla County, shall be used as
state hospitals for the care and treatment of mentally ill persons who are assigned
to the care of such institutions by the authority or who have previously been
committed to such institutions. [Amended by 1955 c.651 §3; 1965 c.339 §23; 1965
c.595 §2; 1983 c.505 §1; 1999 c.983 §6; 2007 c.14 §1; 2009 c.269 §2; 2009 c.595
§382]
426.020 Superintendent; chief medical
officer. (1) The superintendent of a hospital
referred to in ORS 426.010 shall be a person the Oregon Health Authority
considers qualified to administer the hospital. If the superintendent of any
hospital is a physician licensed by the Oregon Medical Board, the
superintendent shall serve as chief medical officer.
(2)
If the superintendent is not a physician, the Director of the Oregon Health
Authority or the designee of the director shall designate a physician to serve
as chief medical officer. The designated chief medical officer may be an
appointed state employee in the unclassified service, a self-employed
contractor or an employee of a public or private entity that contracts with the
authority to provide chief medical officer services. Unless the designated
chief medical officer is specifically appointed as a state employee in the
unclassified service, the designated chief medical officer shall not be deemed
a state employee for purposes of any state statute, rule or policy.
(3)(a)
Notwithstanding any other provision of law, the designated chief medical
officer may supervise physicians who are employed by the hospital or who
provide services at the hospital pursuant to a contract.
(b)
The designated chief medical officer may delegate all or part of the authority
to supervise other physicians at the hospital to a physician who is employed by
the state, a self-employed contractor or an employee of a public or private
entity that contracts with the authority to provide physician services. [Amended
by 1955 c.651 §4; 1969 c.391 §1; 1973 c.807 §2; 1987 c.158 §76; 2003 c.14 §234;
2007 c.71 §116; 2009 c.59 §1; 2009 c.828 §14]
426.030
[Amended by 1955 c.651 §5; 1957 c.43 §1; repealed by 1999 c.983 §7]
426.060 Commitment to Oregon Health
Authority; powers of authority; placement; transfer.
(1) Commitments to the Oregon Health Authority shall be made only by the judge
of a circuit court in a county of this state.
(2)
The following is a nonexclusive list of powers the authority may exercise
concerning the placement of persons committed or persons receiving emergency
care and treatment under ORS 426.070, 426.228 to 426.235 or 426.237:
(a)
In its discretion and for reasons which are satisfactory to the authority, the
authority may direct any court-committed person to the facility best able to
treat the person. The decision of the authority on such matters shall be final.
(b)
At any time, for good cause and in the best interest of the mentally ill
person, the authority may transfer a committed person from one facility to
another. When transferring a person under this paragraph, the authority shall
make the transfer:
(A)
If the transfer is from a facility in one class to a facility of the same
class, as provided by rule of the authority;
(B)
If the transfer is from a facility in one class to a facility in a less
restrictive class, by following the procedures for trial visits under ORS
426.273; and
(C)
If the transfer is from a facility in one class to a facility in a more
restrictive class, by following the procedures under ORS 426.275.
(c)
At any time, for good cause and in the best interest of the mentally ill
person, the authority may transfer a person receiving emergency care and
treatment under ORS 426.070 or 426.228 to 426.235, or intensive treatment under
ORS 426.237, between hospitals and nonhospital facilities approved by the
authority to provide emergency care or treatment as defined by rule of the
authority.
(d)
Pursuant to its rules, the authority may delegate to a community mental health
program director the responsibility for assignment of mentally ill persons to
suitable facilities or transfer between such facilities under conditions which
the authority may define. [Amended by 1955 c.651 §6; 1963 c.254 §1; 1967 c.534 §19;
1973 c.838 §2; 1975 c.690 §1; 1987 c.903 §6; 1993 c.484 §12; 2009 c.595 §384]
(Commitment Procedure)
426.070 Initiation; notification required;
recommendation to court; citation. (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 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 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 Oregon Health Authority if commitment is proposed
because the person appears to be a mentally ill person, as defined in ORS
426.005 (1)(e)(C). When such notice is received, the authority may verify, to
the extent known by the authority, whether or not the person meets the criteria
described in ORS 426.005 (1)(e)(C)(i) and (ii) and so inform the community
mental health program 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 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 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 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 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;
(ii)
The warning under ORS 426.123; and
(iii)
The person’s right, if the community mental health program director, sheriff or
designee reasonably suspects that the person is a foreign national, to
communicate with an official from the consulate of the person’s country. A
community mental health program director, sheriff or designee is not civilly or
criminally liable for failure to provide the information required by this
sub-subparagraph. Failure to provide the information required by this
sub-subparagraph does not in itself constitute grounds for the exclusion of
evidence that would otherwise be admissible in a proceeding.
(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. [Amended by 1957 c.329 §1; 1967 c.534 §20; 1973 c.838 §3;
1975 c.690 §2; 1979 c.408 §1; 1983 c.740 §149; 1987 c.903 §7; 1989 c.993 §4;
1993 c.484 §26; 1995 c.201 §2; 1995 c.498 §1; 2003 c.14 §235; 2003 c.109 §3;
2009 c.595 §385; 2009 c.828 §26]
426.072 Care while in custody;
responsibilities of treating physician; rules.
(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 electroshock 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.
(3)
The Oregon Health Authority 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. [1987 c.903 §9; 1993 c.484 §13; 1997
c.531 §1; 2009 c.595 §386]
426.074 Investigation; procedure; content;
report. The following is applicable to an
investigation initiated by a community mental health 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 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 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 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)(e)(C), the
investigator shall be allowed access to medical records necessary to verify the
existence of criteria described in ORS 426.005 (1)(e)(C). 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. [1987 c.903 §10; 1989 c.993 §5; 1993 c.484 §14; 1997
c.649 §1; 2009 c.595 §387; 2009 c.828 §27]
426.075 Notice and records of treatment
prior to hearing; procedures. This section
establishes procedures that are required to be followed before the hearing if a
court, under ORS 426.070, orders a hearing under ORS 426.095. The following
apply as described:
(1)
The court shall be fully advised of all drugs and other treatment known to have
been administered to the allegedly mentally ill person that may substantially
affect the ability of the person to prepare for or function effectively at the
hearing. The following shall advise the court as required by this subsection:
(a)
When not otherwise provided by paragraph (b) of this subsection, the community
mental health program director or designee.
(b)
When the person has been detained by a warrant of detention under ORS 426.070,
426.180, 426.228, 426.232 or 426.233, the treating physician.
(2)
The court shall appoint examiners under ORS 426.110 sufficiently long before
the hearing so that they may begin their preparation for the hearing. The
records established by the Oregon Health Authority by rule and the
investigation report shall be made available to the examiners at least 24 hours
before the hearing in order that the examiners may review the medical record
and have an opportunity to inquire of the medical personnel concerning the
treatment of the allegedly mentally ill person relating to the detention period
prior to the hearing.
(3)
The medical record described in subsection (2) of this section shall be made
available to counsel for the allegedly mentally ill person at least 24 hours
prior to the hearing.
(4)
When requested by a party to the action, the party’s attorney shall subpoena
physicians who are or have been treating the allegedly mentally ill person. Any
treating physician subpoenaed under this subsection shall be subpoenaed as an
expert witness. [1973 c.838 §8; 1975 c.690 §3; 1979 c.408 §2; 1987 c.903 §12;
1989 c.189 §1; 1993 c.484 §15; 2009 c.595 §388]
426.080 Execution and return of citation
or warrant of detention. The person serving a warrant of
detention or the citation provided for by ORS 426.090 shall, immediately after
service thereof, make a return upon the original warrant or citation showing
the time, place and manner of such service and file it with the clerk of the
court. In executing the warrant of detention or citation, the person has all
the powers provided by ORS 133.235 and 161.235 to 161.245 and may require the
assistance of any peace officer or other person. [Amended by 1971 c.743 §366;
1973 c.836 §348; 1973 c.838 §4a]
426.090 Citation; service.
The judge shall cause a citation to issue to the allegedly mentally ill person
stating the nature of the information filed concerning the person and the
specific reasons the person is believed to be mentally ill. The citation shall
further contain a notice of the time and place of the commitment hearing, the
right to legal counsel, the right to have legal counsel appointed if the person
is unable to afford legal counsel, and, if requested, to have legal counsel
immediately appointed, the right to subpoena witnesses in behalf of the person
to the hearing and other information as the court may direct. The citation
shall be served upon the person by delivering a duly certified copy of the
original thereof to the person in person prior to the hearing. The person shall
have an opportunity to consult with legal counsel prior to being brought before
the court. [Amended by 1957 c.329 §2; 1967 c.459 §1; 1971 c.368 §1; 1973 c.838 §5;
1975 c.690 §4]
426.095 Commitment hearing; postponement;
right to cross-examine; admissibility of investigation report.
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 Oregon
Health Authority who have examined the person.
(4)
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. [1973 c.838 §9; 1975 c.690 §5; 1987 c.903 §13; 1993 c.484 §16;
1997 c.649 §2; 2009 c.595 §389]
426.100 Advice of court; appointment of
legal counsel; costs; representation of state’s interest.
(1) At the time the allegedly mentally ill person is brought before the court,
the court shall advise the person of the following:
(a)
The reason for being brought before the court;
(b)
The nature of the proceedings;
(c)
The possible results of the proceedings;
(d)
The right to subpoena witnesses; and
(e)
The person’s rights regarding representation by or appointment of counsel.
(2)
Subsection (3) of this section establishes the rights of allegedly mentally ill
persons in each of the following circumstances:
(a)
When the person is held by warrant of detention issued under ORS 426.070.
(b)
In commitment hearings under ORS 426.095.
(c)
When the person is detained as provided under ORS 426.228, 426.232 or 426.233.
(d)
In recommitment hearings under ORS 426.307.
(3)
When provided under subsection (2) of this section, an allegedly mentally ill
person has the following rights relating to representation by or appointment of
counsel:
(a)
The right to obtain suitable legal counsel possessing skills and experience
commensurate with the nature of the allegations and complexity of the case
during the proceedings.
(b)
If the person is determined to be financially eligible for appointed counsel at
state expense, the court will appoint legal counsel to represent the person. If
a person is appointed counsel at state expense, payment of expenses and
compensation relating to legal counsel shall be made as provided under ORS
426.250.
(c)
If the allegedly mentally ill person does not request legal counsel, the legal
guardian, relative or friend may request the assistance of suitable legal
counsel on behalf of the person.
(d)
If no request for legal counsel is made, the court shall appoint suitable legal
counsel unless counsel is expressly, knowingly and intelligently refused by the
person.
(e)
If the person is being involuntarily detained before a hearing on the issue of
commitment, the right under paragraph (a) of this subsection to contact an attorney
or under paragraph (b) of this subsection to have an attorney appointed may be
exercised as soon as reasonably possible.
(f)
In all cases suitable legal counsel shall be present at the hearing and may be
present at examination and may examine all witnesses offering testimony, and
otherwise represent the person.
(4)
The responsibility for representing the state’s interest in commitment
proceedings, including, but not limited to, preparation of the state’s case and
appearances at commitment hearings is as follows:
(a)
The Attorney General’s office shall have the responsibility relating to
proceedings initiated by state hospital staff that are any of the following:
(A)
Recommitment proceedings under ORS 426.307; or
(B)
Proceedings under ORS 426.228, 426.232 or 426.233.
(b)
The district attorney if requested to do so by the governing body of the
county.
(c)
In lieu of the district attorney under paragraph (b) of this subsection, a
counsel designated by the governing body of a county shall take the responsibility.
A county governing body may designate counsel to take responsibility under this
paragraph either for single proceedings or for all such proceedings the county
will be obligated to pay for under ORS 426.250. If a county governing body
elects to proceed under this paragraph, the county governing body shall so
notify the district attorney. The expenses of an attorney appointed under this
paragraph shall be paid as provided under ORS 426.250. [Amended by 1967 c.458 §1;
1971 c.368 §2; 1973 c.838 §6; 1975 c.690 §6; 1977 c.259 §1; 1979 c.574 §§1,2;
1979 c.867 §10; 1981 s.s. c.3 §133; 1987 c.903 §14; 1993 c.484 §17; 2001 c.962 §57]
426.110 Appointment of examiners;
qualifications; costs. 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.
(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 Oregon Medical Board who is competent to practice
psychiatry as provided by the Oregon Health Authority by rule.
