77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session
Enrolled
Senate Bill 421
Sponsored by Senator PROZANSKI (at the request of Kristie
Kilcullen and John Kilcullen) (Presession filed.)
CHAPTER ................
AN ACT
Relating to civil commitments; creating new provisions; amending
ORS 426.095, 426.110, 426.135, 426.160, 426.241 and 426.250 and
section 69, chapter 360, Oregon Laws 2013 (Enrolled Senate Bill
426); repealing sections 23, 25, 31, 35 and 45, chapter 360,
Oregon Laws 2013 (Enrolled Senate Bill 426); appropriating
money; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2 and 3 of this 2013 Act are added to
and made a part of ORS chapter 426. + }
SECTION 2. { + (1) For the purposes of this section and
section 3 of this 2013 Act:
(a) A person is 'extremely dangerous' if the person:
(A) Is at least 18 years of age;
(B) Is exhibiting symptoms or behaviors of a mental disorder
substantially similar to those that preceded the act described in
subsection (3)(a)(C) of this section; and
(C) Because of a mental disorder:
(i) Presents a serious danger to the safety of other persons by
reason of an extreme risk that the person will inflict grave or
potentially lethal physical injury on other persons; and
(ii) Unless committed, will continue to represent an extreme
risk to the safety of other persons in the foreseeable future.
(b) 'Mental disorder' does not include:
(A) A disorder manifested solely by repeated criminal or
otherwise antisocial conduct; or
(B) A disorder constituting solely a personality disorder.
(c) A mental disorder is 'resistant to treatment' if, after
receiving care from a licensed psychiatrist and exhausting all
reasonable psychiatric treatment, or after refusing psychiatric
treatment, the person continues to be significantly impaired in
the person's ability to make competent decisions and to be aware
of and control extremely dangerous behavior.
(2)(a) A district attorney may petition the court to initiate
commitment proceedings described in this section if there is
reason to believe a person is an extremely dangerous mentally ill
person. The petition shall immediately be served upon the person.
(b) The person shall be advised in writing of:
(A) The allegation that the person is an extremely dangerous
mentally ill person and may be committed to the jurisdiction of
the Psychiatric Security Review Board for a maximum period of 24
months; and
Enrolled Senate Bill 421 (SB 421-C) Page 1
(B) The right to a hearing to determine whether the person is
an extremely dangerous mentally ill person, unless the person
consents to the commitment by waiving the right to a hearing in
writing after consultation with legal counsel.
(c) A person against whom a petition described in this
subsection is filed shall have the following:
(A) The right to obtain suitable legal counsel possessing
skills and experience commensurate with the nature of the
allegations and complexity of the case and, if the person is
without funds to retain legal counsel, the right to have the
court appoint legal counsel;
(B) The right to subpoena witnesses and to offer evidence on
behalf of the person at the hearing;
(C) The right to cross-examine any witnesses who appear at the
hearing; and
(D) The right to examine all reports, documents and information
that the court considers, including the right to examine the
reports, documents and information prior to the hearing, if
available.
(d) The court shall appoint an examiner as described in ORS
426.110 to evaluate the person.
(3)(a) Upon receipt of a petition filed under subsection (2) of
this section, the court shall schedule a hearing. At the hearing,
the court shall order the person committed as an extremely
dangerous mentally ill person under the jurisdiction of the
Psychiatric Security Review Board for a maximum of 24 months if
the court finds, by clear and convincing evidence, that:
(A) The person is extremely dangerous;
(B) The person suffers from a mental disorder that is resistant
to treatment; and
(C) Because of the mental disorder that is resistant to
treatment, the person committed one of the following acts:
(i) Caused the death of another person;
(ii) Caused serious physical injury to another person by means
of a dangerous weapon;
(iii) Caused physical injury to another person by means of a
firearm as defined in ORS 166.210 or an explosive as defined in
ORS 164.055;
(iv) Engaged in oral-genital contact with a child under 14
years of age;
(v) Forcibly compelled sexual intercourse, oral-genital contact
or the penetration of another person's anus or vagina; or
(vi) Caused a fire or explosion that damaged the protected
property of another, as those terms are defined in ORS 164.305,
or placed another person in danger of physical injury, and the
fire or explosion was not the incidental result of normal and
usual daily activities.
(b) The court shall further commit the person to a state
hospital for custody, care and treatment if the court finds, by
clear and convincing evidence, that the person cannot be
controlled in the community with proper care, medication,
supervision and treatment on conditional release.
(c) The court shall specify in the order whether any person who
would be considered a victim as defined in ORS 131.007 of the act
described in paragraph (a)(C) of this subsection, if the act had
been criminally prosecuted, requests notification of any order or
hearing, conditional release, discharge or escape of the person
committed under this section.
(d) The court shall be fully advised of all drugs and other
treatment known to have been administered to the alleged
Enrolled Senate Bill 421 (SB 421-C) Page 2
extremely dangerous mentally ill person that may substantially
affect the ability of the person to prepare for, or to function
effectively at, the hearing.
(e) The provisions of ORS 40.230, 40.235, 40.240, 40.250 and
179.505 do not apply to the use of the examiner's report and the
court may consider the report as evidence.
(4) The findings of the court that a person committed an act
described in subsection (3)(a)(C) of this section may not be
admitted in a criminal prosecution.
(5) A person committed under this section shall remain under
the jurisdiction of the board for a maximum of 24 months unless
the board conducts a hearing and makes the findings described in
subsection (6)(d) of this section.
