77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session

HA to HB 2594

LC 1001/HB 2594-2

                       HOUSE AMENDMENTS TO
                         HOUSE BILL 2594

                    By COMMITTEE ON JUDICIARY

                            April 26

  On page 1 of the printed bill, line 6, after '426.223, ' insert
'426.225,'.
  Delete lines 15 through 31.
  On page 2, delete lines 1 through 33 and insert:
  '  { +  SECTION 1. + } ORS 426.005 is amended to read:
  ' 426.005. (1) As used in ORS 426.005 to 426.390, unless the
context requires otherwise:
  '  { - (a) 'Authority' means the Oregon Health Authority. - }
  '  { - (b) - }  { +  (a) + } 'Community mental health program
director' means the director of an entity that provides the
services described in ORS 430.630 (3) to (5).
  '  { - (c) - }  { +  (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.
  '  { - (d) - }  { +  (c) + } 'Facility' means a state
 { - mental - }  hospital, community hospital, residential
facility, detoxification center, day treatment facility or such
other facility as the  { + Oregon Health + } Authority determines
suitable  { - , any of which may provide - }  { +  that
provides + } diagnosis and evaluation, medical care,
detoxification, social services or rehabilitation   { - for
committed mentally ill persons - }   { + to persons committed to
the authority under ORS 426.130 + }.
  '  { - (e) 'Mentally ill person' means a person who, because of
a mental disorder, is one or more of the following: - }
  '  { - (A) Dangerous to self or others. - }
  '  { - (B) Unable to provide for basic personal needs and is
not receiving such care as is necessary for health or safety. - }

  '  { - (C) A person: - }
  '  { - (i) With a chronic mental illness, as defined in ORS
426.495; - }
  '  { - (ii) Who, within the previous three years, has twice
been placed in a hospital or approved inpatient facility by the
authority or the Department of Human Services under ORS
426.060; - }
  '  { - (iii) Who is exhibiting symptoms or behavior
substantially similar to those that preceded and led to one or
more of the hospitalizations or inpatient placements referred to
in sub-subparagraph (ii) of this subparagraph; and - }
  '  { - (iv) Who, unless treated, will continue, to a reasonable
medical probability, to physically or mentally deteriorate so
that the person will become a person described under either
subparagraph (A) or (B) of this paragraph or both. - }
  '  { - (f) - }  { +  (d) + } 'Nonhospital facility' means any
facility, other than a hospital, that is approved by the
authority to provide adequate security, psychiatric, nursing and
other services to persons under ORS 426.232 or 426.233.
  '  { +  (e) 'Person with mental illness' means a person who,
because of a mental disorder:
  ' (A) Is dangerous to self or to any other person;
  ' (B) Is unable to provide for basic personal needs and is not
receiving such care as is necessary for health or safety; or
  ' (C)(i) Is a person with a chronic mental illness, as defined
in ORS 426.495;
  ' (ii) Within the previous three years, has twice been placed
in a hospital or approved inpatient facility by the authority or
the Department of Human Services under ORS 426.060;
  ' (iii) 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) 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. + }
  '  { - (g) - }  { +  (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 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.

