77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 2786
Senate Bill 637
Sponsored by COMMITTEE ON JUDICIARY
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Authorizes court, upon finding defendant unfit to proceed by
reason of incapacity, to order involuntary medication of
defendant under specified conditions.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to involuntary medication of defendant who is found
unfit to proceed by reason of incapacity; creating new
provisions; amending ORS 127.720 and 161.370; and declaring an
emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 161.370 is amended to read:
161.370. (1) When the defendant's fitness to proceed is drawn
in question, the issue shall be determined by the court. If
neither the prosecuting attorney nor counsel for the defendant
contests the { - finding - } { + findings or treatment
recommendations + } of the report filed under ORS 161.365, the
court may make the determination on the basis of the report. If
the { - finding is - } { + findings or treatment
recommendations are + } contested, the court shall hold a hearing
on the issue. If the report is received in evidence in the
hearing, the party who contests the { - finding - } { +
findings or treatment recommendations + } has the right to summon
and to cross-examine any psychiatrist or psychologist who
submitted the report and to offer evidence upon the issue. Other
evidence regarding the defendant's fitness to proceed may be
introduced by either party.
(2) If the court determines that the defendant lacks fitness to
proceed, the criminal proceeding against the defendant shall be
suspended and:
(a) If the court finds that the defendant is dangerous to self
or others as a result of mental disease or defect, or that the
services and supervision necessary to restore the defendant's
fitness to proceed are not available in the community, the
court { + :
(A) + } Shall commit the defendant to the custody of the
superintendent of a state mental hospital or director of a
facility, designated by the Oregon Health Authority, if the
defendant is at least 18 years of age, or to the custody of the
director of a secure intensive community inpatient facility
designated by the authority if the defendant is under 18 years of
age; { + and
(B) May order the defendant to be administered medication
without the defendant's informed consent if the court finds that:
(i) Administration of the medication is substantially likely to
render the defendant fit to proceed;
(ii) The medication to be administered is substantially
unlikely to have side effects that will interfere significantly
with the defendant's ability to assist counsel in conducting a
trial defense;
(iii) There are no less intrusive means for administering the
medication;
(iv) Administration of the medication is in the defendant's
best interest and medically appropriate; and
(v) There are important governmental interests at stake in
bringing the defendant to trial and the involuntary
administration of the medication will significantly further those
governmental interests; + } or
(b) If the court does not make a finding described in paragraph
(a) of this subsection, or if the court determines that care
other than commitment for incapacity to stand trial would better
serve the defendant and the community, the court shall release
the defendant on supervision for as long as the unfitness
endures.
(3) When a defendant is released on supervision under this
section, the court may place conditions that the court deems
appropriate on the release, including the requirement that the
defendant regularly report to the authority or a community mental
health program for examination to determine if the defendant has
regained capacity to stand trial.
(4) When the court, on its own motion or upon the application
of the superintendent of the hospital or director of the facility
in which the defendant is committed, a person examining the
defendant as a condition of release on supervision, or either
party, determines, after a hearing, if a hearing is requested,
that the defendant has regained fitness to proceed, the criminal
proceeding shall be resumed. If, however, the court is of the
view that so much time has elapsed since the commitment or
release of the defendant on supervision that it would be unjust
to resume the criminal proceeding, the court on motion of either
party may dismiss the charge and may order the defendant to be
discharged or cause a proceeding to be commenced forthwith under
ORS 426.070 to 426.170 or 427.235 to 427.290.
(5) The superintendent of a state hospital or director of a
facility to which the defendant is committed shall cause the
defendant to be evaluated within 60 days from the defendant's
delivery into the superintendent's or director's custody, for the
purpose of determining whether there is a substantial probability
that, in the foreseeable future, the defendant will have the
capacity to stand trial. In addition, the superintendent or
director shall:
(a) Immediately notify the committing court if the defendant,
at any time, gains or regains the capacity to stand trial or will
never have the capacity to stand trial.
(b) Within 90 days of the defendant's delivery into the
superintendent's or director's custody, notify the committing
court that:
(A) The defendant has the present capacity to stand trial;
(B) There is no substantial probability that, in the
foreseeable future, the defendant will gain or regain the
capacity to stand trial; or
(C) There is a substantial probability that, in the foreseeable
future, the defendant will gain or regain the capacity to stand
trial. If the probability exists, the superintendent or director
shall give the court an estimate of the time in which the
defendant, with appropriate treatment, is expected to gain or
regain capacity.
(6)(a) If the superintendent or director determines that there
is a substantial probability that, in the foreseeable future, the
defendant will gain or regain the capacity to stand trial, unless
the court otherwise orders, the defendant shall remain in the
superintendent's or director's custody where the defendant shall
receive treatment designed for the purpose of enabling the
defendant to gain or regain capacity. In keeping with the notice
requirement under subsection (5)(b) of this section, the
superintendent or director shall, for the duration of the
defendant's period of commitment, submit a progress report to the
committing court, concerning the defendant's capacity or
incapacity, at least once every 180 days as measured from the
date of the defendant's delivery into the superintendent's or
director's custody.