(6)(a) The board shall hold a hearing six months after the
initial commitment described in subsection (3) of this section,
and thereafter six months after a further commitment described in
section 3 of this 2013 Act, to determine the placement of the
person and whether the person is eligible for conditional release
or early discharge. The board shall provide written notice of the
hearing to the person, the person's legal counsel and the office
of the district attorney who filed the initial petition under
subsection (2) of this section within a reasonable time prior to
the hearing. The board shall further notify the person of the
following:
(A) The nature of the hearing and possible outcomes;
(B) The right to appear at the hearing and present evidence;
(C) The right to be represented by legal counsel and, if the
person is without funds to retain legal counsel, the right to
have the court appoint legal counsel;
(D) The right to subpoena witnesses;
(E) The right to cross-examine witnesses who appear at the
hearing; and
(F) The right to examine all reports, documents and information
that the board considers, including the right to examine the
reports, documents and information prior to the hearing if
available.
(b) If the board determines at the hearing that the person
still suffers from a mental disorder that is resistant to
treatment and continues to be extremely dangerous, and that the
person cannot be controlled in the community with proper care,
medication, supervision and treatment if conditionally released,
the person shall remain committed to a state hospital.
(c) If the board determines at the hearing that the person
still suffers from a mental disorder that is resistant to
treatment and continues to be extremely dangerous, but finds that
the person can be controlled in the community with proper care,
medication, supervision and treatment if conditionally released,
the board shall conditionally release the person.
(d) If the board determines at the hearing that the person no
longer suffers from a mental disorder that is resistant to
treatment or is no longer extremely dangerous, the board shall
discharge the person. The discharge of a person committed under
this section does not preclude commitment of the person pursuant
to ORS 426.005 to 426.390.
(7)(a) At any time during the commitment to a state hospital,
the superintendent of the state hospital may request a hearing to
determine the status of the person's commitment under the
jurisdiction of the board. The request shall be accompanied by a
report setting forth the facts supporting the request. If the
request is for conditional release, the request shall be
Enrolled Senate Bill 421 (SB 421-C) Page 3
accompanied by a verified conditional release plan. The hearing
shall be conducted as described in subsection (6) of this
section.
(b) The board may make the findings described in subsection
(6)(c) of this section and conditionally release the person
without a hearing if the office of the district attorney who
filed the initial petition under subsection (2) of this section
does not object to the conditional release.
(c) At any time during conditional release, a state or local
mental health facility providing treatment to the person may
request a hearing to determine the status of the person's
commitment under the jurisdiction of the board. The hearing shall
be conducted as described in subsection (6) of this section.
(8)(a) If the board orders the conditional release of a person
under subsection (6)(c) of this section, the board shall order
conditions of release that may include a requirement to report to
any state or local mental health facility for evaluation. The
board may further require cooperation with, and acceptance of,
psychiatric or psychological treatment from the facility.
Conditions of release may be modified by the board from time to
time.
(b) When a person is referred to a state or local mental health
facility for an evaluation under this subsection, the facility
shall perform the evaluation and submit a written report of its
findings to the board. If the facility finds that treatment of
the person is appropriate, the facility shall include its
recommendations for treatment in the report to the board.
(c) Whenever treatment is provided to the person by a state or
local mental health facility under this subsection, the facility
shall furnish reports to the board on a regular basis concerning
the progress of the person.
(d) Copies of all reports submitted to the board pursuant to
this subsection shall be furnished to the person and to the
person's legal counsel, if applicable. The confidentiality of
these reports is determined pursuant to ORS 192.501 to 192.505.
(e) The state or local mental health facility providing
treatment to the person under this subsection shall comply with
the conditional release order and any modifications of the
conditions ordered by the board.
(9)(a) If at any time while the person is conditionally
released it appears that the person has violated the terms of the
conditional release, the board may order the person returned to a
state hospital for evaluation or treatment. A written order of
the board is sufficient warrant for any law enforcement officer
to take the person into custody. A sheriff, municipal police
officer, parole or probation officer or other peace officer shall
execute the order, and the person shall be returned to the state
hospital as soon as practicable.
(b) The director of a state or local mental health facility
providing treatment to a person under subsection (8) of this
section may request that the board issue a written order for a
person on conditional release to be taken into custody if there
is reason to believe that the person can no longer be controlled
in the community with proper care, medication, supervision and
treatment.
(c) Within 30 days following the return of the person to a
state hospital, the board shall conduct a hearing to determine
if, by a preponderance of the evidence, the person is no longer
fit for conditional release. The board shall provide written
notice of the hearing to the person, the person's legal counsel
Enrolled Senate Bill 421 (SB 421-C) Page 4
and the office of the district attorney who filed the initial
petition under subsection (2) of this section within a reasonable
time prior to the hearing. The notice shall advise the person of
the nature of the hearing, the right to have the court appoint
legal counsel and the right to subpoena witnesses, examine
documents considered by the board and cross-examine all witnesses
who appear at the hearing.
(10)(a) If the person had unadjudicated criminal charges at the
time of the person's initial commitment under this section and
the state hospital or the state or local mental health facility
providing treatment to the person intends to recommend discharge
of the person at an upcoming hearing, the superintendent of the
state hospital or the director of the facility shall provide
written notice to the board and the district attorney of the
county where the criminal charges were initiated of the discharge
recommendation at least 45 days before the hearing. The notice
shall be accompanied by a report describing the person's
diagnosis and the treatment the person has received.