(B)
Certified as a mental health examiner qualified to make examinations for
involuntary commitment proceedings by the authority. The authority may
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. [Amended by 1973 c.838 §10; 1987 c.158 §77; 1987 c.903 §15; 2009 c.595
§390]
426.120 Examination report; rules.
(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 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 Oregon Health Authority
by rule. The authority 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. 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. [Amended by 1973 c.838 §11;
1975 c.690 §7; 1987 c.903 §16; 1997 c.649 §3; 2009 c.595 §391]
426.123 Observation of person in custody;
warning; evidence. (1) Whenever specifically
required under ORS 426.070, 426.072, 426.180 or 426.234, a person shall be
given a warning that observations of the person by the staff of the facility
where the person is in custody may be used as evidence in subsequent court
proceedings to determine whether the person should be or should continue to be
committed as a mentally ill person.
(2)
The warning described under subsection (1) of this section shall be given both
orally and in writing.
(3)
Failure to give a warning under this section does not in itself constitute
grounds for the exclusion of evidence that would otherwise be admissible in a
proceeding. [1987 c.903 §11; 1993 c.484 §18]
426.125 Qualifications and requirements
for conditional release. The following qualifications,
requirements and other provisions relating to a conditional release under ORS
426.130 apply as described:
(1)
A court may only order conditional release if all of the following occur:
(a)
The conditional release is requested by the legal guardian, relative or friend
of the mentally ill person.
(b)
The person requesting the conditional release requests to be allowed to care
for the mentally ill person during the period of commitment in a place
satisfactory to the judge.
(c)
The person requesting the release establishes all of the following to the
satisfaction of the court:
(A)
Ability to care for the mentally ill person.
(B)
That there are adequate financial resources available for the care of the
mentally ill person.
(2)
If the court determines to allow conditional release, the court shall order
that the mentally ill person be conditionally released and placed in the care
of the requester. The court shall establish any terms and conditions on the
conditional release that the court determines appropriate.
(3)
Any conditional release ordered under this section is subject to the provisions
under ORS 426.275. [1987 c.903 §18]
426.127 Outpatient commitment.
The following provisions are applicable to outpatient commitment under ORS
426.130 as described:
(1)
The Oregon Health Authority may only place a person in an outpatient commitment
if an adequate treatment facility is available.
(2)
Conditions for the outpatient commitment shall be set at the time of the
hearing under ORS 426.095 by the community mental health program director, or a
designee for the director, for the county in which the hearing takes place. The
conditions shall include, but not be limited to, the following:
(a)
Provision for outpatient care.
(b)
A designation of a facility, service or other provider to provide care or
treatment.
(3)
A copy of the conditions shall be given to all of the persons described in ORS
426.278.
(4)
Any outpatient commitment ordered under this section is subject to the
provisions under ORS 426.275.
(5)
The community mental health program director or designee, for the county where
a person is on outpatient commitment, may modify the conditions for outpatient
commitment when a modification is in the best interest of the person. The
community mental health program director or designee shall send notification of
such changes and the reasons for the changes to all those who received a copy
of the original conditions under ORS 426.278. [1987 c.903 §19; 1989 c.171 §52;
2003 c.14 §236; 2009 c.595 §392]
426.129 Community liaison.
The Oregon Health Authority shall employ at least one individual to serve as a
liaison between the authority and communities in which the authority plans to
establish housing for persons conditionally released by the Psychiatric
Security Review Board or for persons with mental illness. [2009 c.809 §1; 2011
c.720 §161]
Note: 426.129
was enacted into law by the Legislative Assembly but was not added to or made a
part of ORS chapter 426 or any series therein by legislative action. See
Preface to Oregon Revised Statutes for further explanation.
426.130 Court determination of mental
illness; discharge; release for voluntary treatment; conditional release;
commitment; prohibition relating to firearms; period of commitment.
(1) After hearing all of the evidence, and reviewing the findings of the
examining persons, the court shall determine whether the person 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 Oregon Health Authority 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 authority 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.
(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. 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. [Amended by 1973 c.838 §12; 1975 c.690 §8; 1979 c.408 §3; 1987 c.903 §17;
1989 c.839 §36; 1993 c.735 §9; 1995 c.498 §2; 2009 c.595 §393]
426.135 Counsel on appeal; costs of
appeal. If a person determined to be mentally
ill as provided in ORS 426.130 appeals the determination or disposition based
thereon, and is determined to be financially eligible for appointed counsel at
state expense, upon request of the person or upon its own motion, the court
shall appoint suitable legal counsel to represent the person. The compensation
for legal counsel and costs and expenses necessary to the appeal shall be
determined and paid by the public defense services executive director as
provided in ORS 135.055 if the circuit court is the appellate court or as
provided in ORS 138.500 if the Court of Appeals or Supreme Court is the
appellate court. The compensation, costs and expenses shall be paid as provided
in ORS 138.500. [1979 c.867 §12; 1981 s.s. c.3 §134; 1985 c.502 §25; 2001 c.962
§58]
426.140 Place of confinement; attendant.
(1) No person, not incarcerated upon a criminal charge, who has been adjudged a
mentally ill person or one against whom commitment proceedings have been
instituted shall be confined in any prison, jail or other enclosure where those
charged with a crime or a violation of a municipal ordinance are incarcerated,
unless the person represents an immediate and serious danger to staff or
physical facilities of a hospital or other facility approved by the Oregon
Health Authority for the care, custody and treatment of the person.
(2)
No allegedly mentally ill person who has been taken into custody shall be
confined, either before or after the commitment hearing, without an attendant
in direct charge of the person; and, if not confined in a community hospital,
the sheriff or community mental health program director having the person in
custody shall select some suitable person to act as attendant in quarters suitable
for the comfortable, safe and humane confinement of the person and approved by
the authority. [Amended by 1973 c.838 §23; 1975 c.690 §9; 1977 c.764 §1; 2009
c.595 §394]
426.150 Transportation to treatment
facility. (1) Upon receipt of the order of
commitment, the Oregon Health Authority or its designee shall take the mentally
ill person into its custody, and insure the safekeeping and proper care of the
person until delivery is made to an assigned treatment facility or its
representative. The representative of the treating facility to which the person
has been assigned, accompanied by any assistants the authority or its designee
may deem necessary, shall proceed to the place where the person is to be
delivered into custody, and upon demand shall be given custody of the mentally
ill person, together with the certified record required by ORS 426.170. The
representative shall issue appropriate receipts therefor and immediately
proceed to transport the committed mentally ill person safely to the facility
to which the person has been assigned by the authority and there make delivery
of the person and the record to the director or a designated employee of the
facility. In taking custody of the person, the authority, its designee, or the
representative of the facility has all the powers provided by ORS 133.225 and
161.255 and may require the assistance of any peace officer or other person.
(2)
The committing judge, upon approval of the examining physicians or other
qualified persons as recommended by the authority and upon request of a
guardian, friend or relative of the mentally ill person, may authorize the
guardian, friend or relative to transport the person to the designated facility
when the committing judge determines that means of transportation would not be
detrimental to the welfare of the mentally ill person or to the public. [Amended
by 1963 c.325 §1; 1973 c.838 §24; 1975 c.690 §10; 2009 c.595 §395]
426.155 Release of information about
person held in custody pending commitment proceeding or while committed or
recommitted. (1) The provisions of this section
apply to the release of information about a person who is held in custody
either pending a commitment proceeding under ORS 426.070, 426.140, 426.228,
426.232, 426.233 or 426.237 (1)(b) or while committed or recommitted under ORS
426.005 to 426.390.
(2)
Notwithstanding the provisions of ORS 179.495, 179.505 or 192.502 (2) and
notwithstanding any other provision of ORS 426.005 to 426.390, a facility or
nonhospital facility where a person is held shall establish procedures for
releasing information as required under subsections (3) and (4) of this
section.
(3)(a)
If a person described in subsection (1) of this section authorizes disclosure
as provided in subsection (5) of this section, upon request of a member of the
family of the person, or any other person designated by the person, a facility
or nonhospital facility where the person is held shall provide the family
member or the designee with the following information:
(A)
The person’s diagnosis;
(B)
The person’s prognosis;
(C)
The medications prescribed for the person and the side effects of medications
prescribed, if any;
(D)
The person’s progress;
(E)
Information about any civil commitment process, including the date, time and
location of the person’s commitment hearing; and
(F)
Where and when the person may be visited.
(b)
If a request for information is made under this subsection and the person
described in subsection (1) of this section is unable to authorize disclosure
as provided in subsection (5) of this section, the person requesting
information shall be provided notice of the presence of the person described in
subsection (1) of this section in any facility or nonhospital facility.
Information shall not be provided under this paragraph if the physician of the
person described in subsection (1) of this section determines that it would not
be in the person’s best interest to provide the information or if providing the
information is prohibited by federal law.
(4)
Upon the admission of any person to a facility or nonhospital facility under
ORS 426.005 to 426.390, the facility or nonhospital facility shall make
reasonable attempts to notify the person’s next of kin, or any other person
designated by the person, of the person’s admission, unless the person requests
that this information not be provided. The facility or nonhospital facility
shall make reasonable attempts to notify the person’s next of kin, or any other
person designated by the person, of the person’s release, transfer, serious
illness, injury or death upon request of the family member or designee, unless
the person requests that this information not be provided. The person shall be
advised by the facility or nonhospital facility that the person has the right
to request that this information not be provided.
(5)
The person who is held in custody shall be notified by the facility or
nonhospital facility that information about the person has been requested.
Except as provided in subsection (3) of this section, the consent of the person
who is held is required for release of information under subsections (3) and
(4) of this section. If, when initially informed of the request for
information, the person is unable to give voluntary and informed consent to
authorize the release of information, notation of the attempt shall be made in
the person’s treatment record and daily efforts shall be made to secure the
person’s consent or refusal of authorization.
(6)
Notwithstanding any other provision of this section, an individual eligible to
receive information under subsection (3) of this section may not receive
information unless the individual first agrees to make no further disclosure of
the information. The agreement may be made orally.
(7)
A facility or nonhospital facility that releases information under subsection
(3) or (4) of this section shall:
(a)
Notify the person who is held to whom, when and what information was released;
and
(b)
Note in the medical record of the person who is held:
(A)
The basis for finding that the person gave voluntary and informed consent;
(B)
The oral or written consent of the person who is held;
(C)
To whom, when and what information was released;
(D)
The agreement to the requirements of subsection (6) of this section by the
person who requested information; and
(E)
Any determination made by the person’s physician under subsection (3)(b) of
this section regarding the provision of notice of the presence of the person in
any facility or nonhospital facility.
(8)
A facility or nonhospital facility, including the staff of such facilities and
nonhospital facilities, that releases information under this section or rules
adopted under ORS 426.236 may not be held civilly or criminally liable for
damages caused or alleged to be caused by the release of information or the
failure to release information as long as the release was done in good faith
and in compliance with subsections (3) and (4) of this section or rules adopted
under ORS 426.236.
(9)
The provisions of subsections (3) and (4) of this section do not limit the
ability or obligation of facilities, nonhospital facilities, physicians, mental
health care providers or licensed mental health professionals to provide
information as otherwise allowed or required by law. [2001 c.481 §2]
Note:
426.155 was added to and made a part of 426.005 to 426.390 by legislative
action but was not added to any other series. See Preface to Oregon Revised
Statutes for further explanation.
426.160 Disclosure of record of
proceeding. (1) The court having jurisdiction over
any proceeding conducted pursuant to ORS 426.005, 426.060 to 426.170, 426.217,
426.228, 426.255 to 426.292, 426.300 to 426.309, 426.385 and 426.395 may not
disclose any part of the record of the proceeding to any person except:
(a)
The court shall, pursuant to rules adopted by the Department of State Police,
transmit the minimum information necessary, as defined in ORS 181.740, to the
Department of State Police for persons described in ORS 181.740 (1)(a) or (b)
to enable the department to access and maintain the information and transmit
the information to the federal government as required under federal law;
(b)
As provided in ORS 426.070 (5)(c), 426.130 (3) or 426.170;
(c)
On request of the person subject to the proceeding;
(d)
On request of the person’s legal representative or the attorney for the person
or the state; or
(e)
Pursuant to court order.