                               { +
' ASSISTED OUTPATIENT TREATMENT + }

  '  { +  SECTION 1a. + }  { + Section 1b of this 2013 Act is
added to and made a part of ORS 426.005 to 426.390. + }
  '  { +  SECTION 1b. + }  { + (1) As used in ORS 426.005 to
426.390, ' assisted outpatient treatment' may not be construed to
be a commitment under ORS 426.130 and does not include taking a
person into custody or the forced medication of a person.
  ' (2) A court may issue an order requiring a person to
participate in assisted outpatient treatment if the court finds
that the person:
  ' (a)(A) Is 18 years of age or older;
  ' (B) Has a mental disorder;
  ' (C) Will not obtain treatment in the community voluntarily;
and
  ' (D) Is unable to make an informed decision to seek or to
comply with voluntary treatment; and
  ' (b) As a result of being a person described in paragraph (a)
of this subsection:
  ' (A) Is incapable of surviving safely in the community without
treatment; and
  ' (B) Requires treatment to prevent a deterioration in the
person's condition that will predictably result in the person
becoming a person with mental illness.
  ' (3) In determining whether to issue the order under
subsection (2) of this section, the court shall consider, but is
not limited to considering, the following factors:
  ' (a) The person's ability to access finances in order to get
food or medicine.
  ' (b) The person's ability to obtain treatment for the person's
medical condition.
  ' (c) The person's ability to access necessary resources in the
community without assistance.
  ' (d) The degree to which there are risks to the person's
safety.
  ' (e) The likelihood that the person will decompensate without
immediate care or treatment.
  ' (f) The person's previous attempts to inflict physical injury
on self or others.
  ' (g) The person's history of mental health treatment in the
community.
  ' (h) The person's patterns of decompensation in the past.
  ' (i) The person's risk of being victimized or harmed by
others.
  ' (j) The person's access to the means to inflict harm on self
or others.
  ' (4) The community mental health program director shall
recommend to the court a treatment plan for a person
participating in assisted outpatient treatment. The court may
adopt the plan as recommended or with modifications.
  ' (5) The court retains jurisdiction over the person until the
earlier of the end of the period of the assisted outpatient
treatment established under ORS 426.130 (2) or until the court
finds that the person no longer meets the criteria in subsection
(2) of this section.
  ' (6) This section does not prevent a court from appointing a
guardian ad litem to act for the person. + }
  '  { +  SECTION 1c. + } ORS 426.070 is amended to read:
  ' 426.070. (1) Any of the following may initiate commitment
procedures under this section by giving the notice described
under subsection (2) of this section:
  ' (a) Two persons;
  ' (b) The county health officer; or
  ' (c) Any magistrate.
  ' (2) For purposes of subsection (1) of this section, the
notice must comply with the following:
  ' (a) It must be in writing under oath;
  ' (b) It must be given to the community mental health program
director or a designee of the director in the county where the
  { - allegedly mentally ill - }  person  { + alleged to have a
mental illness + } resides;
  ' (c) It must state that a person within the county other than
the person giving the notice is a   { - mentally ill - }  person
 { + with mental illness + } and is in need of treatment, care or
custody;
  ' (d) If the commitment proceeding is initiated by two persons
under subsection (1)(a) of this section, it may include a request
that the court notify the two persons:
  ' (A) Of the issuance or nonissuance of a warrant under this
section; or
  ' (B) Of the court's determination under ORS 426.130 (1); and
  ' (e) If the notice contains a request under paragraph (d) of
this subsection, it must also include the addresses of the two
persons making the request.
  ' (3) Upon receipt of a notice under subsections (1) and (2) of
this section or when notified by a circuit court that the court
received notice under ORS 426.234, the community mental health
program director, or designee of the director, shall:
  ' (a) Immediately notify the judge of the court having
jurisdiction for that county under ORS 426.060 of the
notification described in subsections (1) and (2) of this
section.
  ' (b) Immediately notify the Oregon Health Authority if
commitment is proposed because the person appears to be a
  { - mentally ill - }  person { +  with mental illness + }, as
defined in ORS 426.005 (1)(e)(C). When such notice is received,
the authority may verify, to the extent known by the authority,
whether or not the person meets the criteria described in ORS
426.005 (1)(e)(C)(i) and (ii) and so inform the community mental
health program director or designee of the director.
  ' (c) Initiate an investigation under ORS 426.074 to determine
whether there is probable cause to believe that the person is in