(b) Upon receiving the notice described in this subsection, the
district attorney may request an order from the court in the
county where the criminal charges were initiated for an
evaluation to determine if the person is fit to proceed in the
criminal proceeding. The court may order the state hospital or
the state or local mental health facility providing treatment to
the person to perform the evaluation. The hospital or facility
shall provide copies of the evaluation to the district attorney,
the person and the person's legal counsel, if applicable.
(c) The person committed under this section may not waive an
evaluation ordered by the court to determine if the person is fit
to proceed with the criminal proceeding as described in this
subsection.
(11) The board shall make reasonable efforts to notify any
person described in subsection (3)(c) of this section of any
order or hearing, conditional release, discharge or escape of the
person committed under this section.
(12) The board shall adopt rules to carry out the provisions of
this section and section 3 of this 2013 Act.
(13) Any time limitation described in ORS 131.125 to 131.155
does not run during a commitment described in this section or a
further commitment described in section 3 of this 2013 Act. + }
SECTION 3. { + (1)(a) At the end of the 24-month period of
commitment described in section 2 of this 2013 Act, any person
who remains committed under the jurisdiction of the Psychiatric
Security Review Board shall be discharged, unless the board
certifies to the court in the county where the state hospital or
state or local mental health facility providing treatment to the
person is located that the person is still extremely dangerous
and suffers from a mental disorder that is resistant to
treatment. The board, pursuant to its rules, may delegate to the
superintendent of the state hospital or the director of the state
or local mental health facility providing treatment to the person
the responsibility for making the certification. If the
certification is made, the person will not be released.
(b) The board may additionally certify that the person cannot
be controlled in the community with proper care, medication,
supervision and treatment on conditional release and must be
committed to a state hospital. The board, pursuant to its rules,
may delegate to the superintendent of the state hospital or the
director of the state or local mental health facility providing
Enrolled Senate Bill 421 (SB 421-C) Page 5
treatment to the person the responsibility for making the
additional certification.
(2) The certification shall immediately be served upon the
person by the superintendent of the state hospital or the
director of the state or local mental health facility providing
treatment to the person. The superintendent or director 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 board, hospital or facility has requested that
commitment be continued for an additional 24 months.
(b) That the person may protest this further commitment within
14 days, and that, if the person does not protest, the commitment
will be continued for a maximum of 24 months.
(c) That the person may consult with legal counsel when
deciding whether to protest the further commitment and that legal
counsel will be provided for the person without cost if the
person is without funds to retain legal counsel.
(d) That the person may protest a further period of commitment
either orally or in writing by signing the form accompanying the
certification.
(e) That if the person does protest a further period of
commitment, the person is entitled to a hearing before the court
to determine whether commitment should be continued.
(f) That the person is entitled to have a psychologist or
psychiatrist, other than a member of the staff at the facility
where the person is being treated, examine the person and report
to the court the results of the examination at the hearing.
(g) That the person may subpoena witnesses and offer evidence
on behalf of the person at the hearing.
(h) That if the person is without funds to retain legal counsel
or an examining psychologist or psychiatrist for the hearing, the
court will appoint legal counsel or an examining psychologist or
psychiatrist.
(4) 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 a
further period of commitment and request a hearing 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 board, hospital or facility shall so notify
the court, and the court shall, without further hearing, order
the commitment of the person to the jurisdiction of the board for
a maximum of 24 months. The court shall further order that the
person be committed to a state hospital if a certification under
subsection (1)(b) of this section has been made.
(5) When the person protests a further period of commitment and
requests a hearing, the board, hospital or facility shall
immediately notify the court, and the court shall have the person
brought before it and shall again advise the person that the
board, hospital 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 a maximum of 24 months. The person shall also be informed of
the rights set forth in subsection (3) of this section.
(6) If the person requests a hearing under subsections (4) and
(5) of this section, the following provisions apply as described:
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(a) The hearing shall be conducted as promptly as possible and
at a time and place as the court may direct.
(b) 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 described in ORS 426.095 (2)(c).
(c) The person has the right to representation by or
appointment of legal counsel subject to ORS 135.055, 151.216 and
151.219.
(d) If the person requests an examination by a psychologist or
psychiatrist and is without funds to retain a psychologist or
psychiatrist for purposes of the examination, the court shall
appoint a psychologist or psychiatrist, other than a member of
the staff from the facility where the person is being treated, to
examine the person at no expense to the person and to report to
the court the results of the examination.
(e) The provisions of ORS 40.230, 40.235, 40.240, 40.250 and
179.505 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.
(f) The court shall then conduct a hearing. The court may take
judicial notice of the findings regarding the act described in
section 2 (3)(a)(C) of this 2013 Act made by the court at the
initial commitment. If, after hearing the evidence and reviewing
the recommendations of the board and the state hospital or the
state or local mental health facility providing treatment to the
person, in the opinion of the court the person is still extremely
dangerous and suffering from a mental disorder that is resistant
to treatment by clear and convincing evidence, the court may
order commitment to the jurisdiction of the board for an
additional maximum of 24 months. The court shall further commit
the person to a state hospital for custody, care and treatment if
the court finds, by clear and convincing evidence, that the
person cannot be controlled in the community with proper care,
medication, supervision and treatment on conditional release.