(2)
In any proceeding described in subsection (1) of this section that is before
the Supreme Court or the Court of Appeals, the limitations on disclosure
imposed by this section apply to the appellate court record and to the trial
court record while it is in the appellate court’s custody. The appellate court
may disclose information from the trial or appellate court record in a
decision, as defined in ORS 19.450, provided that the court uses initials, an
alias or some other convention for protecting against public disclosure the
identity of the allegedly mentally ill person. [Amended by 1965 c.420 §1; 1969
c.148 §1; 1973 c.838 §21; 1993 c.223 §11; 1993 c.484 §19; 1995 c.498 §3; 2009
c.826 §2; 2011 c.332 §§1,6a; 2011 c.547 §45]
426.170 Delivery of certified copy of
record. If any person is adjudged mentally ill
and ordered committed to the Oregon Health Authority, a copy of the complete
record in the case, certified to by the court clerk or court administrator,
shall be given to the health officer of the county, or to the sheriff, for
delivery to the director of the facility to which such mentally ill person is
assigned. The record shall include the name, residence, nativity, sex and age
of such mentally ill person and all other information that may be required by
the rules and regulations promulgated by the authority. [Amended by 1973 c.838 §25;
1993 c.223 §12; 2009 c.595 §396]
426.175 [1969
c.371 §1; 1975 c.690 §11; 1977 c.764 §2; 1987 c.903 §20; 1991 c.901 §1;
repealed by 1993 c.484 §27]
(Emergency and Voluntary Admissions)
426.180 Emergency commitment of certain
Native Americans. (1) This section applies to
commitments of a person from a reservation for land-based tribes of Native
Americans when, under federal law, the state does not have jurisdiction of
commitments on the reservation.
(2)
When this section is applicable as provided under subsection (1) of this
section, a person alleged to be mentally ill by affidavit of two other persons
may be admitted to a state hospital for persons with mental illness for
emergency treatment, care and custody, provided such affidavit includes or is
accompanied by all of the following:
(a)
The circumstances constituting the emergency.
(b)
Written application for admission to the hospital, executed in duplicate.
(c)
A certificate to the effect that the person is so mentally ill as to be in need
of immediate hospitalization.
(d)
A medical history, including the name, condition, sex and age of the person.
(e)
The name and address of the nearest relative or legal guardian, if any, of the
person.
(3)
The certificates, applications and medical histories shall be made upon forms
prescribed by the Oregon Health Authority and shall be executed by the county
health officer or by two physicians licensed by the Oregon Medical Board, none
of whom shall be related to the person by blood or marriage.
(4)
When a person is admitted to a state hospital under this section, any physician
treating the person shall give the person the warning under ORS 426.123.
(5)
This section may be applied as provided by agreement with the ruling body of
the reservation. Payment of costs for a commitment made under this section
shall be as provided under ORS 426.250. [Amended by 1953 c.442 §2; 1975 c.690 §12;
1987 c.903 §21; 2007 c.70 §204; 2009 c.595 §397]
426.190 Admission on emergency commitment.
Immediately upon execution of the documents mentioned in ORS 426.180, the
person, together with the documents, shall be transported by the sheriff or
other person on the authorization of the county health officers or deputy to
the state hospital indicated by law to receive such patient. The chief medical
officer of the state hospital may refuse to admit the person unless the chief
medical officer is satisfied from the documents that an emergency exists, and
that the person is so mentally ill as to be in need of immediate
hospitalization. The superintendent shall file such documents in the office of
the hospital, where they shall remain a matter of record. If the superintendent
is satisfied that an emergency exists, and that such person is so mentally ill
as to be in need of immediate hospitalization, the superintendent shall receive
and care for as a patient in the hospital the person named in the documents. [Amended
by 1969 c.391 §2]
426.200 Duties following emergency
admission; application for voluntary admission; court commitment.
Within 48 hours after admission under ORS 426.190, an examination as to the
mental condition of any person so admitted shall be commenced and shall be
conducted as expeditiously as possible by two staff physicians of the state
hospital where the person has been received. If, after completion of the
examination, the physicians certify that the person is so mentally ill as to be
in need of treatment, care or custody, the superintendent shall, if the
superintendent determines that further hospitalization is necessary, within 48
hours thereafter, either obtain from the mentally ill person a signed
application for voluntary admission under the provisions of ORS 426.220 or file
a complaint with the court having jurisdiction under ORS 426.060 in the county
where the hospital is located, requesting a court commitment as provided by law.
If the examining physicians certify that the person is not so mentally ill as
to be in need of treatment, care or custody, the superintendent of the state
hospital shall immediately discharge the person. Costs shall be paid as
provided under ORS 426.250. [Amended by 1963 c.325 §2; 1975 c.690 §13; 1987
c.903 §22]
426.210 Limit of detention after
commitment in emergency proceedings. In no event
shall any person admitted to a state hospital pursuant to the emergency
proceedings provided by ORS 426.180 to 426.200 be detained therein by virtue of
such proceedings for more than five judicial days following admission. The
court, for good cause, may allow a postponement and detention during the
postponement as provided under ORS 426.095. [Amended by 1987 c.903 §23]
426.215 [1965
c.628 §1; 1973 c.838 §32; 1975 c.690 §14; 1977 c.764 §3; 1979 c.408 §4; 1985
c.743 §§1,2,3; 1987 c.368 §1; 1987 c.903 §§24,25; repealed by 1993 c.484 §27]
426.217 Change of status of committed
patient to voluntary patient; effect of change.
At any time after commitment by the court, the person, with the approval of the
Oregon Health Authority or its designee, may change the status of the person to
that of a voluntary patient. Notwithstanding ORS 426.220, any person who alters
status to that of a voluntary patient under this section shall be released from
the treating facility within 72 hours of the request of the person for release.
[1973 c.838 §14; 1975 c.690 §15; 2009 c.595 §398]
426.220 Voluntary admission; leave of
absence; notice to parent or guardian. (1) Pursuant
to rules and regulations promulgated by the Oregon Health Authority, the
superintendent of any state hospital for the treatment and care of persons with
mental illness may admit and hospitalize therein as a patient, any person who
may have a nervous disorder or a mental illness, and who voluntarily has made
written application for such admission. No person under the age of 18 years
shall be admitted as a patient to any such state hospital unless an application
therefor in behalf of the person has been executed by the parent, adult next of
kin or legal guardian of the person. Except when a period of longer
hospitalization has been imposed as a condition of admission, pursuant to rules
and regulations of the authority, no person voluntarily admitted to any state
hospital shall be detained therein more than 72 hours after the person, if at
least 18 years of age, has given notice in writing of a desire to be discharged
therefrom, or, if the patient is under the age of 18 years, after notice in
writing has been given by the parent, adult next of kin or legal guardian of
the person that such parent, adult next of kin or legal guardian desires that
such person be discharged therefrom.
(2)
Any person voluntarily admitted to a state hospital pursuant to this section
may upon application and notice to the superintendent of the hospital
concerned, be granted a temporary leave of absence from the hospital if such
leave, in the opinion of the superintendent, will not interfere with the
successful treatment or examination of the applicant for leave.
(3)
Upon admission or discharge of a minor to or from a state hospital the
superintendent shall immediately notify the parent or guardian. [Amended by
1953 c.127 §2; 1963 c.325 §3; 1967 c.371 §1; 1969 c.273 §1; 2007 c.70 §205;
2009 c.595 §399]
426.222 [1953
c.597 §1; 1961 c.385 §1; 1969 c.391 §3; 1969 c.638 §4; repealed by 1975 c.690 §28]
426.223 Retaking persons in custody of or
committed to Oregon Health Authority; assistance of peace officers and others.
In retaking custody of a mentally ill person who has been committed to the
Oregon Health Authority under ORS 426.130 and who has, without lawful
authority, left the custody of the facility to which the person has been
assigned under ORS 426.060, or in the case of an allegedly mentally ill person
who is in custody under ORS 426.070, 426.095, 426.228 to 426.235 or 426.237 at
a hospital or nonhospital facility and who has, without lawful authority, left
the hospital or nonhospital facility, the facility director or designee has all
the powers provided by ORS 133.225 and 161.255 and may require the assistance
of any peace officer or other person. [1975 c.690 §25; 1993 c.484 §20; 2009
c.595 §400]
426.224 [1953
c.597 §2; 1961 c.385 §2; 1969 c.391 §4; 1969 c.638 §5; repealed by 1975 c.690 §28]
426.225 Voluntary admission to state
hospital of committed person; examination by physician.
(1) If any person who has been committed to the Oregon Health Authority under
ORS 426.127 or 426.130 (1)(b)(B) or (C) 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 authority under ORS 426.127 or
426.130 (1)(b)(B) or (C) requests, during this period of commitment, voluntary
admission to a facility approved by the authority, 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 authority grants approval, the person shall be
voluntarily admitted upon request of the person. [1989 c.993 §2; 2009 c.595 §401]
426.226 [1953
c.597 §3; 1969 c.391 §5; 1969 c.638 §6; repealed by 1975 c.690 §28]
(Emergency Care and Treatment)
426.228 Custody; authority of peace
officers and other persons; transporting to facility; reports; examination of
person. (1) A peace officer may take into
custody a person who the officer has probable cause to believe is dangerous to
self or to any other person and is in need of immediate care, custody or
treatment for mental illness. As directed by the community mental health
program director, a peace officer shall remove a person taken into custody
under this section to the nearest hospital or nonhospital facility approved by
the Oregon Health Authority. The officer shall prepare a written report and
deliver it to the treating physician. The report shall state:
(a)
The reason for custody;
(b)
The date, time and place the person was taken into custody; and
(c)
The name of the community mental health program director and a telephone number
where the director may be reached at all times.
(2)
A peace officer shall take a person into custody when the community mental
health program director, pursuant to ORS 426.233, notifies the peace officer
that the director has probable cause to believe that the person is imminently
dangerous to self or to any other person. As directed by the community mental
health program director, the peace officer shall remove the person to a hospital
or nonhospital facility approved by the authority. The community mental health
program director shall prepare a written report that the peace officer shall
deliver to the treating physician. The report shall state:
(a)
The reason for custody;
(b)
The date, time and place the person was taken into custody; and
(c)
The name of the community mental health program director and a telephone number
where the director may be reached at all times.
(3)
If more than one hour will be required to transport the person to the hospital
or nonhospital facility from the location where the person was taken into
custody, the peace officer shall obtain, if possible, a certificate from a
physician licensed by the Oregon Medical Board stating that the travel will not
be detrimental to the person’s physical health and that the person is dangerous
to self or to any other person and is in need of immediate care or treatment
for mental illness. The physician shall have personally examined the allegedly
mentally ill person within 24 hours prior to signing the certificate.
(4)
When a peace officer or other authorized person, acting under this section,
delivers a person to a hospital or nonhospital facility, a physician licensed
by the Oregon Medical Board shall examine the person immediately. If the
physician finds the person to be in need of emergency care or treatment for
mental illness, the physician shall proceed under ORS 426.232, otherwise the
person shall not be retained in custody. If the person is to be released from custody,
the peace officer or the community mental health program director shall return
the person to the place where the person was taken into custody unless the
person declines that service.
(5)
A peace officer may transfer a person in custody under this section to the
custody of a person authorized by the county governing body under ORS 426.233
(3). The peace officer may meet the authorized person at any location that is
in accordance with ORS 426.140 to effect the transfer. When transferring a
person in custody to an authorized person, the peace officer shall deliver the
report required under subsections (1) and (2) of this section to the authorized
person.
(6)
A person authorized under ORS 426.233 (3) shall take a person into custody when
directed to do so by a peace officer or by a community mental health program
director under ORS 426.233.
(7)
A person authorized under ORS 426.233 (3) shall perform the duties of the peace
officer or the community mental health program director required by this
section and ORS 426.233 if the peace officer or the director has not already
done so.
(8)
A person authorized under ORS 426.233 (3) may transfer a person in custody
under this section to the custody of another person authorized under ORS
426.233 (3) or a peace officer. The authorized person transferring custody may
meet another authorized person or a peace officer at any location that is in
accordance with ORS 426.140 to effect the transfer.
(9)(a)
When a peace officer takes a person into custody under this section, and the
peace officer reasonably suspects that the person is a foreign national, the
peace officer shall inform the person of the person’s right to communicate with
an official from the consulate of the person’s country.
(b)
A peace officer is not civilly or criminally liable for failure to provide the
information required by this subsection. Failure to provide the information
required by this subsection does not in itself constitute grounds for the
exclusion of evidence that would otherwise be admissible in a proceeding. [1993
c.484 §2; 1997 c.531 §2; 2003 c.109 §2; 2009 c.595 §402]
Note:
426.228 to 426.238 were added to and made a part of 426.005 to 426.390 by
legislative action but were not added to any other series. See Preface to
Oregon Revised Statutes for further explanation.
