Chapter 426

 

      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)

 

      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)

 

      426.005

 

NOTES OF DECISIONS

 

      Evidence that 19-year-old was disoriented, uncooperative and unable to understand directives of officers during his incarceration in county jail, and that such disorientation may have been result of having taken LSD, was insufficient to support finding that he was “mentally ill person” within meaning of this section, absent evidence that he would be dangerous to himself or others in the future. State v. Lucas, 31 Or App 947, 571 P2d 1274 (1977)

 

      Evidence that petitioner thought he was part of “interplanetary system that placed him above the law,” and that he was “angry, curt, aggressive and hostile in his verbal behavior,” was insufficient to show that defendant was dangerous to himself or others within meaning of this section. State v. Nelson, 35 Or App 57, 580 P2d 590 (1978)

 

      Evidence with respect to petitioner’s prior commitments was relevant for purpose of determining nature and extent of petitioner’s mental disorder. State v. Watkins, 35 Or App 87, 581 P2d 90 (1978)

 

      Where individual testified he heard voices talking to him from television and radio, admitted thinking about killing self and others, but denied he ever would, conclusion of one of two professional examiners that individual “could” become dangerous to others fell short of reasonable certainty of predicted dangerous behavior required for commitment under this section. State v. Fry, 36 Or App 297, 585 P2d 354 (1978)

 

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

 

      Evidence, inter alia, that woman was sleeping in bus shelter, had her possessions in plastic buckets, was unkempt and dirty, was evasive and disorganized in answering question, did not meet burden of proving her mentally ill beyond reasonable doubt. State v. Phyll, 36 Or App 627, 585 P2d 48 (1978)

 

      Where doctors’ reports informed court only that individual suffered from “depression” and was “irresponsible” and described mental state as “confused-fears” and there was no showing on what basis doctors reached conclusion patient was danger to self and others and could not care for self, evidence was insufficient for beyond reasonable doubt finding under this section. State v. Arnold, 36 Or App 869, 586 P2d 93 (1978)

 

      Where evidence showed individual engaged in specific violent conduct which endangered others only 48 hours prior to hearing and examiners not only explained in their written reports that he was dangerous to others because of his mental illness but specifically identified the mental illness, evidence was sufficient for finding individual was mentally ill beyond reasonable doubt under this section. State v. Troupe, 36 Or App 875, 586 P2d 95 (1978), Sup Ct review denied

 

      Where evidence indicated that at time of commitment hearing, appellant had place to stay and though she had been given notice to vacate current housing, she was cognizant of necessity to move in near future and of factors involved in moving; it was not sufficient to show she was “mentally ill person” under (2)(b) of this section. State v. Arnston, 47 Or App 477, 614 P2d 1214 (1980)

 

      Where primary evidence to support conclusion concerning petitioner’s dangerousness were his statements about “getting things fixed” in Washington, D.C. and he claimed no desire or ability to carry out his concerns, this was not sufficient to find him mentally ill person under this section. State v. Jepson, 48 Or App 411, 617 P2d 284 (1980)

 

      General deterioration in health not accompanied by specific dangerous condition does not establish that person is “dangerous to self.” State v. LeHuquet, 54 Or App 895, 636 P2d 467 (1981)

 

      Though appellant was described as being manic-depressive, subject to spending sprees, overly generous and trusting, and refused to take mood controlling medication, this was not sufficient to prove that he was mentally ill within the meaning of this section. State v. Fletcher, 60 Or App 623, 654 P2d 1121 (1982)

 

      Alcoholism, combined with other criteria, can be mental health disorder within meaning of this section. State v. Smith, 71 Or App 205, 692 P2d 120 (1984)

 

      Where trial court found medical examiner’s evidence “skimpy” and based determination of plaintiff’s mental state on plaintiff’s demeanor in court but did not state what that demeanor was, there was not clear and convincing evidence that plaintiff was mentally ill. State v. Waites, 71 Or App 366, 692 P2d 654 (1984)

 

      Where appellant had lived alone for 19 years, her former husband assisted her with groceries and errands, she had adequate food, clothing and shelter, fact that she suffered from sleepless nights and experiences frequent fluctuations in weight did not support conclusion that she was unable to care for her basic needs. State v. Nance, 85 Or App 143, 735 P2d 1271 (1987)

 