fact a   { - mentally ill - }  person { +  with mental
illness + }.
  ' (4) Upon completion, a recommendation based upon the
investigation report under ORS 426.074 shall be promptly
submitted to the court. If the community mental health program
director determines that probable cause does not exist to believe
that a person released from detention under ORS 426.234 (2)(c) or
(3)(b) is a   { - mentally ill - }  person { +  with mental
illness + }, the community mental health program director
 { - shall not submit a recommendation to the court - }  { +  may
recommend assisted outpatient treatment in accordance with
section 1b of this 2013 Act + }.
  ' (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 { +  with mental illness + },
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 - }  { +  a
person with mental illness + }. 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  { + pending the
investigation or hearing + } 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 - }  { +  the court may + } issue a
warrant of detention to the community mental health program
director or designee  { - , - }   { + or + } the sheriff of the
county or designee  { - , - }  directing   { - that person - }
 { +  the director, sheriff or a designee + } to take the
 { - allegedly mentally ill - }  person  { + alleged to have a
mental illness + } into custody and produce the person at the
time and place stated in the warrant.
  '  { - (C) - }  { +  (B) + } At the time the person is taken
into custody, the person shall be informed by the community
mental health program director, the sheriff or a designee of the
following:
  ' (i) The person's rights with regard to representation by or
appointment of counsel as described in ORS 426.100;
  ' (ii) The warning under ORS 426.123; and
  ' (iii) The person's right, if the community mental health
program director, sheriff or designee reasonably suspects that
the person is a foreign national, to communicate with an official
from the consulate of the person's country. A community mental
health program director, sheriff or designee is not civilly or
criminally liable for failure to provide the information required
by this sub-subparagraph. Failure to provide the information
required by this sub-subparagraph does not in itself constitute
grounds for the exclusion of evidence that would otherwise be
admissible in a proceeding.
  '  { - (D) - }  { +  (C) + } 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.
  '  { +  SECTION 1d. + } ORS 426.130 is amended to read:
  ' 426.130. (1) After hearing all of the evidence, and reviewing
the findings of the   { - examining persons - }  { +
examiners + }, the court shall determine whether the person
 { - is mentally ill - }  { +  has a mental illness and is in
need of treatment + }. If, in the opinion of the court, the
person   { - is - } :
  '  { - (a) Not mentally ill, the person shall be discharged
forthwith. - }
  '  { - (b) - }  { +  (a) + }   { - Mentally ill - }  { +  Is a
person with mental illness + } based upon clear and convincing
evidence, the court:
  ' (A) Shall order the release of the   { - individual - }
 { + person + } and dismiss the case if:
  ' (i) The   { - mentally ill - }  person is willing and able to
participate in treatment on a voluntary basis; and
  ' (ii) The court finds that the person will probably do so.
  ' (B) May order conditional release under this subparagraph
subject to the qualifications and requirements under ORS 426.125.
If the court orders conditional release under this subparagraph,
the court shall establish a period of commitment for the
conditional release.
  ' (C) May order commitment of the   { - individual - }  { +
person with mental illness + } to the Oregon Health Authority for
treatment if, in the opinion of the court, subparagraph (A) or
(B) of this paragraph is not in the best interest of the
 { - mentally ill - } person. If the court orders commitment
under this subparagraph:
  ' (i) The court shall establish a period of commitment.
  ' (ii) The authority may place the committed person in
outpatient commitment under ORS 426.127.
  ' (D) Shall order that the person be prohibited from purchasing
or possessing a firearm if, in the opinion of the court, there is
a reasonable likelihood the person would constitute a danger to
self or others or to the community at large as a result of the
person's mental or psychological state as demonstrated by past
behavior or participation in incidents involving unlawful
violence or threats of unlawful violence, or by reason of a
single incident of extreme, violent, unlawful conduct.  When a
court makes an order under this subparagraph, the court shall
cause a copy of the order to be delivered to the sheriff of the
county who will enter the information into the Law Enforcement