426.230
[Amended by 1955 c.651 §7; repealed by 1957 c.388 §17]
426.231 Physician hold; when authorized;
statement required. (1) A physician licensed by the
Oregon Medical Board may hold a person for transportation to a treatment
facility for up to 12 hours in a health care facility licensed under ORS
chapter 431 and approved by the Oregon Health Authority if:
(a)
The physician believes the person is dangerous to self or to any other person
and is in need of emergency care or treatment for mental illness;
(b)
The physician is not related to the person by blood or marriage; and
(c)
An admitting physician at the receiving facility consents to the transporting.
(2)
Before transporting the person, the physician shall prepare a written statement
that:
(a)
The physician has examined the person within the preceding 12 hours;
(b)
An admitting physician at the receiving facility has consented to the
transporting of the person for examination and admission if appropriate; and
(c)
The physician believes the person is dangerous to self or to any other person
and is in need of emergency care or treatment for mental illness.
(3)
The written statement required by subsection (2) of this section authorizes a
peace officer, a person authorized under ORS 426.233 or the designee of a
community mental health program director to transport a person to the treatment
facility indicated on the statement. [1993 c.484 §3; 1997 c.531 §3; 2009 c.595 §403]
Note: See
note under 426.228.
426.232 Physician emergency admission;
notice; limit of hold. (1) When a physician licensed to
practice medicine by the Oregon Medical Board believes a person who is brought
to a hospital or nonhospital facility by a peace officer under ORS 426.228, a
person authorized under ORS 426.233 or a person who is at a hospital or
nonhospital facility is dangerous to self or to any other person and is in need
of emergency care or treatment for mental illness, the physician may do one of
the following:
(a)
After consulting with a physician or a qualified mental health professional, as
defined by rule of the Oregon Health Authority, detain the person and cause the
person to be admitted or, if the person is already admitted, cause the person
to be retained in a hospital where the physician has admitting privileges or is
on staff. Neither the physician nor the qualified mental health professional
may be related by blood or marriage to the person.
(b)
Approve the person for emergency care or treatment at a nonhospital facility approved
by the authority.
(2)
When approving a person for emergency care or treatment at a nonhospital
facility under this section, the physician shall notify immediately the
community mental health program director in the county where the person was taken
into custody and maintain the person, if the person is being held at a
hospital, for as long as is feasible given the needs of the person for mental
or physical health or safety. However, under no circumstances may the person be
held for longer than five judicial days. [1993 c.484 §4; 1995 c.201 §3; 1997
c.531 §4; 2009 c.595 §404]
Note: See
note under 426.228.
426.233 Authority of community mental
health program director and of other persons; costs of transportation.
(1)(a) A community mental health program director operating under ORS 430.610
to 430.695 or a designee thereof, under authorization of a county governing
body, may take one of the actions listed in paragraph (b) of this subsection
when the community mental health program director or designee has probable
cause to believe a person:
(A)
Is dangerous to self or to any other person and is in need of immediate care,
custody or treatment for mental illness; or
(B)(i)
Is a mentally ill person placed on conditional release under ORS 426.125, outpatient
commitment under ORS 426.127 or trial visit under ORS 426.273; and
(ii)
Is dangerous to self or to any other person or is unable to provide for basic
personal needs and is not receiving the care that is necessary for health and
safety and is in need of immediate care, custody or treatment for mental
illness.
(b)
The community mental health program director or designee under the
circumstances set out in paragraph (a) of this subsection may:
(A)
Notify a peace officer to take the person into custody and direct the officer
to remove the person to a hospital or nonhospital facility approved by the
Oregon Health Authority;
(B)
Authorize involuntary admission of, or, if already admitted, cause to be
involuntarily retained in a nonhospital facility approved by the authority, a
person approved for care or treatment at a nonhospital facility by a physician
under ORS 426.232;
(C)
Notify a person authorized under subsection (3) of this section to take the
person into custody and direct the authorized person to remove the person in
custody to a hospital or nonhospital facility approved by the authority;
(D)
Direct a person authorized under subsection (3) of this section to transport a
person in custody from a hospital or a nonhospital facility approved by the
authority to another hospital or nonhospital facility approved by the authority
as provided under ORS 426.235; or
(E)
Direct a person authorized under subsection (3) of this section to transport a
person in custody from a facility approved by the authority to another facility
approved by the authority as provided under ORS 426.060.
(2)
A designee under subsection (1) of this section must be recommended by the
community mental health program director, meet the standards established by
rule of the authority and be approved by the county governing body before
assuming the authority permitted under subsection (1) of this section.
(3)
The county governing body may, upon recommendation by the community mental
health program director, authorize any person to provide custody and secure
transportation services for a person in custody under ORS 426.228. In
authorizing a person under this subsection, the county governing body shall
grant the person the authority to do the following:
(a)
Accept custody from a peace officer of a person in custody under ORS 426.228;
(b)
Take custody of a person upon notification by the community mental health
program director under the provisions of this section;
(c)
Remove a person in custody to an approved hospital or nonhospital facility as
directed by the community mental health program director;
(d)
Transfer a person in custody to another person authorized under this subsection
or a peace officer;
(e)
Transfer a person in custody from a hospital or nonhospital facility to another
hospital facility or nonhospital facility when directed to do so by the
community mental health program director; and
(f)
Retain a person in custody at the approved hospital or nonhospital facility
until a physician makes a determination under ORS 426.232.
(4)
A person authorized under subsection (3) of this section must be recommended by
the community mental health program director, meet the standards established by
rule of the authority and be approved by the governing body before assuming the
authority granted under this section.
(5)
The costs of transporting a person as authorized under ORS 426.060, 426.228 or
426.235 by a person authorized under subsection (3) of this section shall be
the responsibility of the county whose peace officer or community mental health
program director directs the authorized person to take custody of a person and
to transport the person to a facility approved by the authority, but the county
shall not be responsible for costs that exceed the amount provided by the state
for that transportation. A person authorized to act under subsection (3) of
this section shall charge the cost of emergency medical transportation to, and
collect that cost from, the person, third party payers or otherwise legally
responsible persons or agencies in the same manner that costs for the
transportation of other persons are charged and collected. [1993 c.484 §5; 1997
c.531 §5; 2009 c.595 §405]
Note: See
note under 426.228.
426.234 Duties of professionals at
facility where person admitted; notification; duties of court.
(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;
(d)
Set forth, in writing, the condition of the person and the need for emergency
care or treatment; and
(e)
If the physician, nurse or qualified mental health professional reasonably
suspects that the person is a foreign national, inform the person of the person’s
right to communicate with an official from the consulate of the person’s
country. A physician, nurse or qualified mental health professional is not
civilly or criminally liable for failure to provide the information required by
this paragraph. Failure to provide the information required by this paragraph
does not in itself constitute grounds for the exclusion of evidence that would
otherwise be admissible in a proceeding.
(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 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 program director may request that the physician notify the
circuit court in the county in which the person resides. If the community
mental health 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 program director of the county in
which the person is hospitalized. The community mental health 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 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 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 program director in the county
where the person was taken into custody shall contact the community mental
health 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 program director of the county in
which the person resides may request that the community mental health 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 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 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 program director may release the person
from detention. The community mental health 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
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. [1993 c.484 §6; 1995 c.201 §1; 1997 c.531 §6; 2001 c.481 §3; 2003
c.109 §4; 2009 c.595 §406]
Note: See
note under 426.228.
426.235 Transfer between hospital and
nonhospital facilities. (1) The community mental health
program director may transfer a person in custody under ORS 426.232, 426.233 or
426.237 (1)(b) to a hospital or nonhospital facility approved by the Oregon
Health Authority at any time during the period of detention.
(2)
A person in custody at a hospital may be transferred from the hospital only
with the consent of the treating physician and when the director of a
nonhospital facility approved by the authority agrees to admit the person.
(3)
A person in custody at a nonhospital facility approved by the authority may be
transferred to a hospital approved by the authority only when a physician with
admitting privileges agrees to admit the person.
(4)
In transporting a person between a hospital and nonhospital facility under this
section, the community mental health program director has all the powers
provided in ORS 133.225 and 161.255 and may compel the assistance of any peace
officer or other person.
(5)
When a person is transferred under this section, the community mental health
program director shall notify immediately the court notified under ORS 426.234
(2) or (3) of the fact of the transfer and of the location of the person. [1993
c.484 §7; 2009 c.595 §407]
Note: See
note under 426.228.
426.236 Rules.
The Oregon Health Authority shall adopt rules necessary to carry out the
provisions of ORS 426.155 and 426.228 to 426.238. [1993 c.484 §8; 2001 c.481 §4;
2009 c.595 §408]
Note: See
note under 426.228.
426.237 Prehearing detention; duties of
community mental health program director; certification for treatment; court
proceedings. (1) During a prehearing period of
detention as provided in ORS 426.070, 426.140, 426.232 or 426.233, the
community mental health program director shall do one of the following:
(a)
Recommend, in an investigation report as provided in ORS 426.074, that the
circuit court not proceed further in the matter if the community mental health
program director does not believe the person is a mentally ill person.
(b)
No later than three judicial days after initiation of a prehearing period of
detention as provided in ORS 426.070, 426.140, 426.232 or 426.233, certify the
detained person for a 14-day period of intensive treatment if:
(A)
The community mental health program director and a psychiatrist, as defined by
rule by the Oregon Health Authority, have probable cause to believe the person
is a mentally ill person;
(B)
The community mental health program director in the county where the person
resides verbally approves the arrangements for payment for the services at the
hospital or nonhospital facility; and
(C)
The community mental health program director locates a hospital or nonhospital
facility that:
(i)
Is approved by the authority and the community mental health program director
in the county where the person resides; and
(ii)
Can, in the opinion of the community mental health program director and the
psychiatrist, provide intensive care or treatment for mental illness necessary
and sufficient to meet the emergency psychiatric needs of the person.
(c)
Recommend, in an investigation report as provided in ORS 426.074, that the
circuit court hold a hearing under ORS 426.070 to 426.130 if the community
mental health program director has probable cause to believe the person is a
mentally ill person.
(2)(a)
If the circuit court adopts the recommendation of the community mental health
program director under subsection (1)(a) of this section, the circuit court
shall enter an order releasing the person and dismissing the case. Unless the
person agrees to voluntary treatment, if the person is being detained in a:
(A)
Nonhospital facility, the community mental health program director shall make
discharge plans and insure the discharge of the person.
(B)
Hospital, the treating physician shall make discharge plans and discharge the
person.
(b)
Upon release of the person, the community mental health program director shall
attempt to notify the person’s next of kin if the person consents to the
notification.
(3)(a)
If the detained person is certified for treatment under subsection (1)(b) of
this section, the community mental health program director shall:
(A)
Deliver immediately a certificate to the court having jurisdiction under ORS
426.060; and
(B)
Orally inform the person of the certification and deliver a copy of the
certificate to the person.
(b)
The certificate required by paragraph (a) of this subsection shall include:
(A)
A written statement under oath by the community mental health program director
and the psychiatrist that they have probable cause to believe the person is a
mentally ill person in need of care or treatment for mental illness;
(B)
A treatment plan that describes, in general terms, the types of treatment and
medication to be provided to the person during the 14-day period of intensive
treatment;
(C)
A notice of the person’s right to an attorney and that an attorney will be
appointed by the court or as otherwise obtained under ORS 426.100 (3);
(D)
A notice that the person has a right to request and be provided a hearing under
ORS 426.070 to 426.130 at any time during the 14-day period; and
(E)
The date and time the copy of the certificate was delivered to the person.
(c)
Immediately upon receipt of a certificate under paragraph (a) of this
subsection, the court shall notify the person’s attorney or appoint an attorney
for the person if the person cannot afford one. Within 24 hours of the time the
certificate is delivered to the court, the person’s attorney shall review the
certificate with the person. If the person and the person’s attorney consent to
the certification within one judicial day of the time the certificate is
delivered to the circuit court and, except as provided in subsection (4) of
this section, the court shall postpone the hearing required by ORS 426.070 to
426.130 for 14 days.
(d)
When a person is certified for treatment under subsection (1)(b) of this
section and accepts the certification:
(A)
Except as otherwise provided in this paragraph, 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
electroshock therapy or unduly hazardous treatment and shall receive usual and
customary treatment in accordance with medical standards in the community.
(B)
Except when the person expressly refuses treatment, the treating physician
shall treat the person within the scope of the treatment plan provided the
person under paragraph (b) of this subsection. The person’s refusal of
treatment constitutes sufficient grounds for the community mental health
program director to request a hearing as provided in subsection (4)(a) of this
section.
