US Laws, Codes, Statutes & Cases

TITLE 35

MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES;

ALCOHOL AND DRUG ABUSE

 

Chapter     426.     Persons With Mental Illness; Sexually Dangerous Persons

                  427.     Persons With Mental Retardation; Persons With Developmental Disabilities

                  428.     Nonresident Persons With Mental Disabilities

                  430.     Administration; Alcohol and Drug Abuse Programs

 

_______________

 

Chapter 426 — Persons With Mental Illness; Sexually Dangerous Persons

 

2007 EDITION

 

MENTALLY ILL AND SEXUALLY DANGEROUS PERSONS

 

MENTAL HEALTH; ALCOHOL AND DRUG ABUSE

 

PERSONS WITH MENTAL ILLNESS

 

(Definitions)

 

426.005     Definitions for ORS 426.005 to 426.390

 

(Hospitals)

 

426.010     State hospitals for mentally ill persons

 

426.020     Superintendent; chief medical officer

 

426.060     Commitment to Department of Human Services; authority of department to direct placement; transfer authority; delegation

 

(Commitment Procedure)

 

426.070     Initiation; notification required; recommendation to court; citation

 

426.072     Custody; care; 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

 

426.130     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     Record of proceedings

 

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 department; 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 and developmental disabilities 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 and developmental disabilities 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

 

PERSONS WITH CHRONIC MENTAL ILLNESS

 

(Generally)

 

426.490     Policy

 

426.495     Definitions for ORS 426.490 to 426.500; rules

 

426.500     Powers and duties of Department of Human Services; rules

 

(Community Housing)

 

426.502     Definitions for ORS 426.502 to 426.508

 

426.504     Authority of department 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) “Department” means the Department of Human Services.

      (b) “Director of the facility” means a superintendent of a state mental hospital, the chief of psychiatric services in a community hospital or the person in charge of treatment and rehabilitation programs at other treatment facilities.

      (c) “Facility” means a state mental hospital, community hospital, residential facility, detoxification center, day treatment facility or such other facility as the department determines suitable, any of which may provide diagnosis and evaluation, medical care, detoxification, social services or rehabilitation for committed mentally ill persons.

      (d) “Mentally ill person” means a person who, because of a mental disorder, is one or more of the following:

      (A) Dangerous to self or others.

      (B) Unable to provide for basic personal needs and is not receiving such care as is necessary for health or safety.

      (C) A person:

      (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 department 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.

      (e) “Nonhospital facility” means any facility, other than a hospital, that is approved by the department to provide adequate security, psychiatric, nursing and other services to persons under ORS 426.232 or 426.233.

      (f) “Prehearing period of detention” means a period of time calculated from the initiation of custody during which a person may be detained under ORS 426.228, 426.231, 426.232 or 426.233.

      (2) Whenever a community mental health and developmental disabilities program director, director of the facility, superintendent of a state hospital or administrator of a facility is referred to, the reference includes any designee such person has designated to act on the person’s behalf in the exercise of duties. [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]

 

(Hospitals)

 

      426.010 State hospitals for mentally ill persons. Except as otherwise ordered by the Department of Human Services pursuant to ORS 179.325, the Oregon State Hospital in Salem, Marion 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 department 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]

 

      426.020 Superintendent; chief medical officer. The superintendent of a hospital referred to in ORS 426.010 shall be a person the Department of Human Services 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. If the superintendent is not a physician, the Director of Human Services or the designee of the director shall appoint a physician to serve as chief medical officer who shall be in the unclassified service. [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]

 

      426.030 [Amended by 1955 c.651 §5; 1957 c.43 §1; repealed by 1999 c.983 §7]

 

      426.060 Commitment to Department of Human Services; authority of department to direct placement; transfer authority; delegation. (1) Commitments to the Department of Human Services 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 department 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 department, the department may direct any court-committed person to the facility best able to treat the person. The authority of the department on such matters shall be final.

      (b) At any time, for good cause and in the best interest of the mentally ill person, the department may transfer a committed person from one facility to another. When transferring a person under this paragraph, the department 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 department;

      (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 department 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 department to provide emergency care or treatment as defined by rule of the department.

      (d) Pursuant to its rules, the department may delegate to a community mental health and developmental disabilities program director the responsibility for assignment of mentally ill persons to suitable facilities or transfer between such facilities under conditions which the department 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]

 

(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 and developmental disabilities program director or a designee of the director in the county where the allegedly mentally ill person resides;

      (c) It must state that a person within the county other than the person giving the notice is a mentally ill person and is in need of treatment, care or custody;

      (d) If the commitment proceeding is initiated by two persons under subsection (1)(a) of this section, it may include a request that the court notify the two persons:

      (A) Of the issuance or nonissuance of a warrant under this section; or

      (B) Of the court’s determination under ORS 426.130 (1); and

      (e) If the notice contains a request under paragraph (d) of this subsection, it must also include the addresses of the two persons making the request.