(g) At the end of the 24-month period, the person shall be
discharged unless the board, hospital or facility again certifies
to the committing court that the person is still an extremely
dangerous mentally ill person and in need of further treatment,
in which event the procedures set forth in this section shall be
followed. + }
SECTION 4. ORS 426.095 is amended to read:
426.095. The following is applicable to a commitment hearing
held by a court under ORS 426.070:
(1) The hearing may be held in a hospital, the person's home or
in some other place convenient to the court and the allegedly
mentally ill person.
(2) The court shall hold the hearing at the time established
according to the following:
(a) Except as provided by paragraph (b) or (c) of this
subsection, a hearing shall be held five judicial days from the
day a court under ORS 426.070 issues a citation provided under
ORS 426.090.
(b) Except as provided by paragraph (c) of this subsection, if
a person is detained by a warrant of detention under ORS 426.070,
a hearing shall be held within five judicial days of the
commencement of detention.
Enrolled Senate Bill 421 (SB 421-C) Page 7
(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 { + or section 3 of this 2013 Act + } 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 or extremely
dangerous mentally ill + } person.
(B) The legal counsel or guardian of the allegedly mentally
ill { + person or extremely dangerous 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.
SECTION 5. ORS 426.110 is amended to read:
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426.110. The following requirements relating to the appointment
of examiners for purposes of a hearing under ORS 426.095 { + or
sections 2 and 3 of this 2013 Act + } 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 { + or the Psychiatric Security Review Board + } by
rule.
(B) Certified { + by the authority or the Psychiatric Security
Review Board + } as a mental health examiner qualified to make
examinations for involuntary commitment proceedings { - by the
authority - } . The authority { + or the Psychiatric Security
Review Board + } 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.
SECTION 6. ORS 426.135 is amended to read:
426.135. If a person determined to be mentally ill as provided
in ORS 426.130 { + , or determined to be an extremely dangerous
mentally ill person under section 2 or 3 of this 2013 Act, + }
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.
SECTION 7. ORS 426.160 is amended to read:
426.160. (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 { + and sections 2 and 3 of this 2013 Act + } may not
disclose any part of the record of the proceeding { + or
commitment + } 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.
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(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.
SECTION 8. ORS 426.241 is amended to read:
426.241. (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, { + or determined to be an extremely dangerous
mentally ill person under section 2 or 3 of this 2013 Act, + }
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
Enrolled Senate Bill 421 (SB 421-C) Page 10
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.
SECTION 9. ORS 426.250, as amended by section 4, chapter 25,
Oregon Laws 2012, is amended to read:
426.250. 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
{ + or section 2 or 3 of this 2013 Act + } 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 426.180 { + or section 2 or 3 of this 2013 Act + },
including the costs of transportation, commitment and delivery of
the person, shall be paid by the county of which the person is a
resident. If the person is not a resident of this state, then the
costs incurred in connection with the proceeding shall be paid by
the county from which the emergency admission was made.
Enrolled Senate Bill 421 (SB 421-C) Page 11
(6) All costs incurred in connection with a proceeding under
ORS 426.180 for the commitment of a person from a reservation,
including the cost of transportation, commitment and delivery of
the person, shall be paid by the governing body of the
reservation of which the person is a resident.
SECTION 10. { + In addition to and not in lieu of any other
appropriation, there is appropriated to the Oregon Health
Authority, for the biennium beginning July 1, 2013, out of the
General Fund, the amount of $169,571, for the purposes of
carrying out the provisions of sections 2 and 3 of this 2013 Act
and the amendments to ORS 426.095, 426.110, 426.135, 426.160,
426.241 and 426.250 by sections 4 to 9 of this 2013 Act. + }
SECTION 11. { + In addition to and not in lieu of any other
appropriation, there is appropriated to the Psychiatric Security
Review Board, for the biennium beginning July 1, 2013, out of the
General Fund, the amount of $36,100, for the purposes of carrying
out the provisions of sections 2 and 3 of this 2013 Act and the
amendments to ORS 426.095, 426.110, 426.135, 426.160, 426.241 and
426.250 by sections 4 to 9 of this 2013 Act. + }
SECTION 12. { + If Senate Bill 426 becomes law, sections 23
(amending ORS 426.095), 25 (amending ORS 426.110), 31 (amending
ORS 426.135), 35 (amending ORS 426.160) and 45 (amending ORS
426.241), chapter 360, Oregon Laws 2013 (Enrolled Senate Bill
426), are repealed. + }
SECTION 13. If Senate Bill 426 becomes law, section 2 of this
2013 Act is amended to read:
{ + Sec. 2. + } (1) For the purposes of this section and
section 3 of this 2013 Act:
(a) A person is 'extremely dangerous' if the person:
(A) Is at least 18 years of age;
(B) Is exhibiting symptoms or behaviors of a mental disorder
substantially similar to those that preceded the act described in
subsection (3)(a)(C) of this section; and
(C) Because of a mental disorder:
(i) Presents a serious danger to the safety of other persons by
reason of an extreme risk that the person will inflict grave or
potentially lethal physical injury on other persons; and
(ii) Unless committed, will continue to represent an extreme
risk to the safety of other persons in the foreseeable future.
(b) 'Mental disorder' does not include:
(A) A disorder manifested solely by repeated criminal or
otherwise antisocial conduct; or
(B) A disorder constituting solely a personality disorder.
(c) A mental disorder is 'resistant to treatment' if, after
receiving care from a licensed psychiatrist and exhausting all
reasonable psychiatric treatment, or after refusing psychiatric
treatment, the person continues to be significantly impaired in
the person's ability to make competent decisions and to be aware
of and control extremely dangerous behavior.