(C)
If the person is in a hospital and the community mental health program director
locates a nonhospital facility, approved by the authority, that, in the opinion
of the community mental health program director and the treating physician, can
provide care or treatment for mental illness necessary and sufficient to meet
the emergency psychiatric needs of the person, the treating physician shall discharge
the person from the hospital and the community mental health program director
shall remove the person to the nonhospital facility for the remainder of the
14-day intensive treatment period. If, however, in the opinion of the treating
physician, the person’s condition requires the person to receive medical care
or treatment, the physician shall retain the person in the hospital.
(D)
If the person is in a nonhospital facility, the community mental health program
director shall transfer the person to a hospital approved by the authority
under the following conditions:
(i)
If, in the opinion of a physician, the person’s condition requires the person
to receive medical care or treatment in a hospital; and
(ii)
The physician agrees to admit the person to a hospital, approved by the
authority, where the physician has admitting privileges.
(E)
If the person is transferred as provided in subparagraph (C) or (D) of this
paragraph, the community mental health program director shall notify the
circuit court, in the county where the certificate was filed, of the location
of the person. The person may appeal the transfer as provided by rules of the
authority.
(e)
If the person is in a hospital, the treating physician may discharge the person
at any time during the 14-day period. The treating physician shall confer with
the community mental health program director and the person’s next of kin, if
the person consents to the consultation, prior to discharging the person.
Immediately upon discharge of the person, the treating physician shall notify
the court in the county in which the certificate was filed initially.
(f)
If the person is in a nonhospital facility, the community mental health program
director may discharge the person at any time during the 14-day period. The
community mental health program director shall consult with the treating
physician and the person’s next of kin, if the person consents to the
consultation, prior to discharging the person. Immediately upon discharge of
the person, the community mental health program director shall notify the court
in the county in which the certificate was filed initially.
(g)
The person may agree to voluntary treatment at any time during the 14-day
period. When a person agrees to voluntary treatment under this paragraph, the
community mental health program director immediately shall notify the court in
the county in which the certificate was filed initially.
(h)
A person consenting to 14 days of treatment under subsection (3)(c) of this
section shall not be held longer than 14 days from the time of consenting
without a hearing as provided in ORS 426.070 to 426.130.
(i)
When the court receives notification under paragraph (e), (f) or (g) of this
subsection, the court shall dismiss the case.
(4)
The judge of the circuit court shall immediately commence proceedings under ORS
426.070 to 426.130 when:
(a)
The person consenting to 14 days of treatment or the community mental health
program director requests a hearing. The hearing shall be held without
unreasonable delay. In no case shall the person be held in a hospital or
nonhospital facility longer than five judicial days after the request for a
hearing is made without a hearing being held under ORS 426.070 to 426.130.
(b)
The community mental health program director acts under subsection (1)(c) of
this section. In no case shall the person be held longer than five judicial
days without a hearing under this subsection. [1993 c.484 §9; 2003 c.14 §237;
2009 c.595 §409]
Note: See
note under 426.228.
426.238 Classifying facilities.
The Oregon Health Authority may assign classifications, as defined by rule of
the authority, to facilities that provide care and treatment for persons
committed to the authority under ORS 426.130 or provide emergency care or
treatment for persons pursuant to ORS 426.070, 426.228 to 426.235 or 426.237.
The authority may authorize a facility to retake custody of a person who
unlawfully leaves a facility as provided in ORS 426.223. [1993 c.484 §10; 2009
c.595 §410]
Note: See
note under 426.228.
426.240
[Amended by 1959 c.652 §22; 1975 c.690 §16; repealed by 1977 c.764 §4 (426.241
enacted in lieu of 426.240)]
(Costs)
426.241 Payment of care, custody and
treatment costs; denial of payment; rules. (1)
The cost of emergency psychiatric care, custody and treatment related to or
resulting from such psychiatric condition, provided by a hospital or other
facility approved by the Oregon Health Authority and the community mental
health program director of the county in which the facility is located, except
a state mental hospital, for an allegedly mentally ill person admitted or
detained under ORS 426.070, 426.140, 426.228, 426.232 or 426.233, or for a
mentally ill person admitted or detained under ORS 426.150, 426.223, 426.273,
426.275 or 426.292, shall be paid by the county of which the person is a
resident from state funds provided it for this purpose. The county is
responsible for the cost when state funds available therefor are exhausted. The
hospital or other facility shall charge to and collect from the person, third
party payers or other persons or agencies otherwise legally responsible
therefor, the costs of the emergency care, custody and treatment, as it would
for any other patient, and any funds received shall be applied as an offset to
the cost of the services provided under this section.
(2)
If any person is admitted to or detained in a state mental hospital under ORS
426.070, 426.140, 426.180 to 426.210, 426.228, 426.232 or 426.233 for emergency
care, custody or treatment, the authority shall charge to and collect from the
person, third party payers or other persons or agencies otherwise legally
responsible therefor, the costs as it would for other patients of the state
mental hospitals under the provisions of ORS 179.610 to 179.770.
(3)
If any person is adjudged mentally ill under the provisions of ORS 426.130, and
the person receives care and treatment in a state mental hospital, the person,
third party payers or other persons or agencies otherwise legally responsible
therefor, shall be required to pay for the costs of the hospitalization at the
state hospital, as provided by ORS 179.610 to 179.770, if financially able to
do so.
(4)
For purposes of this section and ORS 426.310 “resident” means resident of the
county in which the person maintains a current mailing address or, if the
person does not maintain a current mailing address within the state, the county
in which the person is found, or the county in which a court-committed mentally
ill person has been conditionally released.
(5)(a)
The authority may deny payment for part or all of the emergency psychiatric
services provided by a hospital or nonhospital facility under ORS 426.232,
426.233 or 426.237 when the authority finds, upon review, that the allegedly
mentally ill person’s condition did not meet the admission criteria in ORS
426.232 (1), 426.233 (1) or 426.237 (1)(b)(A). The payer responsible under this
section shall make a request for denial of payment for emergency psychiatric
services provided under ORS 426.232, 426.233 or 426.237 in writing to the
authority.
(b)
The authority may require the following to provide the authority with any
information that the authority determines is necessary to review a request for
denial of payment made under this subsection or to conduct a review of
emergency psychiatric services for the purpose of planning or defining
authority rules:
(A)
A hospital or nonhospital facility approved under ORS 426.228 to 426.235 or
426.237.
(B)
A physician or a person providing emergency psychiatric services under ORS
426.228 to 426.235 or 426.237.
(c)
The authority shall adopt rules necessary to carry out the purposes of this
subsection. [1977 c.764 §5 (enacted in lieu of 426.240); 1979 c.392 §1; 1981
c.750 §16; 1987 c.527 §1; 1993 c.484 §21; 2009 c.595 §411]
426.250 Payment of costs related to
commitment proceedings. The following is a nonexclusive
list of responsibilities for payment of various costs related to commitment
proceedings under this chapter as described:
(1)
Any physician or qualified person recommended by the Oregon Health Authority
who is employed under ORS 426.110 to make an examination as to the mental
condition of a person alleged to be mentally ill shall be allowed a fee as the
court in its discretion determines reasonable for the examination.
(2)
Witnesses subpoenaed to give testimony shall receive the same fees as are paid
in criminal cases, and are subject to compulsory attendance in the same manner
as provided in ORS 136.567 to 136.603. The attendance of out-of-state witnesses
may be secured in the same manner as provided in ORS 136.623 to 136.637. The
party who subpoenas the witness or requests the court to subpoena the witness
is responsible for payment of the cost of the subpoena and payment for the
attendance of the witness at a hearing. When the witness has been subpoenaed on
behalf of an allegedly mentally ill person who is represented by appointed
counsel, the fees and costs allowed for that witness shall be paid pursuant to
ORS 135.055. If the costs of witnesses subpoenaed by the allegedly mentally ill
person are paid as provided under this subsection, the procedure for
subpoenaing witnesses shall comply with ORS 136.570.
(3)
If a person with a right to a counsel under ORS 426.100 is determined to be
financially eligible for appointed counsel at state expense, the public defense
services executive director shall determine and pay, as provided in ORS
135.055, the reasonable expenses related to the representation of the person
and compensation for legal counsel. The expenses and compensation so allowed
shall be paid by the public defense services executive director from funds
available for the purpose.
(4)
The authority shall pay the costs of expenses incurred under ORS 426.100 by the
Attorney General’s office. Any costs for district attorneys or other counsel
appointed to assume responsibility for presenting the state’s case shall be
paid by the county where the commitment hearing is held, subject to
reimbursement under ORS 426.310.
(5)
All costs incurred in connection with a proceeding under ORS 426.200, including
the costs of transportation, commitment and delivery of the person, shall be
paid by the county of which the person is a resident; or, if the person is not
a resident of this state, then by the county from which the emergency admission
was made.
(6)
All costs incurred in connection with a proceeding under ORS 426.180 for the
commitment of a person from a reservation for land-based tribes of Native
Americans, including the cost of transportation, commitment and delivery of the
person, shall be paid by the ruling body of the reservation of which the person
is a resident. [Amended by 1965 c.420 §2; 1975 c.690 §17; 1977 c.764 §6; 1987
c.606 §9; 1987 c.903 §§26,26a; 2001 c.962 §59; 2009 c.595 §412; 2011 c.720 §162]
426.255 County to pay costs.
Costs of hearings conducted pursuant to ORS 426.307, and the fees for
physicians and other qualified persons shall be charged to the county of the
person’s residence in the same manner provided by ORS 426.310, whether the
hearing is held in the county of residence or county of the treating facility. [1973
c.838 §19; 1987 c.803 §23; 1987 c.903 §27]
426.260
[Amended by 1955 c.651 §8; repealed by 1957 c.160 §6]
426.270
[Amended by 1955 c.651 §9; repealed by 1957 c.160 §6]
(Trial Visits; Conditional Release; Outpatient
Commitment; Early Release)
426.273 Trial visits.
(1) During a period of commitment of a patient under ORS 426.130, the Oregon
Health Authority may grant a trial visit to the patient for a period of time
and under any conditions the authority shall establish. The authority shall
only grant a trial visit under this section if the trial visit is agreed to by
the community mental health program director, or the designee of the director,
for the county in which the person would reside.
(2)
When in the opinion of the authority, the committed person can be appropriately
served by outpatient care during the period of commitment, the outpatient care
may be required as a condition for trial visit for a period which, when added to
the inpatient treatment period, shall not exceed the period of commitment. If
outpatient care is required as a condition for a trial visit, the conditions
shall include a designation of a facility, service or other provider to provide
care or treatment.
(3)
A copy of the conditions for trial visit shall be given to all of the persons
listed in ORS 426.278.
(4)
Any trial visit granted under this section is subject to the provisions under
ORS 426.275.
(5)
The director of the community mental health program, or designee, of the county
in which a person who is on trial visit lives while on trial visit may modify
the conditions for continued trial visit when such modification is in the best
interest of the person. The director shall send notification of such changes
and the reasons for the changes to all those who received a copy of the
original conditions under ORS 426.278. [1985 c.242 §2 (enacted in lieu of
426.290); 1987 c.903 §28; 2009 c.595 §413]
426.275 Effect of failure to adhere to
condition of placement. The following are applicable to
placements of mentally ill persons that are made as conditional release under
ORS 426.125, outpatient commitments under ORS 426.127 or trial visits under ORS
426.273 as described:
(1)
If the person responsible under this subsection determines that the mentally
ill person is failing to adhere to the terms and conditions of the placement,
the responsible person shall notify the court having jurisdiction that the
mentally ill person is not adhering to the terms and conditions of the
placement. If the placement is an outpatient commitment under ORS 426.127 or a
trial visit under ORS 426.273, the notifications shall include a copy of the
conditions for the placement. The person responsible for notifying the court
under this subsection is as follows:
(a)
For conditional releases under ORS 426.125, the guardian, relative or friend in
whose care the mentally ill person is conditionally released.
(b)
For outpatient commitments under ORS 426.127, the community mental health program
director, or designee of the director, of the county in which the person on
outpatient commitment lives.
(c)
For trial visits under ORS 426.273, the community mental health program
director, or designee of the director, of the county in which the person on
trial visit is to receive outpatient treatment.
(2)
On its own motion, the court with jurisdiction of a mentally ill person on such
placement may cause the person to be brought before it for a hearing to
determine whether the person is or is not adhering to the terms and conditions
of the placement. The person shall have the same rights with respect to notice,
detention stay, hearing and counsel as for a hearing held under ORS 426.095.
The court shall hold the hearing within five judicial days of the date the
mentally ill person receives notice under this section. The court may allow
postponement and detention during postponement as provided under ORS 426.095.