Data System.
  '  { +  (b) Is not a person with mental illness, the court
shall release the person from custody if the person has been
detained under ORS 426.070, 426.180, 426.228, 426.232 or 426.233
and:
  ' (A) Dismiss the case; or
  ' (B) Order the person to participate in assisted outpatient
treatment in accordance with section 1b of this 2013 Act. The
court may continue the proceeding for no more than seven days to
allow time for the community mental health program director to
develop the person's assisted outpatient treatment plan. + }
  ' (2) A court that orders a conditional release { + , + }
 { - or - }  a commitment  { + or assisted outpatient
treatment + } under this section shall establish a period of
commitment for the person subject to the order. Any period of
commitment ordered for commitment or conditional release under
this section shall be for a period of time not to exceed 180
days. { +  A period of assisted outpatient treatment shall be for
a period of time not to exceed 12 months. + }
  ' (3) If the commitment proceeding was initiated under ORS
426.070 (1)(a) and if the notice included a request under ORS
426.070 (2)(d)(B), the court shall notify the two persons of the
court's determination under subsection (1) of this section.
  '  { +  SECTION 1e. + } ORS 426.237 is amended to read:
  ' 426.237. (1) During a prehearing period of detention as
provided in ORS 426.070, 426.140, 426.232 or 426.233, the
community mental health program director shall do one of the
following:
  ' (a) Recommend, in an investigation report as provided in ORS
426.074, that the circuit court not proceed further in the matter
if the community mental health program director does not believe
the person is a   { - mentally ill - }  person { +  with mental
illness or that the person is in need of assisted outpatient
treatment + }.
  ' (b) No later than three judicial days after initiation of a
prehearing period of detention as provided in ORS 426.070,
426.140, 426.232 or 426.233, certify the detained person for a
14-day period of intensive treatment if:
  ' (A) The community mental health program director and a
psychiatrist, as defined by rule by the Oregon Health Authority,
have probable cause to believe the person is a   { - mentally
ill - } person { +  with mental illness + };
  ' (B) The community mental health program director in the
county where the person resides verbally approves the
arrangements for payment for the services at the hospital or
nonhospital facility; and
  ' (C) The community mental health program director locates a
hospital or nonhospital facility that:
  ' (i) Is approved by the authority and the community mental
health program director in the county where the person resides;
and
  ' (ii) Can, in the opinion of the community mental health
program director and the psychiatrist, provide intensive care or
treatment for mental illness necessary and sufficient to meet the
emergency psychiatric needs of the person.
  ' (c) Recommend, in an investigation report as provided in ORS
426.074, that the circuit court hold a hearing under ORS 426.070
to 426.130 if the community mental health program director has
probable cause to believe the person is a   { - mentally ill - }
person { +  with mental illness or that the person is in need of
assisted outpatient treatment + }.
  ' (2)(a) If the circuit court adopts the recommendation of the
community mental health program director under subsection (1)(a)
of this section, the circuit court shall enter an order releasing
the person and dismissing the case. Unless the person agrees to
voluntary treatment, if the person is being detained in a:
  ' (A) Nonhospital facility, the community mental health program
director shall make discharge plans and   { - insure - }
 { + ensure + } the discharge of the person.
  ' (B) Hospital, the treating physician shall make discharge
plans and discharge the person.
  ' (b) Upon release of the person, the community mental health
program director shall attempt to notify the person's next of kin
if the person consents to the notification.
  ' (3)(a) If the detained person is certified for treatment
under subsection (1)(b) of this section, the community mental
health program director shall:
  ' (A) Deliver immediately a certificate to the court having
jurisdiction under ORS 426.060; and
  ' (B) Orally inform the person of the certification and deliver
a copy of the certificate to the person.
  ' (b) The certificate required by paragraph (a) of this
subsection shall include:
  ' (A) A written statement under oath by the community mental
health program director and the psychiatrist that they have
probable cause to believe the person is a   { - mentally ill - }
person  { +  with mental illness + } in need of care or treatment
for mental illness;