(2)(a) A district attorney may petition the court to initiate
commitment proceedings described in this section if there is
reason to believe a person is an extremely dangerous
{ - mentally ill - } person { + with mental illness + }. The
petition shall immediately be served upon the person.
(b) The person shall be advised in writing of:
(A) The allegation that the person is an extremely dangerous
{ - mentally ill - } person { + with mental illness + } and
may be committed to the jurisdiction of the Psychiatric Security
Review Board for a maximum period of 24 months; and
Enrolled Senate Bill 421 (SB 421-C) Page 12
(B) The right to a hearing to determine whether the person is
an extremely dangerous { - mentally ill - } person { + with
mental illness + }, unless the person consents to the commitment
by waiving the right to a hearing in writing after consultation
with legal counsel.
(c) A person against whom a petition described in this
subsection is filed shall have the following:
(A) The right to obtain suitable legal counsel possessing
skills and experience commensurate with the nature of the
allegations and complexity of the case and, if the person is
without funds to retain legal counsel, the right to have the
court appoint legal counsel;
(B) The right to subpoena witnesses and to offer evidence on
behalf of the person at the hearing;
(C) The right to cross-examine any witnesses who appear at the
hearing; and
(D) The right to examine all reports, documents and information
that the court considers, including the right to examine the
reports, documents and information prior to the hearing, if
available.
(d) The court shall appoint an examiner as described in ORS
426.110 to evaluate the person.
(3)(a) Upon receipt of a petition filed under subsection (2) of
this section, the court shall schedule a hearing. At the hearing,
the court shall order the person committed as an extremely
dangerous { - mentally ill - } person { + with mental
illness + } under the jurisdiction of the Psychiatric Security
Review Board for a maximum of 24 months if the court finds, by
clear and convincing evidence, that:
(A) The person is extremely dangerous;
(B) The person suffers from a mental disorder that is resistant
to treatment; and
(C) Because of the mental disorder that is resistant to
treatment, the person committed one of the following acts:
(i) Caused the death of another person;
(ii) Caused serious physical injury to another person by means
of a dangerous weapon;
(iii) Caused physical injury to another person by means of a
firearm as defined in ORS 166.210 or an explosive as defined in
ORS 164.055;
(iv) Engaged in oral-genital contact with a child under 14
years of age;
(v) Forcibly compelled sexual intercourse, oral-genital contact
or the penetration of another person's anus or vagina; or
(vi) Caused a fire or explosion that damaged the protected
property of another, as those terms are defined in ORS 164.305,
or placed another person in danger of physical injury, and the
fire or explosion was not the incidental result of normal and
usual daily activities.
(b) The court shall further commit the person to a state
hospital for custody, care and treatment if the court finds, by
clear and convincing evidence, that the person cannot be
controlled in the community with proper care, medication,
supervision and treatment on conditional release.
(c) The court shall specify in the order whether any person who
would be considered a victim as defined in ORS 131.007 of the act
described in paragraph (a)(C) of this subsection, if the act had
been criminally prosecuted, requests notification of any order or
hearing, conditional release, discharge or escape of the person
committed under this section.
Enrolled Senate Bill 421 (SB 421-C) Page 13
(d) The court shall be fully advised of all drugs and other
treatment known to have been administered to the alleged
extremely dangerous { - mentally ill - } person { + with
mental illness + } that may substantially affect the ability of
the person to prepare for, or to function effectively at, the
hearing.
(e) The provisions of ORS 40.230, 40.235, 40.240, 40.250 and
179.505 do not apply to the use of the examiner's report and the
court may consider the report as evidence.
(4) The findings of the court that a person committed an act
described in subsection (3)(a)(C) of this section may not be
admitted in a criminal prosecution.
(5) A person committed under this section shall remain under
the jurisdiction of the board for a maximum of 24 months unless
the board conducts a hearing and makes the findings described in
subsection (6)(d) of this section.
(6)(a) The board shall hold a hearing six months after the
initial commitment described in subsection (3) of this section,
and thereafter six months after a further commitment described in
section 3 of this 2013 Act, to determine the placement of the
person and whether the person is eligible for conditional release
or early discharge. The board shall provide written notice of the
hearing to the person, the person's legal counsel and the office
of the district attorney who filed the initial petition under
subsection (2) of this section within a reasonable time prior to
the hearing. The board shall further notify the person of the
following:
(A) The nature of the hearing and possible outcomes;
(B) The right to appear at the hearing and present evidence;
(C) The right to be represented by legal counsel and, if the
person is without funds to retain legal counsel, the right to
have the court appoint legal counsel;
(D) The right to subpoena witnesses;
(E) The right to cross-examine witnesses who appear at the
hearing; and
(F) The right to examine all reports, documents and information
that the board considers, including the right to examine the
reports, documents and information prior to the hearing if
available.
(b) If the board determines at the hearing that the person
still suffers from a mental disorder that is resistant to
treatment and continues to be extremely dangerous, and that the
person cannot be controlled in the community with proper care,
medication, supervision and treatment if conditionally released,
the person shall remain committed to a state hospital.
(c) If the board determines at the hearing that the person
still suffers from a mental disorder that is resistant to
treatment and continues to be extremely dangerous, but finds that
the person can be controlled in the community with proper care,
medication, supervision and treatment if conditionally released,
the board shall conditionally release the person.