(b) Notwithstanding paragraph (a) of this subsection, if the
superintendent or director determines that a defendant committed
under this section is no longer dangerous to self or others as a
result of mental disease or defect, or that the services and
supervision necessary to restore the defendant's fitness to
proceed are available in the community, the superintendent or
director shall file notice of that determination with the court.
Upon receipt of the notice, the court shall order the person
released on supervision as described in subsection (3) of this
section.
(7)(a) A defendant who remains committed under subsection (6)
of this section shall be discharged within a period of time that
is reasonable for making a determination concerning whether or
not, and when, the defendant may gain or regain capacity.
However, regardless of the number of charges with which the
defendant is accused, in no event shall the defendant be
committed for longer than whichever of the following, measured
from the defendant's initial custody date, is shorter:
(A) Three years; or
(B) A period of time equal to the maximum sentence the court
could have imposed if the defendant had been convicted.
(b) For purposes of calculating the maximum period of
commitment described in paragraph (a) of this subsection:
(A) The initial custody date is the date on which the defendant
is first committed under this section on any charge alleged in
the accusatory instrument; and
(B) The defendant shall be given credit against each charge
alleged in the accusatory instrument for each day the defendant
is committed under this section, whether the days are consecutive
or are interrupted by a period of time during which the defendant
has regained fitness to proceed.
(8) The superintendent or director shall notify the committing
court of the defendant's impending discharge 30 days before the
date on which the superintendent or director is required to
discharge the defendant under subsection (7) of this section.
(9) When the committing court receives a notice from the
superintendent or director under subsection (5) or (8) of this
section concerning the defendant's progress or lack thereof, the
committing court shall determine, after a hearing, if a hearing
is requested, whether the defendant presently has the capacity to
stand trial.
(10) If at any time the court determines that the defendant
lacks the capacity to stand trial, the court shall further
determine whether there is a substantial probability that the
defendant, in the foreseeable future, will gain or regain the
capacity to stand trial and whether the defendant is entitled to
discharge under subsection (7) of this section. If the court
determines that there is no substantial probability that the
defendant, in the foreseeable future, will gain or regain the
capacity to stand trial or that the defendant is entitled to
discharge under subsection (7) of this section, the court shall
dismiss, without prejudice, all charges against the defendant
and:
(a) Order that the defendant be discharged; or
(b) Initiate commitment proceedings under ORS 426.070 or
427.235 to 427.290.
(11) All notices required under this section shall be filed
with the clerk of the court and delivered to both the district
attorney and the counsel for the defendant.
(12) If the defendant regains fitness to proceed, the term of
any sentence received by the defendant for conviction of the
crime charged shall be reduced by the amount of time the
defendant was committed under this section to the custody of a
state mental hospital, or to the custody of a secure intensive
community inpatient facility, designated by the Oregon Health
Authority.
(13) Notwithstanding the suspension of the criminal proceeding
under subsection (2) of this section, the fact that the defendant
is unfit to proceed does not preclude any objection through
counsel and without the personal participation of the defendant
on the grounds that the indictment is insufficient, that the
statute of limitations has run, that double jeopardy principles
apply or upon any other ground at the discretion of the court
which the court deems susceptible of fair determination prior to
trial.
SECTION 2. ORS 127.720 is amended to read:
127.720. (1) The physician or provider may subject the
principal to mental health treatment in a manner contrary to the
principal's wishes as expressed in a declaration for mental
health treatment only:
(a) If the principal is committed to the Oregon Health
Authority pursuant to ORS 426.005 to 426.390 and treatment is
authorized in compliance with ORS 426.385 (3) and administrative
rule.
(b) If treatment is authorized in compliance with
administrative rule and:
(A) The principal is committed to a state hospital or secure
intensive community inpatient facility:
(i) As a result of being found guilty except for insanity under
ORS 161.295 or responsible except for insanity under ORS
419C.411; { + or + }
(ii) Under ORS 161.365; or
{ - (iii) Under ORS 161.370; or - }
(B) The principal is transferred to a state hospital or other
facility under ORS 179.473 or 419C.530.
{ + (c) If the principal is committed to a state mental
hospital or facility, or a secure intensive community inpatient
facility, under ORS 161.370 and the court has ordered the
administration of medication in accordance with ORS 161.370. + }
{ - (c) - } { + (d) + } In cases of emergency endangering
life or health.
(2) A declaration does not limit any authority provided in ORS
426.005 to 426.390 either to take a person into custody, or to
admit, retain or treat a person in a health care facility.
SECTION 3. { + The amendments to ORS 127.720 and 161.370 by
sections 1 and 2 of this 2013 Act apply to proceedings under ORS
161.370 to determine a defendant's fitness to proceed that are
initiated on or after the effective date of this 2013 Act. + }
SECTION 4. { + 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. + }
----------