(3)
Pursuant to the determination of the court upon hearing under this section, a
person on placement shall either continue the placement on the same or modified
conditions or shall be returned to the Oregon Health Authority for involuntary
care and treatment on an inpatient basis subject to discharge at the end of the
commitment period or as otherwise provided under this chapter.
(4)
If the person on placement is living in a county other than the county of the
court that established the current period of commitment under ORS 426.130
during which the trial visit, conditional release or outpatient commitment
takes place, the court establishing the current period of commitment shall
transfer jurisdiction to the appropriate court of the county in which the
person is living while on the placement and the court receiving the transfer
shall accept jurisdiction.
(5)
The court may proceed as provided in ORS 426.307 or this section when the
court:
(a)
Receives notice under ORS 426.070 or 426.228 to 426.235; and
(b)
Determines that the person is a mentally ill person on conditional release
under ORS 426.125, outpatient commitment under ORS 426.127 or trial visit under
ORS 426.273. [1985 c.242 §3 (enacted in lieu of 426.290); 1987 c.903 §29; 1993
c.484 §22; 2009 c.595 §414; 2011 c.720 §163]
426.278 Distribution of copies of
conditions for outpatient commitment or trial visit.
The following persons shall be given a copy of the conditions of a placement of
a mentally ill person that is made as an outpatient commitment under ORS
426.127 or as a trial visit under ORS 426.273:
(1)
The committed person;
(2)
The community mental health program director, or designee of the director, of
the county in which the committed person is to receive outpatient treatment;
(3)
The director of any facility, service or other provider designated to provide
care or treatment;
(4)
The court of current commitment; and
(5)
The appropriate court of the county in which the committed person lives during
the commitment period if the person is living in a different county than the
county of the court that made the current commitment. [1987 c.903 §30; 2009
c.595 §415]
426.280
[Amended by 1961 c.228 §1; 1961 c.706 §26; 1969 c.597 §91; 1973 c.838 §26; 1985
c.242 §5; 1987 c.903 §31; 1993 c.484 §23; 1997 c.531 §7; renumbered 426.335 in
2003]
426.290
[Amended by 1959 c.513 §1; 1961 c.228 §2; 1969 c.391 §6; 1973 c.838 §27; 1975
c.690 §18; repealed by 1985 c.242 §1 (426.273, 426.275 and 426.292 enacted in
lieu of 426.290)]
426.292 Release prior to expiration of
term of commitment. Nothing in this chapter and ORS
430.397 to 430.401 prohibits the Oregon Health Authority from releasing a
person from a hospital or other facility in which the person is being treated
prior to the expiration of the period of commitment under ORS 426.130 when, in
the opinion of the director of the facility or treating physician, the person
is no longer mentally ill. [1985 c.242 §4 (enacted in lieu of 426.290); 2009
c.595 §416]
(Competency and Discharge)
426.295 Judicial determination of
competency; restoration of competency. (1) No person
admitted to a state hospital for the treatment of mental illness shall be
considered by virtue of the admission to be incompetent.
(2)
Upon petition of a person committed to a state hospital, or the guardian,
relative or creditor of the person or other interested person, the court of
competent jurisdiction in the county in which the state hospital is located or,
if the petitioner requests a hearing in the county where the commitment
originated, then the court in such county shall hold a hearing to determine
whether or not the person in the state hospital is competent. A guardian who is
not the petitioner shall be notified of the hearing at least three days before
the date set for hearing. After the hearing the court shall enter an order
pursuant to its finding and serve a copy of the order on the petitioner and
forward a copy of the order to the committing court.
(3)
When a person committed to a state hospital has been declared incompetent
pursuant to subsection (2) of this section and is discharged from the hospital,
the superintendent of the hospital shall advise the court which entered the
order of incompetency whether or not, in the opinion of the chief medical
officer of the hospital on the basis of medical evidence, the person is
competent. The superintendent shall make a reasonable effort to notify the
discharged person of the advice to the court. If the court is advised that the
person is competent, the court shall enter an order to that effect. If the
court is advised that the person is not competent, upon petition of the person,
the guardian, relative or creditor of the person or other interested person,
the court shall hold a hearing to determine whether or not the discharged
person is competent. The court shall serve a copy of any order entered pursuant
to this subsection on the person and forward a copy of such order to the
committing court. [1965 c.628 §2; 1967 c.460 §1; 1969 c.391 §7]
426.297 Payment of expenses for proceeding
under ORS 426.295. (1) The expenses of a proceeding
under ORS 426.295 (2) shall be paid by the person, unless it appears from the
affidavit of the person or other evidence that the person is unable to pay the
expenses. If the person is unable to pay, the expenses of the proceedings shall
be paid by the county of which the mentally ill person was a resident at the
time of admission. If the county of residence cannot be established, the county
from which the person was admitted shall pay the expenses.
(2)
The expenses of the proceeding under ORS 426.295 (3) shall be paid by the
petitioner.
(3)
Any physician employed by the court to make an examination as to the mental
condition of a person subject to a competency proceeding under ORS 426.295 or
426.380 to 426.390 shall be allowed a reasonable professional fee by order of
the court. Witnesses summoned and giving testimony shall receive the same fees
as are paid in ORS 44.415 (2). [1967 c.460 §2; 1989 c.980 §14]
426.300 Discharge of patients; application
for public assistance. (1) The Oregon Health Authority
shall, by filing a written certificate with the last committing court and the
court of residence, discharge any patient from court commitment, except one
held upon an order of a court or judge having criminal jurisdiction in an
action or proceeding arising out of criminal offense when in its opinion the
individual is no longer a mentally ill person or when in its opinion the
transfer of the individual to a voluntary status is in the best interest of the
treatment of the patient.
(2)
The authority may sign applications for public assistance on behalf of those
patients who may be eligible for public assistance. [Amended by 1963 c.325 §4;
1967 c.549 §8; 1973 c.838 §22; 1997 c.249 §137; 2009 c.595 §417]
426.301 Release of committed patient;
certification of continued mental illness; service of certificate; content;
period of further commitment; effect of failure to protest further commitment.
(1) At the end of the 180-day period of commitment, any person whose status has
not been changed to voluntary shall be released unless the Oregon Health Authority
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
authority, 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 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 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 authority 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 authority, 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 authority, the court will appoint
legal counsel, a physician or other qualified 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 authority 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. [1973 c.838 §15;
1975 c.690 §19; 1987 c.903 §32; 2001 c.962 §60; 2009 c.595 §418]
426.303 Effect of protest of further commitment;
advice of court. When the person protests a
further period of commitment the Oregon Health Authority or facility designated
in accordance with ORS 426.301 shall immediately notify the court and the court
shall have the person brought before it and shall again advise the person that
the authority or facility has requested that commitment be continued for an
additional period of time and that if the person does not protest this
commitment the commitment will be continued for an indefinite period of time up
to 180 days. The person shall also be informed of the rights set forth in ORS
426.301. [1973 c.838 §16; 1975 c.690 §20; 2009 c.595 §419]
426.305 [1955
c.522 §4; 1963 c.325 §5; repealed by 1965 c.628 §3]
426.307 Court hearing; continuance;
attorney; examination; determination of mental illness; order of further
commitment; period of commitment. If the person
requests a hearing under ORS 426.301 or if the court proceeds under ORS 426.275
(5), the following provisions apply as described:
(1)
The hearing shall be conducted as promptly as possible and at a time and place
as the court may direct.
(2)
If the person requests a continuance in order to prepare for the hearing or to
obtain legal counsel to represent the person, the court may grant postponement
and detention during postponement as provided under ORS 426.095.
(3)
The person has the right to representation by or appointment of counsel as
provided under ORS 426.100 subject to ORS 135.055, 151.216 and 151.219.
(4)
If the person requests an examination by a physician or other qualified person
as recommended by the Oregon Health Authority and is without funds to retain a
physician or other qualified person for purposes of the examination, the court
shall appoint a physician or other qualified person, other than a member of the
staff from the facility where the person is confined, to examine the person at
no expense to the person and to report to the court the results of the
examination.
(5)
The provisions of ORS 40.230, 40.235, 40.240 and 40.250 do not apply to the use
of medical records from the current period of commitment or to testimony
related to such records or period of commitment in connection with hearings
under this section. The court may consider as evidence such reports and
testimony.
(6)
The court shall then conduct a hearing and after hearing the evidence and
reviewing the recommendations of the treating and examining physicians or other
qualified persons, the court shall determine whether the person is still a
mentally ill person and in need of further treatment. If in the opinion of the
court the individual is still a mentally ill person by clear and convincing
evidence and in need of further treatment, the court may order commitment to
the authority for an additional indefinite period of time up to 180 days.
(7)
At the end of the 180-day period, the person shall be released unless the
authority or facility again certifies to the committing court that the person
is still a mentally ill person and in need of further treatment, in which event
the procedures set forth in ORS 426.301 to 426.307 shall be followed. [1973
c.838 §17; 1975 c.690 §21; 1979 c.408 §5; 1987 c.803 §24; 1987 c.903 §§33,33a;
1989 c.171 §53; 1993 c.484 §24; 1997 c.649 §4; 2001 c.962 §61; 2009 c.595 §420]
426.309 Effect of ORS 426.217 and 426.301
to 426.307 on other discharge procedure. ORS 426.217
and 426.301 to 426.307 do not restrict or limit the discharge procedures set
forth in ORS 426.300. [1973 c.838 §20]
(Miscellaneous)
426.310 Reimbursement of county in case of
nonresident patients. (1) If the mentally ill person
is a resident of some other county in this state, the county making the
commitment shall be reimbursed by the county of which the person is a resident.
All reasonable and actual expenses incurred and paid by the county by reason of
the care, custody, treatment, investigation examination and commitment hearing
shall, upon presentation of a copy of the order of the judge making the
examination and commitment, together with a properly itemized and certified
claim covering the expense, be promptly paid to the county by the county of
which the person was a resident. The expenses reimbursed under this subsection
shall include any expenses incurred to pay for representation of the state’s
interest under ORS 426.100 and 426.250.
(2)
If an allegedly mentally ill person is a resident of some other county in this
state, a county attempting a commitment shall be reimbursed by the county of
which the person is a resident, as defined in ORS 426.241, for all actual,
reasonable expenses incurred and paid by the county attempting commitment by
reason of the care, custody, treatment, investigation examination and
commitment hearing. The expenses reimbursed under this subsection shall include
any expenses incurred to pay for representation of the state’s interest under
ORS 426.100 and 426.250. [Amended by 1975 c.690 §22; 1977 c.764 §7; 1979 c.392 §2;
1987 c.903 §34]
426.320 Payment of certain expenses by the
state. When a mentally ill person is assigned
to or transferred to a state mental hospital, all actual and necessary expenses
incurred by the agent or attendant from the state hospital and the assistants
of the agent or attendant, together with those of the person for transportation
to the hospital, shall be paid by the state in the manner provided in ORS
426.330. [Amended by 1975 c.690 §23]
426.330 Presentation and payment of
claims. (1) The special funds authorized for
the use of the superintendents of the Oregon State Hospital, the Blue Mountain
Recovery Center and the Eastern Oregon Training Center to better enable them
promptly to meet the advances and expenses necessary in the matter of
transferring patients to the state hospitals are continued in existence. The
superintendents shall present their claims monthly with vouchers that show the
expenditures from the special funds during the preceding month to:
(a)
The Oregon Health Authority for the transfer of patients to the Oregon State
Hospital or the Blue Mountain Recovery Center; and
(b)
The Department of Human Services for the transfer of patients to the Eastern
Oregon Training Center.
(2)
Against the funds appropriated to cover the cost of transporting patients, the
State Treasurer shall pay:
(a)
The claims of the superintendents of the Oregon State Hospital and the Blue
Mountain Recovery Center that have been approved by the Oregon Health
Authority; and
(b)
The claims of the superintendent of the Eastern Oregon Training Center that
have been approved by the Department of Human Services. [Amended by 1975 c.614 §14;
1985 c.565 §67; 2007 c.14 §2; 2007 c.70 §206; 2009 c.595 §421; 2011 c.9 §59]
426.335 Limitations on liability.
The following limitations on liability and circumstances are applicable to
situations within this chapter and ORS 430.397 to 430.401:
(1)
None of the following shall in any way be held criminally or civilly liable for
the making of the notification under ORS 426.070, provided the person acts in
good faith, on probable cause and without malice:
(a)
The community mental health program director or designee of the director.
(b)
The two petitioning persons.
(c)
The county health officer.
(d)
Any magistrate.
(e)
Any peace officer or parole and probation officer.