(d) If the board determines at the hearing that the person no
longer suffers from a mental disorder that is resistant to
treatment or is no longer extremely dangerous, the board shall
discharge the person. The discharge of a person committed under
this section does not preclude commitment of the person pursuant
to ORS 426.005 to 426.390.
(7)(a) At any time during the commitment to a state hospital,
the superintendent of the state hospital may request a hearing to
determine the status of the person's commitment under the
Enrolled Senate Bill 421 (SB 421-C) Page 14
jurisdiction of the board. The request shall be accompanied by a
report setting forth the facts supporting the request. If the
request is for conditional release, the request shall be
accompanied by a verified conditional release plan. The hearing
shall be conducted as described in subsection (6) of this
section.
(b) The board may make the findings described in subsection
(6)(c) of this section and conditionally release the person
without a hearing if the office of the district attorney who
filed the initial petition under subsection (2) of this section
does not object to the conditional release.
(c) At any time during conditional release, a state or local
mental health facility providing treatment to the person may
request a hearing to determine the status of the person's
commitment under the jurisdiction of the board. The hearing shall
be conducted as described in subsection (6) of this section.
(8)(a) If the board orders the conditional release of a person
under subsection (6)(c) of this section, the board shall order
conditions of release that may include a requirement to report to
any state or local mental health facility for evaluation. The
board may further require cooperation with, and acceptance of,
psychiatric or psychological treatment from the facility.
Conditions of release may be modified by the board from time to
time.
(b) When a person is referred to a state or local mental health
facility for an evaluation under this subsection, the facility
shall perform the evaluation and submit a written report of its
findings to the board. If the facility finds that treatment of
the person is appropriate, the facility shall include its
recommendations for treatment in the report to the board.
(c) Whenever treatment is provided to the person by a state or
local mental health facility under this subsection, the facility
shall furnish reports to the board on a regular basis concerning
the progress of the person.
(d) Copies of all reports submitted to the board pursuant to
this subsection shall be furnished to the person and to the
person's legal counsel, if applicable. The confidentiality of
these reports is determined pursuant to ORS 192.501 to 192.505.
(e) The state or local mental health facility providing
treatment to the person under this subsection shall comply with
the conditional release order and any modifications of the
conditions ordered by the board.
(9)(a) If at any time while the person is conditionally
released it appears that the person has violated the terms of the
conditional release, the board may order the person returned to a
state hospital for evaluation or treatment. A written order of
the board is sufficient warrant for any law enforcement officer
to take the person into custody. A sheriff, municipal police
officer, parole or probation officer or other peace officer shall
execute the order, and the person shall be returned to the state
hospital as soon as practicable.
(b) The director of a state or local mental health facility
providing treatment to a person under subsection (8) of this
section may request that the board issue a written order for a
person on conditional release to be taken into custody if there
is reason to believe that the person can no longer be controlled
in the community with proper care, medication, supervision and
treatment.
(c) Within 30 days following the return of the person to a
state hospital, the board shall conduct a hearing to determine
Enrolled Senate Bill 421 (SB 421-C) Page 15
if, by a preponderance of the evidence, the person is no longer
fit for conditional release. The board shall provide written
notice of the hearing to the person, the person's legal counsel
and the office of the district attorney who filed the initial
petition under subsection (2) of this section within a reasonable
time prior to the hearing. The notice shall advise the person of
the nature of the hearing, the right to have the court appoint
legal counsel and the right to subpoena witnesses, examine
documents considered by the board and cross-examine all witnesses
who appear at the hearing.
(10)(a) If the person had unadjudicated criminal charges at the
time of the person's initial commitment under this section and
the state hospital or the state or local mental health facility
providing treatment to the person intends to recommend discharge
of the person at an upcoming hearing, the superintendent of the
state hospital or the director of the facility shall provide
written notice to the board and the district attorney of the
county where the criminal charges were initiated of the discharge
recommendation at least 45 days before the hearing. The notice
shall be accompanied by a report describing the person's
diagnosis and the treatment the person has received.
(b) Upon receiving the notice described in this subsection, the
district attorney may request an order from the court in the
county where the criminal charges were initiated for an
evaluation to determine if the person is fit to proceed in the
criminal proceeding. The court may order the state hospital or
the state or local mental health facility providing treatment to
the person to perform the evaluation. The hospital or facility
shall provide copies of the evaluation to the district attorney,
the person and the person's legal counsel, if applicable.
(c) The person committed under this section may not waive an
evaluation ordered by the court to determine if the person is fit
to proceed with the criminal proceeding as described in this
subsection.
(11) The board shall make reasonable efforts to notify any
person described in subsection (3)(c) of this section of any
order or hearing, conditional release, discharge or escape of the
person committed under this section.
(12) The board shall adopt rules to carry out the provisions of
this section and section 3 of this 2013 Act.
(13) Any time limitation described in ORS 131.125 to 131.155
does not run during a commitment described in this section or a
further commitment described in section 3 of this 2013 Act.
SECTION 14. If Senate Bill 426 becomes law, section 3 of this
2013 Act is amended to read:
{ + Sec. 3. + } (1)(a) At the end of the 24-month period of
commitment described in section 2 of this 2013 Act, any person
who remains committed under the jurisdiction of the Psychiatric
Security Review Board shall be discharged, unless the board
certifies to the court in the county where the state hospital or
state or local mental health facility providing treatment to the
person is located that the person is still extremely dangerous
and suffers from a mental disorder that is resistant to
treatment. The board, pursuant to its rules, may delegate to the
superintendent of the state hospital or the director of the state
or local mental health facility providing treatment to the person
the responsibility for making the certification. If the
certification is made, the person will not be released.
