2015 ORS § 161.365¹
Procedure for determining issue of fitness to proceed
- • rules
(1) When the court has reason to doubt the defendants fitness to proceed by reason of incapacity as described in ORS 161.360 (Mental disease or defect excluding fitness to proceed), the court may call any witness to its assistance in reaching its decision and shall order that a community mental health program director or the directors designee consult with the defendant to determine whether services and supervision necessary to safely restore the defendants fitness to proceed are available in the community. After the consultation, the program director or the directors designee shall provide to the court a copy of the findings resulting from the consultation. 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 as defined in ORS 161.309 (Notice and report prerequisite to defense) and a report of the examination be prepared; or
(b) Order the defendant to be committed for the purpose of an examination for a period not exceeding 30 days 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.
(2) 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 mental disease or defect, an opinion as to whether the defendant is incapacitated within the description set out in ORS 161.360 (Mental disease or defect excluding fitness to proceed); and
(d) If the defendant is incapacitated within the description set out in ORS 161.360 (Mental disease or defect excluding fitness to proceed), a recommendation of treatment and services necessary to restore capacity.
(3) 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 mental disease or defect was subject to the provisions of ORS 161.295 (Effect of mental disease or defect) or 161.300 (Evidence of disease or defect admissible as to intent) at the time of the criminal act charged.
(4) If the examination by the psychiatrist or psychologist cannot be conducted by reason of the unwillingness of the defendant to participate in the examination, the report shall so state and shall include, if possible, an opinion as to whether the unwillingness of the defendant was the result of mental disease or defect affecting capacity to proceed.
(5) The report shall be filed in triplicate with the clerk of the court, who shall cause copies to be delivered to the district attorney and to counsel for defendant.
(6)(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, 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 psychiatrist or psychologist in private practice; and
(B) All costs including transportation of the defendant if the examination is conducted by a psychiatrist or psychologist 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 defendants expense. When an examination is ordered at the request of the prosecution, the county shall pay for the expense of the examination.
(7) 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]