ORS 426.095¹
Commitment hearing
  • 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 person alleged to have a mental illness.

(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 individuals in Indian country), 426.228 (Custody), 426.232 (Emergency admission), 426.233 (Authority of community mental health program director and of other individuals) or 426.702 (Discharge from commitment of extremely dangerous person with mental illness) 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 person alleged to have a mental illness or the person alleged to be an extremely dangerous person with mental illness.

(B) The legal counsel or guardian of the person.

(C) The individual representing the state’s interest.

(3) The person alleged to have a mental illness and the individual representing the state’s interest shall have the right to cross-examine all the following:

(a) Witnesses.

(b) The individual conducting the investigation.

(c) The examining physicians or other licensed independent practitioners 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. Regulated 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 individuals are produced as witnesses at the hearing available for cross-examination.

(c) The testimony of any treating licensed independent practitioners, nurses or social workers for the prehearing period of detention. Any treating licensed independent practitioner, 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 person alleged to have a mental illness.

(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. Regulated 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 person alleged to have a mental illness or counsel for the person. [1973 c.838 §9; 1975 c.690 §5; 1987 c.903 §13; 1993 c.484 §16; 1997 c.649 §2; 2009 c.595 §389; 2013 c.715 §§4,15; 2015 c.461 §6]

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)

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)

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)

1 Legislative Counsel Committee, CHAPTER 426—Persons With Mental Illness; Dangerous Persons; Commitment; Housing, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors426.­html (2019) (last ac­cessed May 16, 2020).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2019, Chapter 426, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano426.­html (2019) (last ac­cessed May 16, 2020).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent. Currency Information