Persons With Mental Illness

ORS 426.130
Court determination of mental illness

  • discharge
  • release for voluntary treatment
  • conditional release
  • commitment
  • assisted outpatient treatment
  • prohibition relating to firearms
  • period of commitment


(1)

After hearing all of the evidence, and reviewing the findings of the examiners, the court shall determine whether the person has a mental illness and is in need of treatment. If, in the opinion of the court, the person:

(a)

Is a person with mental illness based upon clear and convincing evidence, the court:

(A)

Shall order the release of the person and dismiss the case if:

(i)

The 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 (Qualifications and requirements for conditional release). 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 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 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 (Outpatient commitment).

(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 (Initiation), 426.180 (Emergency commitment of individuals in Indian country), 426.228 (Custody), 426.232 (Emergency admission) or 426.233 (Authority of community mental health program director and of other individuals) and:

(A)

Dismiss the case; or

(B)

Order the person to participate in assisted outpatient treatment in accordance with ORS 426.133 (Assisted outpatient treatment). 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, a commitment or assisted outpatient treatment under this section shall establish a period of commitment or treatment 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 (Initiation) (1)(a) and if the notice included a request under ORS 426.070 (Initiation) (2)(d)(B), the court shall notify the two persons of the court’s determination under subsection (1) of this section.

(4)

If the court finds that the person is a person with mental illness and either orders commitment under subsection (1)(a)(B) or (C) of this section or enters an order under subsection (1)(a)(D) of this section, the court shall notify the person that the person is prohibited from purchasing or possessing a firearm under state and federal law unless the person obtains relief from the prohibition from the Psychiatric Security Review Board under ORS 166.273 (Relief from firearm prohibitions related to mental health) or under federal law. [Amended by 1973 c.838 §12; 1975 c.690 §8; 1979 c.408 §3; 1987 c.903 §17; 1989 c.839 §36; 1993 c.735 §9; 1995 c.498 §2; 2009 c.595 §393; 2013 c.360 §30; 2013 c.737 §6; 2017 c.233 §2]

Notes of Decisions

Evidence was sufficient to find defendant mentally ill beyond reasonable doubt where he suffered from manic depressive psychosis, behaved in bizarre manner, and made threats of violence to others accompanied by violent acts. State v. Allmendinger, 36 Or App 381, 584 P2d 773 (1978)

Where one examining physician stated that petitioner was "probably" suffering from mental illness and another physician stated that petitioner suffered from a "psychosis," without any further supporting evidence or explanation, this was not sufficient evidence upon which to base involuntary commitment order under this section. State v. Jepson, 48 Or App 411, 617 P2d 284 (1980)

A Court is not forbidden to commit a person simply because he has submitted himself voluntarily to treatment. State v. Kerrigan, 67 Or App 399, 678 P2d 271 (1984)

That person is mentally ill must be proven by clear and convincing evidence; that is, truth of acts asserted must be "highly probable." State v. Waites, 71 Or App 366, 692 P2d 654 (1984)

Where defendant testified he would stay at YMCA or motel, had been eating at local hospital cafeteria, had some money and was looking for work and apartment and state did not provide any evidence to contradict such testimony, there was lack of clear and convincing evidence to show defendant dangerous to self or others or unable to provide for his basic needs. State v. Garibbo, 77 Or App 321, 713 P2d 671 (1986)

Where defendant made threats of violence to members of his family, treated his sister violently and roughly and two examining mental health professionals disagreed as to whether defendant was a danger to himself or others, defendant's conduct and statements provides clear and convincing evidence that he is dangerous to others. State v. Furnish, 86 Or App 194, 738 P2d 607 (1987)

Where "mental health examiner" examined appellant as part of commitment after attorney told examiner appellant did not wish to speak with him, and at trial appellant moved to suppress all evidence obtained during interview, and trial court denied motion on de novo review excluding examiner's report and observations, remaining evidence clearly and convincingly demonstrates that statutory criteria for commitment was met. State of Oregon v. Haller, 95 Or App 752, 770 P2d 615 (1989)

Where only evidence of danger to himself was single automobile accident, order committing appellant to Mental Health Division was reversed. State v. Siebold, 100 Or App 365, 786 P2d 219 (1990)

This section in prohibiting mentally ill person from possessing firearm does not violate right to bear arms under Oregon Constitution, Art. I, sec. 27. State v. Owenby, 111 Or App 270, 826 P2d 51 (1992)

