A person is mentally ill if, because of a mental disorder, ORS 426.005(1)(d), the person is one or more of the following:
- Dangerous to self or others – 426.005(1)(d)(A);
- Unable to provide for basic needs and is not receiving such care as is necessary for health and safety – 426.005(1)(d)(B); or
- Is chronically mentally ill, has been involuntarily committed to a state hospital twice in the past three years, is exhibiting symptoms similar to those that led to prior commitments and unless treated will continue to deteriorate so the person will become dangerous to self or others or unable to care for basic needs – 426.005(1)(d)(C), 426.495.
Miscellaneous Patient Rights
- The civil commitment court does not recognize doctor/patient confidentiality. 426.072(3). The nurse/patient privilege (ORE 504-2), the clinical social worker patient privilege (ORE 504-4), and the husband/wife privilege still apply.
- The Alleged Mentally Ill Person or AMIP has a right to a lawyer. 426.100(3)
- The AMIP and attorney have the right to request a postponement of the hearing for good cause for no more than five working days. If the AMIP is detained prior to the hearing, the court can order the person detained for the period of postponement if the postponement is requested by the AMIP or legal counsel for the AMIP. 426.095(2)(c).
- An AMIP cannot be held in custody on a pre-commitment hold longer than five days. If that occurs, they are free to leave the hospital.
- The rules of evidence apply. Exceptions: 426.095(4)(a)(c). Although medical records are allowed, they are rarely offered. 426.095(4)()(c)(d).
- Investigation reports are admissible if the investigator is present (in the room even if not a witness), but object to any hearsay portions and should be excluded.
- The judge should read the AMIP his/her rights. 426.100. See May, 131 Or App 570 and others.
- The Assistant District Attorney (ADA) and defense attorney may make opening statements. Note: Those are frequently either extremely brief or waived.
- The ADA will call witnesses to testify. Those witnesses may be cross-examined by defense attorney, mental health examiners and the judge.
- The AMIP is entitled to call witnesses to testify. 426.095(3), 426.100(1)(d). Again, the ADA, examiners and judge may ask questions of those witnesses.
- The mental health examiners will write their opinion as to the AMIP’s mental condition. This opinion must be under oath. 426.120(1)(c).
- ADA and defense attorneys may make closing statements. This is frequently a time to argue for a conditional release.
- The judge will make the final determination as to whether the AMIP is in fact mentally ill as defined by statute. The standard is clear and convincing under both the statute and case law. 426.130(1)(b).
There are four possible dispositions:
- Discharge. If the court does not determine the AMIP to in fact be mentally ill. 426.130(1)(a).
- Discharge. If the person meets the commitment criteria, but appears willing to cooperate with voluntary treatment and will probably do so. 426.130(1)(b)(A).
- Conditional Release. To the custody of a friend or relative. 426.130(1)(b)(B), 426.125.
- Commitment of the person to Mental Health Division for treatment for no more than 180 days. 426.130(1)(b)(C) and 426.130(2). The Mental Health Division may place the person in a hospital or other facility or may place the person on outpatient commitment.
Note: A commitment can last no longer than 180 days. A person can be released by the hospital at any time before the 180 days elapses if treatment is no longer needed. The hospital cannot keep a person for longer than 180 days unless the person agrees to stay or is recommitted in another process. 426.292.
- Failure to Comply with Conditional Release/Outpatient Commitment
The judge will be notified of the allegation and a hearing will be set. The person has a right to an attorney and other rights the same as the original commitment hearing. The person may be held in custody before the hearing, but if so, the hearing must be within five judicial days. 426,275.If the judge finds the person has failed to comply with conditions, the judge can continue the placement with the same or different conditions or return the person to the Mental Health Division for involuntary care and treatment.
- Trial Visits
Once a person is committed and goes to a hospital or other facility, the Mental Health Division can agree with the mental health program director to release a person on a trial visit. The person is released to the community “under any conditions the division shall establish.” 426.273. Often the conditions include requirements that the person take certain medication or attend specific therapy sessions.If the person on a trial visit breaks the conditions of the trial visit, she/he cannot be sent back to the hospital or other facility unless the judge orders this after a hearing. The person has the same rights as the person who is charged with violating the conditions of an outpatient commitment or conditional release.Note: The statute seems to say that the judge has the option of continuing the trial visit on the same conditions, modifying the conditions or returning the person to the hospital. 426.275(3).
If the person is still in a hospital or facility at the end of 180 days, the state may try to recommit the person. Before the 180-day commitment runs out, the hospital will give the person papers asking if she or he agrees to stay. If the person wants to leave the hospital, he or she must protest the recommitment by either signing a protest form or telling the hospital staff. This must be done within 14 days. If the person does not protest, he or she may be recommitted automatically for up to 180 days. 426.301.If the person protests the recommitment, another hearing must be held.
A person has a right to appeal the judge’s decision. The appeal must be in writing and filed within 30 days. If a person is without funds to hire an attorney, one will be appointed. 426.135.
- Habeas Corpus
A person can challenge being confined by filing a Writ of Habeas Corpus. That is a way of asking the judge to see if the confinement is legal. If it is not, the judge can order the hospital to release the person. 426.380.Note: The statute says that the Writ will go to the county where the client is detained. This may be a different county than where the commitment hearing was held.
Other Legal Rights Affected by Commitment
Some specific rights are limited by civil commitments:
- Firearms – a person who has been committed can be forbidden from owning, buying or possessing firearms. 426.130(1)(d), 166.250.
- Future commitments – if a person is committed twice within the past three years, she or he can be committed more easily in the future. 426.005(1)(d)(C), 426.495.
- Driving – commitment can affect a person’s ability to get or keep a driver’s license. 807.090, 807.700, 809.410(16).