      Where appellant led street life and claimed to be mentally unbalanced in order to get into hospital, evidence did not show that he was suffering from mental disorder which justified mental commitment. State v. Billingsley, 85 Or App 387, 736 P2d 611 (1987)

 

      Prank phone call and kicking incident in back of police car were insufficient to meet requirement for clear and convincing evidence that defendant is dangerous. State v. Woolridge, 101 Or App 390, 790 P2d 1192 (1990), as modified by 102 Or App 559, 794 P2d 1258 (1990)

 

      Person is subject to basic needs commitment under this section if clear and convincing evidence demonstrates that, due to mental disorder, there is likelihood person probably would not survive in near future because person is unable to provide for basic personal needs and is not receiving care necessary for health or safety. State v. Bunting, 112 Or App 143, 826 P2d 1060 (1992)

 

      Defendant was unable to meet her basic personal needs for food and shelter due to mental illness 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)

 

      Although medical examiners concluded that defendant could not provide for basic needs and defendant lived homeless lifestyle, evidence was not “highly probable” that defendant could not provide basic needs because testimony indicated that defendant had thought about future care. State v. Stanley, 117 Or App 327, 843 P2d 1018 (1992)

 

      Prior violent behavior is relevant only if evidence shows prior behavior forms foundation for predicting future dangerousness. State v. Tardanico, 119 Or App 166, 849 P2d 564 (1993)

 

      Finding that person was mentally ill, without specific finding that person was dangerous to self or others or was unable to provide for personal needs, was insufficient to support order placing person on conditional release. State v. Gill, 120 Or App 543, 853 P2d 304 (1993)

 

      Establishing that person is “dangerous to self” does not require threat of immediate harm. State v. Jacobson, 142 Or App 371, 922 P2d 670 (1996)

 

      Alleged mentally ill person need not have been twice committed for treatment in order to have been twice “placed” in hospital or approved inpatient facility. State v. Hilliard, 195 Or App 538, 98 P3d 767 (2004), Sup Ct review denied

 

      Where person made vague but threatening statements, including talking about having weapons, wanting to burn down person’s workplace and trying to run over person’s estranged husband with person’s car, but where statements were unaccompanied by any overt act to carry them out or any overt violent act, statements do not establish that person is highly likely to engage in actual future violence and is danger to others. State v. G.A.K., 281 Or App 815, 384 P3d 555 (2016)

 

LAW REVIEW CITATIONS: 11 WLJ 327, 328 (1975)

 

      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)

 

      426.070

 

NOTES OF DECISIONS

 

      This section does not apply when officer takes person into custody on mental health hold. State v. Lee, 118 Or App 93, 846 P2d 424 (1993)

 

LAW REVIEW CITATIONS: 11 WLJ 319 (1975)

 

      426.095

 

NOTES OF DECISIONS

 

      Where involuntary commitment hearing was held within statutorily prescribed five days under this section, there was no abuse of discretion. State v. Harpole, 101 Or App 405, 790 P2d 1196 (1990)

 

      When choosing location or locations of mental commitment hearing, court has discretion to weigh convenience of location to mentally ill person against convenience of location to court. State v. G.N., 230 Or App 249, 215 P3d 902 (2009)

 

      426.100

 

NOTES OF DECISIONS

 

      The due process clause of the U.S. Const., Am. XIV, entitles an allegedly mentally ill person to representation by counsel, and provides that he, or one acting in his behalf, must be fully advised of his right to counsel, and this right be accorded unless intelligently and understandingly waived. State v. Collman, 9 Or App 476, 497 P2d 1233 (1972)

 

      Where attorney in mental commitment hearing failed to make motion for continuance, continuance would not be considered for first time on appeal. State v. Mills, 36 Or App 727, 585 P2d 1143 (1978), Sup Ct review denied

 

      Granting of continuances upon showing of good cause is discretionary rather than mandatory. State v. Adair, 42 Or App 675, 601 P2d 830 (1979)

 

      Where conduct of defendant during hearing on involuntary commitment order demonstrated defendant was not capable of defending himself adequately, trial court did not abuse its discretion in refusing to allow him to represent himself. State v. Pieretti, 110 Or App 379, 823 P2d 426 (1991), Sup Ct review denied

 

      Stipulation by counsel that person was dangerous and should be committed did not relieve court of responsibility for explaining nature of hearing and rights to person. State v. Allison, 129 Or App 47, 877 P2d 660 (1994)

 