(b) The board may additionally certify that the person cannot
be controlled in the community with proper care, medication,
Enrolled Senate Bill 421 (SB 421-C) Page 16
supervision and treatment on conditional release and must be
committed to a state hospital. The board, pursuant to its rules,
may delegate to the superintendent of the state hospital or the
director of the state or local mental health facility providing
treatment to the person the responsibility for making the
additional certification.
(2) The certification shall immediately be served upon the
person by the superintendent of the state hospital or the
director of the state or local mental health facility providing
treatment to the person. The superintendent or director 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 board, hospital or facility has requested that
commitment be continued for an additional 24 months.
(b) That the person may protest this further commitment within
14 days, and that, if the person does not protest, the commitment
will be continued for a maximum of 24 months.
(c) That the person may consult with legal counsel when
deciding whether to protest the further commitment and that legal
counsel will be provided for the person without cost if the
person is without funds to retain legal counsel.
(d) That the person may protest a further period of commitment
either orally or in writing by signing the form accompanying the
certification.
(e) That if the person does protest a further period of
commitment, the person is entitled to a hearing before the court
to determine whether commitment should be continued.
(f) That the person is entitled to have a psychologist or
psychiatrist, other than a member of the staff at the facility
where the person is being treated, examine the person and report
to the court the results of the examination at the hearing.
(g) That the person may subpoena witnesses and offer evidence
on behalf of the person at the hearing.
(h) That if the person is without funds to retain legal counsel
or an examining psychologist or psychiatrist for the hearing, the
court will appoint legal counsel or an examining psychologist or
psychiatrist.
(4) 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 a
further period of commitment and request a hearing 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 board, hospital or facility shall so notify
the court, and the court shall, without further hearing, order
the commitment of the person to the jurisdiction of the board for
a maximum of 24 months. The court shall further order that the
person be committed to a state hospital if a certification under
subsection (1)(b) of this section has been made.
(5) When the person protests a further period of commitment and
requests a hearing, the board, hospital or facility shall
immediately notify the court, and the court shall have the person
brought before it and shall again advise the person that the
board, hospital 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
Enrolled Senate Bill 421 (SB 421-C) Page 17
for a maximum of 24 months. The person shall also be informed of
the rights set forth in subsection (3) of this section.
(6) If the person requests a hearing under subsections (4) and
(5) of this section, the following provisions apply as described:
(a) The hearing shall be conducted as promptly as possible and
at a time and place as the court may direct.
(b) 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 described in ORS 426.095 (2)(c).
(c) The person has the right to representation by or
appointment of legal counsel subject to ORS 135.055, 151.216 and
151.219.
(d) If the person requests an examination by a psychologist or
psychiatrist and is without funds to retain a psychologist or
psychiatrist for purposes of the examination, the court shall
appoint a psychologist or psychiatrist, other than a member of
the staff from the facility where the person is being treated, to
examine the person at no expense to the person and to report to
the court the results of the examination.
(e) The provisions of ORS 40.230, 40.235, 40.240, 40.250 and
179.505 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.
(f) The court shall then conduct a hearing. The court may take
judicial notice of the findings regarding the act described in
section 2 (3)(a)(C) of this 2013 Act made by the court at the
initial commitment. If, after hearing the evidence and reviewing
the recommendations of the board and the state hospital or the
state or local mental health facility providing treatment to the
person, in the opinion of the court the person is still extremely
dangerous and suffering from a mental disorder that is resistant
to treatment by clear and convincing evidence, the court may
order commitment to the jurisdiction of the board for an
additional maximum of 24 months. The court shall further commit
the person to a state hospital for custody, care and treatment if
the court finds, by clear and convincing evidence, that the
person cannot be controlled in the community with proper care,
medication, supervision and treatment on conditional release.
(g) At the end of the 24-month period, the person shall be
discharged unless the board, hospital or facility again certifies
to the committing court that the person is still an extremely
dangerous { - mentally ill - } person { + with mental
illness + } and in need of further treatment, in which event the
procedures set forth in this section shall be followed.
SECTION 15. If Senate Bill 426 becomes law, ORS 426.095, as
amended by section 4 of this 2013 Act, is amended to read:
426.095. The following is applicable to a commitment hearing
held by a court under ORS 426.070:
(1) The hearing may be held in a hospital, the person's home or
in some other place convenient to the court and the
{ - allegedly mentally ill - } person { + alleged to have a
mental illness + }.
(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
Enrolled Senate Bill 421 (SB 421-C) Page 18
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 or section 3 of this 2013 Act 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 or extremely
dangerous mentally ill - } person { + alleged to have a mental
illness or the person alleged to be an extremely dangerous person
with mental illness + }.
(B) The legal counsel or guardian of the { - allegedly
mentally ill person or extremely dangerous mentally ill - }
person.
(C) The { - person - } { + individual + } representing the
state's interest.
(3) The { - allegedly mentally ill - } person { + alleged
to have a mental illness + } and the { - person - } { +
individual + } representing the state's interest shall have the
right to cross-examine all the following:
(a) Witnesses.
(b) The { - person - } { + individual + } conducting the
investigation.
(c) The examining physicians or other qualified
{ - persons - } { + professionals + } 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 - } { + individuals + } 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 { + alleged to have a mental illness + }.
Enrolled Senate Bill 421 (SB 421-C) Page 19
(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 { + alleged to have a
mental illness + } or counsel for the { - allegedly mentally
ill - } person.