  ' (B) A treatment plan that describes, in general terms, the
types of treatment and medication to be provided to the person
during the 14-day period of intensive treatment;
  ' (C) A notice of the person's right to an attorney and that an
attorney will be appointed by the court or as otherwise obtained
under ORS 426.100 (3);
  ' (D) A notice that the person has a right to request and be
provided a hearing under ORS 426.070 to 426.130 at any time
during the 14-day period; and
  ' (E) The date and time the copy of the certificate was
delivered to the person.
  ' (c) Immediately upon receipt of a certificate under paragraph
(a) of this subsection, the court shall notify the person's
attorney or appoint an attorney for the person if the person
cannot afford one. Within 24 hours of the time the certificate is
delivered to the court, the person's attorney shall review the
certificate with the person. If the person and the person's
attorney consent to the certification within one judicial day of
the time the certificate is delivered to the circuit court and,
except as provided in subsection (4) of this section, the court
shall postpone the hearing required by ORS 426.070 to 426.130 for
14 days.
  ' (d) When a person is certified for treatment under subsection
(1)(b) of this section and accepts the certification:
  ' (A) Except as otherwise provided in this paragraph, all
methods of treatment, including the prescription and
administration of drugs, shall be the sole responsibility of the
treating physician. However, the person shall not be subject to
electroshock therapy or unduly hazardous treatment and shall
receive usual and customary treatment in accordance with medical
standards in the community.
  ' (B) Except when the person expressly refuses treatment, the
treating physician shall treat the person within the scope of the
treatment plan provided the person under paragraph (b) of this
subsection. The person's refusal of treatment constitutes
sufficient grounds for the community mental health program
director to request a hearing as provided in subsection (4)(a) of
this section.
  ' (C) If the person is in a hospital and the community mental
health program director locates a nonhospital facility, approved
by the authority, that, in the opinion of the community mental
health program director and the treating physician, can provide
care or treatment for mental illness necessary and sufficient to
meet the emergency psychiatric needs of the person, the treating
physician shall discharge the person from the hospital and the
community mental health program director shall remove the person
to the nonhospital facility for the remainder of the 14-day
intensive treatment period. If, however, in the opinion of the
treating physician, the person's condition requires the person to
receive medical care or treatment, the physician shall retain the
person in the hospital.
  ' (D) If the person is in a nonhospital facility, the community
mental health program director shall transfer the person to a
hospital approved by the authority under the following
conditions:
  ' (i) If, in the opinion of a physician, the person's condition
requires the person to receive medical care or treatment in a
hospital; and
  ' (ii) The physician agrees to admit the person to a hospital,
approved by the authority, where the physician has admitting
privileges.
  ' (E) If the person is transferred as provided in subparagraph
(C) or (D) of this paragraph, the community mental health program
director shall notify the circuit court, in the county where the
certificate was filed, of the location of the person. The person
may appeal the transfer as provided by rules of the authority.
  ' (e) If the person is in a hospital, the treating physician
may discharge the person at any time during the 14-day period.
The treating physician shall confer with the community mental
health program director and the person's next of kin, if the
person consents to the consultation, prior to discharging the
person.  Immediately upon discharge of the person, the treating
physician shall notify the court in the county in which the
certificate was filed initially.
  ' (f) If the person is in a nonhospital facility, the community
mental health program director may discharge the person at any
time during the 14-day period. The community mental health
program director shall consult with the treating physician and
the person's next of kin, if the person consents to the
consultation, prior to discharging the person. Immediately upon
discharge of the person, the community mental health program
director shall notify the court in the county in which the
certificate was filed initially.
  ' (g) The person may agree to voluntary treatment at any time
during the 14-day period. When a person agrees to voluntary
treatment under this paragraph, the community mental health
program director immediately shall notify the court in the county
in which the certificate was filed initially.
  ' (h) A person consenting to 14 days of treatment under
subsection (3)(c) of this section shall not be held longer than
14 days from the time of consenting without a hearing as provided
in ORS 426.070 to 426.130.
  ' (i) When the court receives notification under paragraph (e),
(f) or (g) of this subsection, the court shall dismiss the case.
  ' (4) The judge of the circuit court shall immediately commence
proceedings under ORS 426.070 to 426.130 when:
  ' (a) The person consenting to 14 days of treatment or the
community mental health program director requests a hearing. The
hearing shall be held without unreasonable delay. In no case
shall the person be held in a hospital or nonhospital facility
longer than five judicial days after the request for a hearing is
made without a hearing being held under ORS 426.070 to 426.130.
  ' (b) The community mental health program director acts under
subsection (1)(c) of this section. In no case shall the person be
held longer than five judicial days without a hearing under this
subsection.'.
  On page 23, delete lines 10 through 45.
  On page 24, delete lines 1 through 33 and insert:
  '  { +  NOTE: + } Section 16 was deleted by amendment.
Subsequent sections were not renumbered.'.
  On page 31, delete lines 13 through 45.
  On page 32, delete lines 1 and 2 and insert:
  '  { +  NOTE: + } Section 28 was deleted by amendment.
Subsequent sections were not renumbered.'.
  On page 35, after line 15, insert:
  '  { +  SECTION 35a. + } ORS 426.225 is amended to read:
  ' 426.225. (1) If any person who has been committed to the
Oregon Health Authority under ORS 426.127 or 426.130
 { - (1)(b)(B) - }  { +  (1)(a)(B) + } or (C) requests, during
this period of commitment, voluntary admission to a state
hospital, the superintendent shall cause the person to be
examined immediately by a physician. If the physician finds the
person to be in need of immediate care or treatment for mental
illness, the person shall be voluntarily admitted upon request of
the person.
  ' (2) If any person who has been committed to the authority
under ORS 426.127 or 426.130   { - (1)(b)(B) - }  { +
(1)(a)(B) + } or (C) requests, during this period of commitment,
voluntary admission to a facility approved by the authority, the
administrator of the facility shall cause the person to be
examined immediately by a physician. If the physician finds the
person to be in need of immediate care or treatment for mental
illness, and the authority grants approval, the person shall be
voluntarily admitted upon request of the person.'.
  On page 40, delete lines 32 through 45 and delete pages 41 and
42.
  On page 43, delete lines 1 through 10 and insert:
  '  { +  NOTE: + } Section 42 was deleted by amendment.
Subsequent sections were not renumbered.'.
  On page 70, line 36, after the period insert 'Sections 1a and
1b of this 2013 Act and'.
  In line 39, after '426.223,' insert '426.225,'.
  In line 42, after '1' insert ', 1c'.
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