      Where allegedly mentally ill person waives advice of rights, waiver is ineffective unless court conducts examination on record to verify that waiver is knowing and voluntary. State v. May, 131 Or App 570, 888 P2d 14 (1994); State v. Burge, 167 Or App 312, 1 P3d 490 (2000)

 

      Advice regarding “nature of proceedings” encompasses description only of basic character of proceedings, not legal and evidentiary standards to be employed. State v. Buffum, 166 Or App 552, 999 P2d 541 (2000)

 

      Where court has previously determined ability of person to afford counsel, court may appropriately limit advice regarding person’s right to appointed or retained counsel. State v. Cach, 172 Or App 745, 19 P3d 992 (2001), Sup Ct review denied

 

      Court is not required to inform person of right to self-representation. State v. Cach, 172 Or App 745, 19 P3d 992 (2001), Sup Ct review denied

 

      Right to suitable counsel does not provide basis for collateral challenge to commitment order based on inadequate assistance of counsel. State v. Linder, 177 Or App 715, 33 P3d 1023 (2001)

 

      Trial court at civil commitment proceeding must either advise mentally ill person directly of mentally ill person’s rights or conduct examination on record to determine whether right to be advised has been knowingly and voluntarily waived. State v. Ritzman, 192 Or App 296, 84 P3d 1129 (2004)

 

      Appellate court may review trial court’s failure to advise mentally ill person of specified proceedings and rights for plain error. State v. S.J.F., 247 Or App 321, 269 P3d 83 (2011)

 

LAW REVIEW CITATIONS: 11 WLJ 321 (1975)

 

      426.125

 

NOTES OF DECISIONS

 

      Finding that person was mentally ill, without specific finding that person was dangerous to self or others or was unable to provide for personal needs, was insufficient to support order placing person on conditional release. State v. Gill, 120 Or App 543, 853 P2d 304 (1993)

 

      426.130

 

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)

 

      426.140

 

NOTES OF DECISIONS

 

      Patients in hospital may be housed together regardless of whether they came to hospital as result of civil or criminal commitment. Ray v. Bachik, 101 Or App 507, 791 P2d 150 (1990), Sup Ct review denied

 

      426.160

 

NOTES OF DECISIONS

 

      Unless effectively waived, the court must have all proceedings (including testimony) reported or utilize other methods which will preserve a record of the proceedings so as to assure an adequate and effective appeal. State v. Collman, 9 Or App 476, 497 P2d 1233 (1972)

 

      Where the court in a second hearing relies upon evidence presented in a prior hearing, there must also be an adequate record of the prior hearing. State v. Anderson, 21 Or App 263, 534 P2d 1159 (1975)

 

      Where record is partially or wholly unavailable, lack of record does not entitle appellant to relief absent prima facieshowing of error, unfairness at trial or miscarriage of justice. State v. Cutri, 184 Or App 625, 56 P3d 955 (2002)

 

      426.175 to 426.220

 

LAW REVIEW CITATIONS: 53 OLR 245-270 (1974)

 

      426.220

 

NOTES OF DECISIONS

 

      Voluntary commitment is authorized only pursuant to rules promulgated by Mental Health Division, and thus where minor was committed by parent and no rules had yet been promulgated by division, issuance of writ of habeas corpus for release was proper remedy. Pyle v. Brooks, 31 Or App 479, 570 P2d 990 (1977)

 

ATTY. GEN. OPINIONS: Need for parental consent for commitment, (1972) Vol 35, p 1095

 

      426.273

 

      See also annotations under ORS 426.290 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 426.290)

 

      This section is constitutional. Dietrich v. Brooks, 27 Or App 821, 558 P2d 357 (1976), Sup Ct review denied

 

      426.275

 

NOTES OF DECISIONS

 

      State is not required to prove that person remains mentally ill at time of revocation hearing. State v. Bryant, 127 Or App 68, 871 P2d 129 (1994), Sup Ct review denied

 

      Court is not required to provide same explanation of rights required to be given in initial commitment proceeding. State v. Vonahlefeld, 140 Or App 248, 914 P2d 1104 (1996)

 

      426.280

 

      See annotations under ORS 426.335.

 

      426.290

 

NOTE: Repealed January 1, 1986; ORS 426.273, 426.275 and 426.292 enacted in lieu

 

      See annotations under ORS 426.273.