      (3) Upon receipt of a notice under subsections (1) and (2) of this section or when notified by a circuit court that the court received notice under ORS 426.234, the community mental health and developmental disabilities program director, or designee of the director, shall:

      (a) Immediately notify the judge of the court having jurisdiction for that county under ORS 426.060 of the notification described in subsections (1) and (2) of this section.

      (b) Immediately notify the Department of Human Services if commitment is proposed because the person appears to be a mentally ill person, as defined in ORS 426.005 (1)(d)(C). When such notice is received, the department may verify, to the extent known by the department, whether or not the person meets the criteria described in ORS 426.005 (1)(d)(C)(i) and (ii) and so inform the community mental health and developmental disabilities 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 and developmental disabilities program director determines that probable cause does not exist to believe that a person released from detention under ORS 426.234 (2)(c) or (3)(b) is a mentally ill person, the community mental health and developmental disabilities program director shall not submit a recommendation to the court.

      (5) When the court receives notice under subsection (3) of this section:

      (a) If the court, following the investigation, concludes that there is probable cause to believe that the person investigated is a mentally ill person, it shall, through the issuance of a citation as provided in ORS 426.090, cause the person to be brought before it at a time and place as it may direct, for a hearing under ORS 426.095 to determine whether the person is mentally ill. The person shall be given the opportunity to appear voluntarily at the hearing unless the person fails to appear or unless the person is detained pursuant to paragraph (b) of this subsection.

      (b)(A) The judge may cause the allegedly mentally ill person to be taken into custody pending the investigation or hearing by issuing a warrant of detention under this subsection. A judge may only issue a warrant under this subsection if the court finds that there is probable cause to believe that failure to take the person into custody would pose serious harm or danger to the person or to others.

      (B) To cause the custody of a person under this paragraph, the judge must issue a warrant of detention to the community mental health and developmental disabilities program director or designee, the sheriff of the county or designee, directing that person to take the allegedly mentally ill person into custody and produce the person at the time and place stated in the warrant.

      (C) At the time the person is taken into custody, the person shall be informed by the community mental health and developmental disabilities program director, the sheriff or a designee of the following:

      (i) The person’s rights with regard to representation by or appointment of counsel as described in ORS 426.100;

      (ii) The warning under ORS 426.123; and

      (iii) The person’s right, if the community mental health and developmental disabilities 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 and developmental disabilities 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]

 

      426.072 Custody; care; 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 Department of Human Services 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]

 

      426.074 Investigation; procedure; content; report. The following is applicable to an investigation initiated by a community mental health and developmental disabilities program director, or a designee of the director, as part of commitment procedures under ORS 426.070 and 426.228 to 426.235:

      (1) If the allegedly mentally ill person is held in custody before the hearing the investigation shall be completed at least 24 hours before the hearing under ORS 426.095, otherwise the investigation shall comply with the following time schedule:

      (a) If the allegedly mentally ill person can be located, the investigator shall contact the person within three judicial days from the date the community mental health and developmental disabilities program director or a designee receives a notice under ORS 426.070 alleging that the person is mentally ill.

      (b) Within 15 days from the date the community mental health and developmental disabilities program director or a designee receives a notice under ORS 426.070 alleging that a person is mentally ill, one of the following shall occur:

      (A) The investigation shall be completed and submitted to the court.

      (B) An application for extension shall be made to the court under paragraph (c) of this subsection.

      (c) The community mental health and developmental disabilities program director, a designee or the investigator may file for an extension of the time under paragraph (b) of this subsection only if one of the following occurs:

      (A) A treatment option less restrictive than involuntary in-patient commitment is actively being pursued.

      (B) The allegedly mentally ill person cannot be located.

      (d) A court may grant an extension under paragraph (c) of this subsection for a time and upon the terms and conditions the court considers appropriate.

      (2) This subsection establishes a nonexclusive list of provisions applicable to the content of the investigation, as follows:

      (a) The investigation conducted should, where appropriate, include an interview or examination of the allegedly mentally ill person in the home of the person or other place familiar to the person.

      (b) Whether or not the allegedly mentally ill person consents, the investigation should include interviews with any persons that the investigator has probable cause to believe have pertinent information regarding the investigation. If the allegedly mentally ill person objects to the contact with any person, the objection shall be noted in the investigator’s report.

      (c) The investigator shall be allowed access to physicians, nurses or social workers and to medical records compiled during the current involuntary prehearing period of detention to determine probable cause and to develop alternatives to commitment. If commitment is proposed because the person appears to be a mentally ill person as defined in ORS 426.005 (1)(d)(C), the investigator shall be allowed access to medical records necessary to verify the existence of criteria described in ORS 426.005 (1)(d)(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]

 

      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 and developmental disabilities 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 Department of Human Services 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]

 

      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 Department of Human Services 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]

 

      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 Department of Human Services by rule.

      (B) Certified as a mental health examiner qualified to make examinations for involuntary commitment proceedings by the department. The department has authority to 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]

 

      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