2007 ORS § 426.095¹
- • postponement
- • right to cross-examine
- • admissibility of investigation report
The following is applicable to a commitment hearing held by a court under ORS 426.070 (Initiation):
(1) The hearing may be held in a hospital, the person’s home or in some other place convenient to the court and the allegedly mentally ill person.
(2) The court shall hold the hearing at the time established according to the following:
(a) Except as provided by paragraph (b) or (c) of this subsection, a hearing shall be held five judicial days from the day a court under ORS 426.070 (Initiation) issues a citation provided under ORS 426.090 (Citation).
(b) Except as provided by paragraph (c) of this subsection, if a person is detained by a warrant of detention under ORS 426.070 (Initiation), a hearing shall be held within five judicial days of the commencement of detention.
(c) If requested under this paragraph, the court, for good cause, may postpone the hearing for not more than five judicial days in order to allow preparation for the hearing. The court may make orders for the care and custody of the person during a postponement as it deems necessary. If a person is detained before a hearing under ORS 426.070 (Initiation), 426.180 (Emergency commitment of certain Native Americans), 426.228 (Custody), 426.232 (Physician emergency admission) or 426.233 (Authority of community mental health and developmental disabilities program director and of other persons) and the hearing is postponed under this paragraph, the court, for good cause, may allow the person to be detained during the postponement if the postponement is requested by the person or the legal counsel of the person. Any of the following may request a postponement under this paragraph:
(A) The allegedly mentally ill person.
(B) The legal counsel or guardian of the allegedly mentally ill person.
(C) The person representing the state’s interest.
(3) The allegedly mentally ill person and the person representing the state’s interest shall have the right to cross-examine all the following:
(b) The person conducting the investigation.
(c) The examining physicians or other qualified persons recommended by the Department of Human Services who have examined the person.
(4) The provisions of ORS 40.230 (Rule 504. Psychotherapist-patient privilege), 40.235 (Rule 504-1. Physician-patient privilege), 40.240 (Rule 504-2. Nurse-patient privilege) and 40.250 (Rule 504-4. Clinical social worker-client privilege) shall not apply to and the court may consider as evidence any of the following:
(a) Medical records for the current involuntary prehearing period of detention.
(b) Statements attributed by the maker of the medical records or the investigation report to witnesses concerning their own observations in the absence of objection or if such persons are produced as witnesses at the hearing available for cross-examination.
(c) The testimony of any treating physicians, nurses or social workers for the prehearing period of detention. Any treating physician, nurse or social worker who is subpoenaed as a witness for the proceeding shall testify as an expert witness under the provisions of ORS 40.410 (Rule 702. Testimony by experts), 40.415 (Rule 703. Bases of opinion testimony by experts), 40.420 (Rule 704. Opinion on ultimate issue) and 40.425 (Rule 705. Disclosure of fact or data underlying expert opinion) and is subject to treatment as an expert witness in the payment of witness fees and costs.
(d) The investigation report prepared under ORS 426.074 (Investigation). Subject to the following, the investigation report shall be introduced in evidence:
(A) Introduction of the report under this paragraph does not require the consent of the allegedly mentally ill person.
(B) Upon objection by any party to the action, the court shall exclude any part of the investigation report that may be excluded under the Oregon Evidence Code on grounds other than those set forth in ORS 40.230 (Rule 504. Psychotherapist-patient privilege), 40.235 (Rule 504-1. Physician-patient privilege), 40.240 (Rule 504-2. Nurse-patient privilege) or 40.250 (Rule 504-4. Clinical social worker-client privilege).
(C) Neither the investigation report nor any part thereof shall be introduced into evidence under this paragraph unless the investigator is present during the proceeding to be cross-examined or unless the presence of the investigator is waived by the allegedly mentally ill person or counsel for the allegedly mentally ill person. [1973 c.838 §9; 1975 c.690 §5; 1987 c.903 §13; 1993 c.484 §16; 1997 c.649 §2]