 

      426.295

 

ATTY. GEN. OPINIONS: Mentally diseased persons denied right to vote as including only persons declared incompetent under this section, (1972) Vol 35, p 1220; release of patient’s confidential case records, (1974) Vol 36, p 1080

 

      426.300

 

ATTY. GEN. OPINIONS: Release of patient’s confidential case records, (1974) Vol 36, p 1080

 

LAW REVIEW CITATIONS: 53 OLR 246 (1974)

 

      426.301 to 426.307

 

NOTES OF DECISIONS

 

      Where certificate of need for further treatment is filed prior to expiration of 180 days, passage of 180th day does not deprive court of jurisdiction. State v. G., 26 Or App 197, 552 P2d 574 (1976), Sup Ct review denied

 

      Further commitment certification process did not deprive patient of federal due process rights or rights under state constitution. State v. Johansen, 125 Or App 365, 866 P2d 470 (1993), Sup Ct review denied

 

      426.301

 

LAW REVIEW CITATIONS: 53 OLR 245-270 (1974)

 

      426.335

(formerly 426.280)

 

NOTES OF DECISIONS

 

      Immunity from criminal or civil liability for conducting investigation applies to suits by interview subject or by third parties. Deming v. Mt. Hood Community Mental Health Center, 128 Or App 164, 875 P2d 484 (1994), Sup Ct review denied

 

      Immunity from criminal or civil liability for conducting investigation includes immunity both for act of investigating and for consequences of investigation. Deming v. Mt. Hood Community Mental Health Center, 128 Or App 164, 875 P2d 484 (1994), Sup Ct review denied

 

      This section is ineffective to give private physicians acting in concert with state qualified immunity against claims under 42 U.S.C.A. 1983. Jensen v. Lane County, 222 F3d 570 (9th Cir. 2000)

 

ATTY. GEN. OPINIONS: Right of the Superintendent of the Oregon State Hospital to grant trial visits to patients committed under [former] ORS 161.340, (1972) Vol 36, p 266

 

      426.385

 

NOTES OF DECISIONS

 

      Although State of Oregon created protected liberty interest for all persons committed to custody of Mental Health and Developmental Disability Services Division in sending sealed mail, where practice of restricting outgoing mail of patient of Oregon State Hospital was significant part of treatment plan, restriction did not abridge his rights under U.S. Constitution. Martyr v. Mazur-Hart, 789 F Supp 1081 (1992)

 

      Patient’s outgoing mail cannot be censored by Mental Health and Developmental Disability Services Division as part of providing treatment. Martyr v. State of Oregon, 130 Or App 528, 883 P2d 237 (1994)

 

ATTY. GEN. OPINIONS: Right of mentally diseased person to vote, (1972) Vol 35, p 1220; mandatory compensation of patients for services performed, (1976) Vol 38, p 494

 

LAW REVIEW CITATIONS: 53 OLR 245-270 (1974)

 

      426.460

 

      See annotations under ORS 430.399.

 

      426.470

 

      See annotations under ORS 430.401.

 

      426.510 to 426.680

 

LAW REVIEW CITATIONS: 8 WLJ 341-395 (1972)

 

      426.675

 

NOTES OF DECISIONS

 

      Where record of trial of defendant convicted of attempted sodomy and kidnapping clearly indicated that neither judge nor defense counsel were aware of provisions of this section, matter was remanded for reconsideration of sentence. State v. Morse, 35 Or App 7, 580 P2d 1038 (1978)

 

      This section does not conflict with ORS 161.725, concerning dangerous offenders, because ORS 161.725 provides for modified sentence of incarceration for dangerous offender as means of preventing individual from inflicting future harm, while this section authorizes treatment program for sexually dangerous person during incarceration, and thus court did not err in sentencing defendant both as dangerous offender and sexually dangerous person upon his conviction of burglary and attempted rape. State v. Sanders, 35 Or App 503, 582 P2d 22 (1978), Sup Ct review denied

 

      The procedure set forth in this section for determining whether defendant is sexually dangerous offender contemplates examination of defendant and mere review of defendant’s presentence report and police reports does not satisfy statute. State v. Cunningham, 82 Or App 292, 728 P2d 75 (1986)

 

      When judge has made finding under this section that there is probable cause to believe defendant is sexually dangerous and orders examination pursuant to statute, sentencing judge may not ignore order. State v. Cunningham, 82 Or App 292, 728 P2d 75 (1986)