(f)
Any physician attending the allegedly mentally ill person.
(g)
The physician attached to a hospital or institution wherein the allegedly
mentally ill person is a patient.
(2)
The person conducting the investigation under ORS 426.070 and 426.074 shall not
be held criminally or civilly liable for conducting the investigation, provided
the investigator acts in good faith, on probable cause and without malice.
(3)
The person representing the state’s interest under ORS 426.100 shall not be
held criminally or civilly liable for performing responsibilities under ORS
426.100 as long as the person acts in good faith and without malice.
(4)
No person appointed under ORS 426.110 to conduct an examination under ORS
426.120 shall be held criminally or civilly liable for actions pursuant to ORS
426.120 if the examiner acts in good faith and without malice.
(5)
No physician, hospital or judge shall be held criminally or civilly liable for
actions pursuant to ORS 426.228, 426.231, 426.232, 426.234 or 426.235 if the
physician, hospital or judge acts in good faith, on probable cause and without
malice.
(6)
No peace officer, person authorized under ORS 426.233, community mental health
director or designee, hospital or other facility, physician or judge shall in
any way be held criminally or civilly liable for actions pursuant to ORS
426.228 to 426.235 if the individual or facility acts in good faith, on
probable cause and without malice.
(7)
Any guardian, relative or friend of a mentally ill person who assumes
responsibility for the mentally ill person under a conditional release under
ORS 426.125 shall not be liable for any damages that are sustained by any
person on account of the misconduct of the mentally ill person while on
conditional release if the guardian, relative or friend acts in good faith and
without malice.
(8)
The persons designated in this subsection shall not be liable for damages that
are sustained by any person or property on account of the misconduct of a
mentally ill person while the mentally ill person is on outpatient commitment
under ORS 426.127 if the designated person acts without willful and wanton
neglect of duty. This subsection is applicable to all of the following:
(a)
The community mental health program director and the designee of the director
for the county in which the committed person resides.
(b)
The superintendent or director of any staff of any facility where the mentally
ill person receives treatment during the outpatient commitment.
(c)
The Director of the Oregon Health Authority.
(d)
The physician and the facility granting an outpatient commitment to a patient.
(9)
For trial visits granted under ORS 426.273 and 426.275:
(a)
None of the following shall be liable for a patient’s expenses while on trial
visit:
(A)
The physician and the facility granting a trial visit to a patient;
(B)
The superintendent or director of the facility granting a trial visit;
(C)
The Director of the Oregon Health Authority; and
(D)
The chief medical officer of the facility.
(b)
The following persons shall not be liable for damages that are sustained by any
person on account of the misconduct of such patient while on trial visit if the
person acts without willful and wanton neglect of duty:
(A)
The community mental health program director for the county in which the person
resides;
(B)
The superintendent, director or chief medical officer of any facility granting
a trial visit to a patient;
(C)
The physician responsible for the patient’s trial visit;
(D)
The Director of the Oregon Health Authority; or
(E)
The employees and agents of persons listed in this paragraph. [Formerly
426.280; 2005 c.264 §21; 2009 c.595 §422]
426.340
[Repealed by 1975 c.690 §28]
426.350
[Amended by 1961 c.152 §1; repealed by 1971 c.64 §12]
426.360 [1961
c.513 §§1,2,3; 1969 c.597 §92; 1971 c.655 §246; 1977 c.253 §40; repealed by
2001 c.900 §261]
426.370 Withholding information obtained
in certain commitment or admission investigations.
A community mental health program director or designee may withhold information
obtained during an investigation under ORS 426.070, 426.228, 426.232, 426.233
or 426.234 if the community mental health program director determines:
(1)
That information was not included in its investigation report or otherwise used
in a material way to support a determination by the community mental health
program director that there was probable cause to believe a person was a
mentally ill person; and
(2)
Release of the information would constitute a clear and immediate danger to any
person. [1989 c.993 §6; 1993 c.484 §25; 2009 c.595 §423]
Note:
426.370 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 426 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
426.375 [1967
c.460 §5; repealed by 1973 c.838 §29]
426.380 Availability of writ of habeas
corpus. Any individual committed pursuant to
ORS 426.005 to 426.223 and 426.241 to 426.380 shall be entitled to the writ of
habeas corpus upon proper petition by the individual or a friend to any court
generally empowered to issue the writ of habeas corpus in the county in which
the state hospital in which the person is detained is located. [1967 c.460 §6]
426.385 Rights of committed persons.
(1) Every mentally ill person committed to the Oregon Health Authority shall
have the right to:
(a)
Communicate freely in person and by reasonable access to telephones;
(b)
Send and receive sealed mail, except that this right may be limited for
security reasons in state institutions as described in ORS 426.010;
(c)
Wear the clothing of the person;
(d)
Keep personal possessions, including toilet articles;
(e)
Religious freedom;
(f)
A private storage area with free access thereto;
(g)
Be furnished with a reasonable supply of writing materials and stamps;
(h)
A written treatment plan, kept current with the progress of the person;
(i)
Be represented by counsel whenever the substantial rights of the person may be
affected;
(j)
Petition for a writ of habeas corpus;
(k)
Not be required to perform routine labor tasks of the facility except those
essential for treatment;
(L)
Be given reasonable compensation for all work performed other than personal
housekeeping duties;
(m)
Daily access to fresh air and the outdoors, except that this right may be
limited when it would create significant risk of harm to the person or others;
(n)
Such other rights as may be specified by rule; and
(o)
Exercise all civil rights in the same manner and with the same effect as one
not admitted to the facility, including, but not limited to, the right to
dispose of real property, execute instruments, make purchases, enter
contractual relationships, and vote, unless the person has been adjudicated
incompetent and has not been restored to legal capacity. Disposal of personal
property in possession of the person in a state institution described in ORS
426.010 is subject to limitation for security reasons.
(2)(a)
A person must be immediately informed, verbally and in writing, of any
limitation:
(A)
Of the right to send or receive sealed mail under subsection (1)(b) of this
section;
(B)
Regarding the disposal of personal property under subsection (1)(o) of this
section; and
(C)
Of the right to daily access to fresh air and the outdoors under subsection
(1)(m) of this section.
(b)
Any limitation under this subsection and the reasons for the limitation must be
stated in the person’s written treatment plan.
(c)
The person has the right to challenge any limitation under this subsection
pursuant to rules adopted by the authority. The person must be informed,
verbally and in writing, of this right.
(3)
Mentally ill persons committed to the authority shall have the right to be free
from potentially unusual or hazardous treatment procedures, including
convulsive therapy, unless they have given their express and informed consent
or authorized the treatment pursuant to ORS 127.700 to 127.737. This right may
be denied to such persons for good cause as defined in administrative rule only
by the director of the facility in which the person is confined, but only after
consultation with and approval of an independent examining physician. Any
denial shall be entered into the patient’s treatment record and shall include
the reasons for the denial. No patient shall be subjected to psychosurgery, as
defined in ORS 677.190 (21)(b).
(4)
Mechanical restraints shall not be applied to a person admitted to a facility
unless it is determined by the chief medical officer of the facility or
designee to be required by the medical needs of 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 chief medical officer of
the facility or designee.
(5)
Nothing in this section prevents the authority from acting to exclude
contraband from its facilities and to prevent possession or use of contraband
in its facilities.
(6)
As used in this section:
(a)
“Contraband” has the meaning given that term in ORS 162.135.
(b)
“Security reasons” means the protection of the mentally ill person from serious
and immediate harm and the protection of others from threats or harassment as
defined by rule of the authority. [1967 c.460 §4; 1973 c.838 §28; 1981 c.372 §3;
1983 c.486 §1; 1993 c.442 §16; 1995 c.141 §1; 2001 c.104 §152; 2007 c.56 §1;
2009 c.595 §424; 2009 c.756 §20]
426.390 Construction.
Nothing in ORS 426.295, 426.297 and 426.380 to 426.390 is intended to detract
from the powers of a court under ORS chapter 125 or ORS 179.640. [1967 c.460 §7;
1973 c.823 §137; 1995 c.664 §96]
426.395 Posting of statement of rights of
committed persons. A simple and clear statement of
rights guaranteed to patients committed to the Oregon Health Authority shall be
prominently posted in each room frequented by patients in all facilities
housing such patients. A copy of the statement shall be given to each patient
upon admission and sent, upon request, to the legal counsel, guardian, relative
or friend of the patient. The statement shall include the name, address and
telephone number of the system described in ORS 192.517 (1). [1973 c.838 §31;
2003 c.14 §238; 2007 c.57 §1; 2009 c.595 §425]
426.405 [1983
c.536 §1; repealed by 2001 c.900 §261]
426.407 [1983
c.536 §2; repealed by 2001 c.900 §261]
426.410 [1969
c.638 §1; repealed by 1975 c.690 §28]
(Licensing of Persons Who May Order
Restraint or Seclusion)
426.415 Licensing of persons who may order
and oversee use of restraint and seclusion in facilities providing mental
health treatment to individuals under 21 years of age; rules.
(1) The Director of the Oregon Health Authority may adopt rules establishing
requirements and procedures for licensing persons who may order, monitor and
evaluate the use of restraint and seclusion in facilities providing intensive
mental health treatment services to individuals under 21 years of age.
(2)
A license may not be issued or renewed under rules adopted under this section
unless the person applying for the license or renewal:
(a)
Is employed by or providing services under contract with a provider that is
certified by the Oregon Health Authority to provide intensive mental health
treatment services for individuals under 21 years of age;
(b)
Has successfully completed an emergency safety intervention training program
approved by the director;
(c)
Provides documented evidence of the person’s ability to assess the
psychological and physical well-being of individuals under 21 years of age;
(d)
Meets other qualifications established by the director by rule for qualified
mental health professionals; and
(e)
Demonstrates knowledge of federal and state rules governing the use of
restraint and seclusion in intensive mental health treatment programs for
individuals under 21 years of age.
(3)
The rules described in subsection (1) of this section shall:
(a)
Specify procedures for issuing and renewing licenses;
(b)
Establish a term of licensure;
(c)
Require a person issued a license to satisfy annual training requirements
relating to emergency safety intervention procedures;
(d)
Specify grounds for denial, suspension or revocation of a license;
(e)
Set any license or renewal fees the director determines are necessary; and
(f)
Specify any other licensing provisions the director determines are necessary to
comply with federal law or regulations or to operate a licensing system
described in this section. [2001 c.807 §1; 2009 c.595 §426]
Note:
426.415 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 426 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
426.450 [1971
c.622 §6; renumbered 430.397 in 1995]
426.460 [1971
c.622 §7; 1973 c.795 §3; 1979 c.744 §22; 1981 c.809 §1; 1985 c.565 §68;
renumbered 430.399 in 1995]
426.470 [1971
c.622 §8; renumbered 430.401 in 1995]
COMMUNITY INTEGRATION OF PERSONS WITH
CHRONIC MENTAL ILLNESS
426.490 Policy.
It is declared to be the policy and intent of the Legislative Assembly that the
State of Oregon shall assist in improving the quality of life of persons with
chronic mental illness within this state by ensuring the availability of an
appropriate range of residential opportunities and related support services. [1979
c.784 §1; 2007 c.70 §207]
Note:
426.490 to 426.500 were enacted into law by the Legislative Assembly but were
not added to or made a part of ORS chapter 426 or any series therein by
legislative action. See Preface to Oregon Revised Statutes for further explanation.
426.495 Definitions for ORS 426.490 to
426.500; rules. (1) As used in ORS 426.490 to
426.500, unless the context requires otherwise:
(a)
“Case manager” means a person who works on a continuing basis with a person
with a chronic mental illness and is responsible for assuring the continuity of
the various services called for in the discharge plan of the person with a
chronic mental illness including services for basic personal maintenance,
mental and personal treatment, and appropriate education and employment.
(b)
“Discharge plan” means a written plan prepared jointly with the person with a
chronic mental illness, mental health staff and case manager prior to
discharge, prescribing for the basic and special needs of the person upon
release from the hospital.
(c)
“Person with a chronic mental illness” means an individual who is:
(A)
Eighteen years of age or older; and
(B)
Diagnosed by a psychiatrist, a licensed clinical psychologist or a nonmedical
examiner certified by the Oregon Health Authority or the Department of Human
Services as having chronic schizophrenia, a chronic major affective disorder, a
chronic paranoid disorder or another chronic psychotic mental disorder other
than those caused by substance abuse.