This section requires trial court to review findings of examining persons in determining whether person is mentally ill, but does not bind court to findings or require court to explain why it rejects those findings. State v. Evjen, 111 Or App 368, 826 P2d 92 (1992)

Court need not release person who provides evidence of willingness to participate voluntarily in treatment if court does not find that person "will probably do so." State v. Doe, 116 Or App 18, 840 P2d 727 (1992)

Mental Illness Was Demonstrated By Clear and Convincing Evidence Where

Defendant was seriously malnourished when not under doctor's care; she had no credible plan to acquire adequate nutrition in future, minimized danger faced from malnutrition and had history of failing to follow through with plans for care; she had no family or friends who would assist her. State v. Johnson, 117 Or App 237, 843 P2d 985 (1992)

Where court had ample evidence that delusional person would commit violent acts in future, specific acts of past violence were not required to establish that person was dangerous. State v. Bodell, 120 Or App 548, 853 P2d 841 (1993)

Proper standard of proof in dispositional phase of mental commitment proceeding is preponderance of evidence. State v. Brenhuber, 146 Or App 719, 934 P2d 550 (1997)

Where person criminally liable for past acts has mental disorder that includes impaired impulse control, person may fall within narrow group of persons subject to both criminal system and civil commitment system. State v. Gibson, 187 Or App 207, 66 P3d 560 (2003), Sup Ct review denied

Court authority to prohibit person from purchasing or possessing firearms does not allow court to order seizure and disposal of firearms. State v. Gifford, 200 Or App 40, 113 P3d 445 (2005)

Clear and convincing evidence person is dangerous to self means evidence demonstrating high probability of current, actual threat to life arising out of person's mental disorder. State v. C.R., 216 Or App 395, 173 P3d 836 (2007); State v. N.A.P., 216 Or App 432, 173 P3d 1251 (2007)

During dispositional phase of mental commitment proceeding, mentally ill person bears burden of proving that he or she is willing to participate in voluntary treatment and will probably do so. State v. T.M., 229 Or App 325, 211 P3d 359 (2009)

Atty. Gen. Opinions

Mental Health Division recognition of commitment order issued by Indian tribal court, (1970) Vol 40, p 31

Law Review Citations

26 WLR 566 (1990)

§§ 426.070 to 426.170

Notes of Decisions

Where defendant in involuntary commitment proceeding asserted he was denied due process because investigator misled him as to how soon hearing would take place and did not take long enough to complete investigation but defendant did not assert that investigation report was inaccurate or incomplete, due process violation was not established. State v. Pieretti, 110 Or App 379, 823 P2d 426 (1991), Sup Ct review denied

Atty. Gen. Opinions

Mental Health Division recognition of commitment order issued by Indian tribal court, (1979) Vol 40, p 31

Law Review Citations

53 OLR 245-270 (1974)

§§ 426.005 to 426.395

Notes of Decisions

The doctor-patient privilege applies under these sections. State v. O'Neill, 274 Or 59, 545 P2d 97 (1976)

Prior to commitment there must be evidence proving beyond a reasonable doubt that the individual is mentally ill as defined. State v. O'Neill, 274 Or 59, 545 P2d 97 (1976)

The Oregon commitment statutes are not unconstitutional on the grounds of vagueness or as an invasion of privacy as protected by the Ninth and Fourteenth Amendments to the United States Constitution. State v. O'Neill, 274 Or 59, 545 P2d 97 (1976)

Oregon Constitution did not require jury in mental commitment hearings. State v. Mills, 36 Or App 727, 585 P2d 1143 (1978), Sup Ct review denied

Alleged mentally ill person does not have right to remain silent in civil commitment proceeding. State v. Matthews, 46 Or App 757, 613 P2d 88 (1980), Sup Ct review denied

Law Review Citations

9 WLJ 63-85 (1973)

Chapter 426

Notes of Decisions

The entire statutory scheme of involuntary commitment provides adequate procedural safeguards which satisfies the requirements of due process and equal protection. Dietrich v. Brooks, 27 Or App 821, 558 P2d 357 (1976), Sup Ct review denied

Atty. Gen. Opinions

County of residence paying mental commitment costs, (1979) Vol 40, p 147; civil commitment to Mental Health Division of person against whom criminal charges are pending, (1980) Vol 41, p 91

Law Review Citations

16 WLR 448 (1979)


Source

Last accessed
Jun. 26, 2021