SECTION 16. If Senate Bill 426 becomes law, ORS 426.110, as
amended by section 5 of this 2013 Act, is amended to read:
426.110. The following requirements relating to the appointment
of examiners for purposes of a hearing under ORS 426.095 or
sections 2 and 3 of this 2013 Act 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 { + alleged to have a
mental illness + } 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 or the Psychiatric Security Review Board by rule.
(B) Certified by the authority or the Psychiatric Security
Review Board as a mental health examiner qualified to make
examinations for involuntary commitment proceedings. { +
(3) + } The authority or the Psychiatric Security Review Board
may establish, by rule, requirements for certification as a
mental health examiner for purposes of { - this
subparagraph - } { + subsection (2)(b)(B) of this section + }.
{ - (3) - } { + (4) + } The cost of examiners under this
section shall be paid as provided under ORS 426.250.
SECTION 17. If Senate Bill 426 becomes law, ORS 426.135, as
amended by section 6 of this 2013 Act, is amended to read:
426.135. If a person determined to be { - mentally ill - }
{ + a person with mental illness + } as provided in ORS
426.130, or determined to be an extremely dangerous
{ - mentally ill - } person { + with mental illness + } under
section 2 or 3 of this 2013 Act, appeals the determination or
{ + the + } 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.
SECTION 18. If Senate Bill 426 becomes law, ORS 426.160, as
amended by section 7 of this 2013 Act, is amended to read:
Enrolled Senate Bill 421 (SB 421-C) Page 20
426.160. (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 and sections 2 and 3 of this 2013 Act may not disclose
any part of the record of the proceeding or commitment 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 { + subject to the proceeding + }.
SECTION 19. If Senate Bill 426 becomes law, ORS 426.241, as
amended by section 8 of this 2013 Act, is amended to read:
426.241. (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 - } { + a person alleged to have a mental
illness who is + } admitted or detained under ORS 426.070,
426.140, 426.228, 426.232 or 426.233, or for a { - mentally
ill - } person { + with mental illness who is + } 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 - } { + to the county + }
for this purpose. The county is responsible for the cost when
state funds
{ - available therefor - } { + provided to the county + } 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, - } { + legally or financially responsible
individuals or entities + } 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, - } { + legally or
Enrolled Senate Bill 421 (SB 421-C) Page 21
financially responsible individuals or entities + } 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 - } { + to
have a mental illness + } under the provisions of ORS 426.130, or
determined to be an extremely dangerous { - mentally ill - }
person { + with mental illness + } under section 2 or 3 of this
2013 Act, 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, - } { + legally or financially responsible
individuals or entities + } 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 { + of the person alleged
to have a mental illness + } 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.
SECTION 20. { + If Senate Bill 426 becomes law, the amendments
to sections 2 and 3 of this 2013 Act and ORS 426.095, 426.110,
426.135, 426.160 and 426.241 by sections 13 to 19 of this 2013
Act become operative on the effective date of chapter 360, Oregon
Laws 2013 (Enrolled Senate Bill 426). + }
SECTION 21. If Senate Bill 426 becomes law, section 69, chapter
360, Oregon Laws 2013 (Enrolled Senate Bill 426), is amended to
read:
{ + Sec. 69. + } The amendments to ORS 21.010, 109.322,
135.775, 166.250, 166.291, 166.470, 179.473, 408.570, 419C.529,
421.245, 421.284, 421.296, 426.005, 426.010, 426.060, 426.070,
426.072, 426.074, 426.075, 426.090, 426.095, 426.100, 426.110,
426.120, 426.123, 426.125, 426.127, 426.130, 426.135, 426.140,
426.150, 426.155, 426.160, 426.170, 426.223, 426.228, 426.231,
426.232, 426.233, 426.234, 426.235, 426.237, 426.241, 426.250,
426.255, 426.273, 426.275, 426.278, 426.292, 426.297, 426.300,
426.301, 426.307, 426.310, 426.320, 426.335, 426.370, 426.385,
426.500, 428.310, 480.225, 677.225 and 680.205 and section 5,
Enrolled Senate Bill 421 (SB 421-C) Page 22
chapter 826, Oregon Laws 2009, by sections 1, 3 to 6, 8, 10 and
12 to 68 { + , chapter 360, Oregon Laws 2013 (Enrolled Senate
Bill 426), + } { - of this 2013 Act - } { + and sections 15
to 19 of this 2013 Act + } apply to proceedings initiated under
ORS 426.070, 426.228 to 426.235, 426.237, 426.300, 426.301 to
426.307 or 426.380 on or after the effective date of { + chapter
360, Oregon Laws 2013 (Enrolled Senate Bill 426) + } { - this
2013 Act - } .
SECTION 22. { + This 2013 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2013 Act takes effect on
its passage. + }
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Passed by Senate June 24, 2013
Repassed by Senate July 6, 2013
.............................................................
Robert Taylor, Secretary of Senate
.............................................................
Peter Courtney, President of Senate
Passed by House July 2, 2013
.............................................................
Tina Kotek, Speaker of House
Enrolled Senate Bill 421 (SB 421-C) Page 23
Received by Governor:
......M.,............., 2013
Approved:
......M.,............., 2013
.............................................................
John Kitzhaber, Governor
Filed in Office of Secretary of State:
......M.,............., 2013
.............................................................
Kate Brown, Secretary of State
Enrolled Senate Bill 421 (SB 421-C) Page 24