(2)
For purposes of providing services in the community, the authority may adopt
rules consistent with accepted professional practices in the fields of
psychology and psychiatry to specify other criteria for determining who is a
person with a chronic mental illness. [1979 c.784 §2; 1987 c.903 §35; 2007 c.70
§208; 2009 c.595 §427; 2011 c.720 §164]
Note: See
note under 426.490.
426.500 Powers and duties of Oregon Health
Authority; rules. For the purpose of carrying out
the policy and intent of ORS 426.490 to 426.500, the Oregon Health Authority
shall:
(1)
Adopt rules for the administration of ORS 426.490 to 426.500;
(2)
Prepare a written discharge plan for each person with a chronic mental illness
who is a patient at a state mental institution or who is committed to the
authority pursuant to ORS 426.005 to 426.223 and 426.241 to 426.380;
(3)
Ensure that case managers are provided for each person with a chronic mental
illness described in subsection (2) of this section; and
(4)
Disburse from any available funds:
(a)
Funds for one LINC model in the area served by F. H. Dammasch State Hospital
and one LINC model in the area served by the Oregon State Hospital licensed
under ORS 443.415;
(b)
Discretionary funds for services necessary to implement a discharge plan,
including but not limited to transportation, medication, recreation and
socialization; and
(c)
Funds to provide day treatment services, community psychiatric inpatient
services, and work activity services for persons with chronic mental illness
when needed. [1979 c.784 §3; 1999 c.59 §121; 2007 c.70 §209; 2009 c.595 §428]
Note: See
note under 426.490.
426.502 Definitions for ORS 426.502 to
426.508. As used in ORS 426.502 to 426.508:
(1)
“Authority” means the Oregon Health Authority.
(2)
“Community housing” means property and related equipment that are used or could
be used to house persons with chronic mental illness and their care providers. “Community
housing” includes single-family housing and multiple-unit residential housing.
(3)
“Construct” means to build, install, assemble, expand, alter, convert, replace
or relocate. “Construct” includes to install equipment and to prepare a site.
(4)
“Equipment” means furnishings, fixtures or appliances that are used or could be
used to provide care in community housing.
(5)
“Multiple-unit residential housing” means housing that provides two 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 authority, improve the quality of the housing.
(6)
“Person with a chronic mental illness” has the meaning given that term in ORS
426.495.
(7)
“Single-family housing” means a detached living unit with common living room
and dining facilities for at least three occupants with chronic mental illness.
“Single-family housing” may include nonhousing facilities incidental or
appurtenant to the housing that, in the determination of the authority, improve
the quality of the housing. [1999 c.983 §2; 2005 c.11 §1; 2007 c.70 §210; 2009
c.595 §429]
426.504 Power of Oregon Health Authority
to develop community housing for persons with chronic mental illness; sale of
community housing; conditions. (1) The
Oregon Health Authority 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 persons with
chronic mental illness.
(2)
The authority 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
authority considers advisable to increase the quality and quantity of community
housing available for persons with chronic mental illness. Except as provided
in subsection (3) of this section, in any instrument conveying fee title to
community housing, the authority shall include language that restricts the use
of the community housing to housing for persons with chronic mental illness.
Such restriction is not a violation of ORS 93.270.
(3)
If the authority determines that community housing acquired under subsection
(1) of this section is no longer suitable for use as community housing, the
authority may sell or otherwise dispose of the community housing without
including in any instrument conveying fee title to the community housing any
language that restricts the use of the community housing. Proceeds from the
sale or disposition of community housing under this subsection are considered
proceeds described in ORS 426.506 (4)(c).
(4)
When exercising the power granted to the authority under this section, the
authority is not subject to ORS chapter 273 or ORS 270.100 to 270.190, 276.900
to 276.915 or 279A.250 to 279A.290. [1999 c.983 §3; 2003 c.794 §281; 2005 c.11 §2;
2007 c.70 §211; 2009 c.595 §430]
426.506 Community Mental Health Housing
Fund; Community Housing Trust Account; report.
(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 Oregon Health
Authority to carry out the provisions of ORS 426.504.
(2)
The Community Mental Health Housing Fund shall be administered by the authority
to provide housing for persons with chronic mental illness. 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. With approval of the State Treasurer and upon
request of the Director of the Oregon Health Authority, moneys in the account
may be invested as provided in ORS 293.701 to 293.820.
(b)
Notwithstanding the provisions of ORS 270.150, the authority shall deposit into
the Community Housing Trust Account the proceeds, less costs to the state,
received by the authority from the sale of F. H. Dammasch State Hospital
property under ORS 426.508. The authority 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 authority and used as a state training center.
(c)
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.
(d)
Interest earned on deposits in the Community Housing Trust Account shall not be
used to support operating expenses of the authority.
(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 authority and used as community housing;
(d)
Moneys reallocated from other areas of the authority’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 persons with chronic mental illness.
(5)
The authority 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 persons with
chronic mental illness;
(b)
To match public and private moneys available from other sources for developing
housing for persons with chronic mental illness; and
(c)
To administer the fund in a manner that will not exceed the State Treasury’s
maximum cost per transaction.
(6)
The authority 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 authority 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. [1999 c.983 §4; 2001
c.954 §31; 2007 c.70 §212; 2007 c.217 §7; 2009 c.595 §431]
426.508 Sale of F. H. Dammasch State
Hospital; fair market value; redevelopment of property; property reserved for
community housing. (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 Oregon Health Authority.
(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
Oregon Department of Administrative Services shall engage the services of a
licensed real estate broker or principal real estate broker 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 Oregon Health Authority and the Department 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 Oregon Health
Authority for use by the authority to develop community housing for persons
with chronic mental illness. The department and the authority shall jointly
coordinate with the City of Wilsonville to identify the real property reserved
from sale under this subsection. [1999 c.983 §5; 2001 c.300 §76; 2001 c.900 §253;
2007 c.70 §213; 2009 c.595 §432]
SEXUALLY DANGEROUS PERSONS
426.510 “Sexually dangerous person”
defined. As used in ORS 426.510 to 426.680,
unless the context otherwise requires, “sexually dangerous person” means a
person who because of repeated or compulsive acts of misconduct in sexual
matters, or because of a mental disease or defect, is deemed likely to continue
to perform such acts and be a danger to other persons. [1963 c.467 §1; 1977
c.377 §1]
426.520 [1963
c.467 §2; repealed by 1977 c.377 §6]
426.530 [1963
c.467 §3; 1971 c.743 §367; 1973 c.836 §349; repealed by 1977 c.377 §6]
426.540 [1963
c.467 §4; repealed by 1977 c.377 §6]
426.550 [1963
c.467 §5; repealed by 1977 c.377 §6]
426.560 [1963
c.467 §6; repealed by 1977 c.377 §6]
426.570 [1963
c.467 §7; 1973 c.836 §350; repealed by 1977 c.377 §6]
426.580 [1963
c.467 §§8,9; 1973 c.443 §1; repealed by 1977 c.377 §6]
426.590 [1963
c.467 §10; repealed by 1977 c.377 §6]
426.610 [1963
c.467 §11; 1973 c.443 §2; repealed by 1977 c.377 §6]
426.620 [1963
c.467 §12; repealed by 1977 c.377 §6]
426.630 [1963
c.467 §13; repealed by 1977 c.377 §6]
426.640 [1963
c.467 §14; 1973 c.443 §3; 1975 c.380 §8; repealed by 1977 c.377 §6]
426.650 Voluntary admission to state
institution; rules. (1) Pursuant to rules
promulgated by the Oregon Health Authority, the superintendent of any state
hospital for the treatment and care of persons with mental illness may admit
and hospitalize therein as a patient any person in need of medical or mental
therapeutic treatment as a sexually dangerous person who voluntarily has made
written application for such admission. No person under the age of 18 years
shall be admitted as a patient to any such state hospital unless an application
therefor in behalf of the person has been executed by the parent, adult next of
kin or legal guardian of the person. Pursuant to rules and regulations of the
authority, no person voluntarily admitted to any state hospital shall be
detained therein more than 72 hours after the person, if at least 18 years of
age, has given notice in writing of desire to be discharged therefrom, or, if
the patient is under the age of 18 years, after notice in writing has been
given by the parent, adult next of kin or legal guardian of the person that
such parent, adult next of kin or legal guardian desires that such person be
discharged therefrom.
(2)
Any person voluntarily admitted to a state facility pursuant to this section
may upon application and notice to the superintendent of the institution
concerned, be granted a temporary leave of absence from the institution if such
leave, in the opinion of the chief medical officer, will not interfere with the
successful treatment or examination of the applicant. [1963 c.467 §15; 1969
c.391 §8; 1973 c.443 §4; 1973 c.827 §43; 1974 c.36 §11; 2007 c.70 §214; 2009
c.595 §433]
426.660 [1963
c.467 §16; repealed by 1973 c.443 §5]
426.670 Treatment programs for sexually
dangerous persons. The Oregon Health Authority
hereby is directed and authorized to establish and operate treatment programs,
either separately within an existing state Department of Corrections
institution, as part of an existing program within an Oregon Health Authority
institution, or in specified and approved sites in the community to receive,
treat, study and retain in custody, as required, such sexually dangerous
persons as are committed under ORS 426.510 to 426.670. [1963 c.467 §17; 1965
c.481 §1; 1979 c.606 §1; 1987 c.320 §230; 2009 c.595 §434]
426.675 Determination of sexually
dangerous persons; custody pending sentencing; hearing; sentencing; rules.
(1) When a defendant has been convicted of a sexual offense under ORS 163.305
to 163.467 or 163.525 and there is probable cause to believe the defendant is a
sexually dangerous person, the court prior to imposing sentence may continue
the time for sentencing and commit the defendant to a facility designated under
ORS 426.670 for a period not to exceed 30 days for evaluation and report.
(2)
If the facility reports to the court that the defendant is a sexually dangerous
person and that treatment available may reduce the risk of future sexual
offenses, the court shall hold a hearing to determine by clear and convincing evidence
that the defendant is a sexually dangerous person. The state and the defendant
shall have the right to call and cross-examine witnesses at such hearing. The
defendant may waive the hearing required by this subsection.
(3)
If the court finds that the defendant is a sexually dangerous person and that
treatment is available which will reduce the risk of future sexual offenses, it
may, in its discretion at the time of sentencing:
(a)
Sentence the defendant to probation on the condition that the person
participate in and successfully complete a treatment program for sexually
dangerous persons pursuant to ORS 426.670;
(b)
Impose a sentence of imprisonment with the order that the defendant be assigned
by the Director of the Department of Corrections to participate in a treatment
program for sexually dangerous persons pursuant to ORS 426.670. The Department
of Corrections and the Oregon Health Authority shall jointly adopt
administrative rules to coordinate assignment and treatment of prisoners under
this subsection; or
(c)
Impose any other sentence authorized by law. [1977 c.377 §3; 1979 c.606 §2;
1987 c.320 §231; 1993 c.14 §24; 2009 c.595 §435]
426.680 Trial visits for probationer.
(1) The superintendent of the facility designated under ORS 426.670 to receive
commitments for medical or mental therapeutic treatment of sexually dangerous
persons may grant a trial visit to a defendant committed as a condition of
probation where:
(a)
The trial visit is not inconsistent with the terms and conditions of probation;
and
(b)
The trial visit is agreed to by the community mental health program director
for the county in which the person would reside.
(2)
Trial visit here shall correspond to trial visit as described in ORS 426.273 to
426.292 and 426.335, except that the length of a trial visit may be for the
duration of the period of probation, subject to the consent of the sentencing
court. [1973 c.443 §7; 1977 c.377 §4; 1985 c.242 §7; 2009 c.595 §436]
426.700 [1973
c.616 §1; repealed by 1981 c.372 §2]
426.705 [1973
c.616 §2; repealed by 1981 c.372 §2]
426.710 [1973
c.616 §6; repealed by 1981 c.372 §2]
426.715 [1973
c.616 §7; repealed by 1981 c.372 §2]
426.720 [1973
c.616 §8; repealed by 1981 c.372 §2]
426.725 [1973
c.616 §9; repealed by 1981 c.372 §2]
426.730 [1973
c.616 §10; repealed by 1981 c.372 §2]
426.735 [1973
c.616 §11; repealed by 1981 c.372 §2]
426.740 [1973
c.616 §12; repealed by 1981 c.372 §2]
426.745 [1973
c.616 §§13,14,15; repealed by 1981 c.372 §2]
426.750 [1973
c.616 §3; repealed by 1981 c.372 §2]
426.755 [1973
c.616 §4; repealed by 1981 c.372 §2]
426.760 [1977
c.148 §5; repealed by 1981 c.372 §2]
_______________