Procedure for determining issue of fitness to proceed
(1)Intentionally left blank —Ed.
(a)When the court has reason to doubt the defendant’s fitness to proceed by reason of incapacity as described in ORS 161.360 (Qualifying mental disorder affecting fitness to proceed), the court may call any witness to assist it in reaching its decision and, except as provided in paragraph (b) of this subsection, shall order that a community mental health program director, or the director’s designee, consult with the defendant and with any local entity that would be responsible for providing community restoration services to the defendant if the defendant were to be released in the community, to determine whether appropriate community restoration services are present and available in the community. After the consultation, the program director or the director’s designee shall provide to the court a copy of the findings resulting from the consultation.
(b)If the defendant is charged with one or more of the following offenses the court is not required to, but may in its discretion, order the consultation described in paragraph (a) of this subsection:
(B)Murder in any degree;
(C)Attempted aggravated murder;
(D)Attempted murder in any degree;
(E)Manslaughter in any degree;
(F)Aggravated vehicular homicide;
(G)Arson in the first degree when classified as crime category 10 of the sentencing guidelines grid of the Oregon Criminal Justice Commission;
(H)Assault in the first degree;
(I)Assault in the second degree;
(J)Kidnapping in the first degree;
(K)Kidnapping in the second degree;
(L)Rape in the first degree;
(M)Sodomy in the first degree;
(N)Unlawful sexual penetration in the first degree;
(O)Robbery in the first degree; or
(P)Robbery in the second degree.
(c)If the court determines the assistance of a psychiatrist or psychologist would be helpful, the court may:
(A)Order that a psychiatric or psychological examination of the defendant be conducted by a certified evaluator and a report of the examination be prepared; or
(B)Order the defendant to be committed for the purpose of an examination to a state mental hospital or other facility designated by the Oregon Health Authority if the defendant is at least 18 years of age, or to a secure intensive community inpatient facility designated by the authority if the defendant is under 18 years of age. The state mental hospital or other facility may retain custody of a defendant committed under this paragraph for the duration necessary to complete the examination of the defendant, not to exceed 30 days. The examination may include a period of observation.
(d)The court shall provide a copy of any order entered under this subsection to the community mental health program director or designee and to the state mental hospital or other facility by the end of the next judicial day.
(2)Intentionally left blank —Ed.
(a)A defendant committed under subsection (1)(c)(B) of this section shall be transported to the state mental hospital or other facility for the examination.
(b)At the conclusion of the examination, the superintendent of the state mental hospital or the superintendent’s designee or the director of the facility may:
(A)Return the defendant to the facility from which the defendant was transported; or
(B)Inform the court and the parties that the defendant requires a hospital level of care due to the acuity of symptoms of the defendant’s qualifying mental disorder and request that the defendant remain at the state mental hospital or other facility pending a hearing or order under ORS 161.370 (Determination of fitness to proceed).
(3)The report of an examination described in this section must include, but is not necessarily limited to, the following:
(a)A description of the nature of the examination;
(b)A statement of the mental condition of the defendant;
(c)If the defendant suffers from a qualifying mental disorder, an opinion as to whether the defendant is incapacitated within the description set out in ORS 161.360 (Qualifying mental disorder affecting fitness to proceed); and
(d)If the defendant is incapacitated within the description set out in ORS 161.360 (Qualifying mental disorder affecting fitness to proceed), a recommendation of treatment and services necessary to allow the defendant to gain or regain capacity, including whether a hospital level of care is required due to the acuity of symptoms of the defendant’s qualifying mental disorder.
(4)Except when the defendant and the court both request to the contrary, the report may not contain any findings or conclusions as to whether the defendant as a result of a qualifying mental disorder was subject to the provisions of ORS 161.295 (Effect of qualifying mental disorder) or 161.300 (Evidence of qualifying mental disorder admissible as to intent) at the time of the criminal act charged.
(5)If the examination by the certified evaluator cannot be conducted by reason of the unwillingness of the defendant to participate in the examination, the report must so state and must include, if possible, an opinion as to whether the unwillingness of the defendant was the result of a qualifying mental disorder affecting fitness to proceed.
(6)The report resulting from the examination of a defendant under this section may be filed electronically and must be filed with the clerk of the court, who shall cause copies to be delivered to the district attorney and to counsel for defendant.
(7)Intentionally left blank —Ed.
(a)When upon motion of the court or a financially eligible defendant, the court has ordered a psychiatric or psychological examination of the defendant, a county or justice court shall order the county to pay, a municipal court shall order the city to pay, and a circuit court shall order the public defense services executive director to pay from funds available for the purpose:
(A)A reasonable fee if the examination of the defendant is conducted by a certified evaluator in private practice; and
(B)All costs including transportation of the defendant if the examination is conducted by a certified evaluator in the employ of the Oregon Health Authority or a community mental health program established under ORS 430.610 (Legislative policy) to 430.670 (Contracts to provide services).
(b)When an examination is ordered at the request or with the acquiescence of a defendant who is determined not to be financially eligible, the examination shall be performed at the defendant’s expense. When an examination is ordered at the request of the prosecution, the county shall pay for the expense of the examination.
(8)The Oregon Health Authority shall establish by rule standards for the consultation described in subsection (1) of this section. [1971 c.743 §51; 1975 c.380 §4; 1981 s.s. c.3 §131; 1983 c.800 §11; 1987 c.803 §18; 1993 c.238 §2; 2001 c.962 §90; 2005 c.685 §5; 2009 c.595 §106; 2011 c.724 §7; 2015 c.130 §1; 2017 c.252 §25; 2017 c.634 §15; 2019 c.311 §4; 2019 c.318 §1; 2019 c.538 §1a; 2021 c.395 §6]
Section 161.365 — Procedure for determining issue of fitness to proceed; consultation; examination; report; rules,