§ 15.13 Civil Commitment

• Library: Criminal Law in Oregon (OSBar) (2022 Ed.)

§ 15.13 CIVIL COMMITMENT

In Oregon, lawyers who accept court appointments in criminal cases may also represent persons who are the subject of involuntary-commitment proceedings. See ORS 426.005-426.395. The discussion in § 15.13-1 to § 15.13-7(d) serves as an overview of the substantive law and procedure relating to civil-commitment proceedings. "'Fact matching' in these kinds of cases is often of little utility because every involuntary mental commitment case must be decided on its individual facts under the applicable standards." State v. King, 177 Or App 373, 378, 34 P3d 739 (2001).

§ 15.13-1 Overview

The involuntary commitment of a person for mental-health treatment is a civil, not a criminal, process. Nonetheless, persons subjected to involuntary commitment are deprived of their constitutional right to liberty. O'Connor v. Donaldson, 422 US 563, 575, 95 S Ct 2486, 45 L Ed 2d 396 (1975). Accordingly, they are entitled to significant due-process protections. State v. Matthews, 46 Or App 757, 759, 613 P2d 88, rev den, 289 Or 588 (1980), cert den, 450 US 1040 (1981).

Constitutional protections do not include the right to a jury trial at a commitment hearing. State v. Mills, 36 Or App 727, 729-30, 585 P2d 1143 (1978), rev den, 285 Or 195 (1979) (the denial of a request for a jury trial did not violate the mentally ill person's due-process rights under the state and federal constitutions). Similarly, the Fifth Amendment privilege against self-incrimination does not apply to a civil-commitment proceeding. Matthews, 46 Or App at 762-63 (due process does not require that a person be afforded the right to remain silent in an involuntary civil-commitment proceeding if such testimony might be used as a basis for commitment). Furthermore, Miranda warnings are not required in a civil-commitment proceeding. State v. O'Neill, 274 Or 59, 72, 545 P2d 97 (1976) (a person is not entitled to Miranda warnings before being examined by a psychiatrist or another person pursuant to an involuntary-commitment hearing).

Protections afforded to a person who is subject to a commitment proceeding in Oregon include the right to notice, by the court, of (1) the reason for being brought before the court, (2) the nature and possible results of the proceedings, (3) the right to subpoena witnesses, and (4) the rights regarding the assistance of legal counsel. ORS 426.100(1). See State v. Collman, 9 Or App 476, 483-84, 497 P2d 1233 (1972) ("Fourteenth Amendment due process entitles an allegedly mentally ill person to representation by counsel; that [the person], or one acting on [the person's] behalf, must be fully advised of [the] right to counsel; and that this right be accorded unless intelligently and understandingly waived"); State v. Pieretti, 110 Or App 379, 382-83, 823 P2d 426 (1991), rev den, 313 Or 354 (1992) (the trial court did not abuse its discretion in not allowing the person to represent himself based on his conduct at an involuntary-commitment hearing; and a due-process violation was not established when the investigator misled the person as to how soon the hearing would occur and failed to take sufficient time to complete the investigation, when no assertion was made that the investigation report was inaccurate or incomplete).

The statutory requirements for commitment are subject to overlap at times, for example, "[d]angerous to self" and "[inability] to provide for basic personal needs." ORS 426.005(1)(f). Commitments can be held appropriate, even if made on the wrong basis. See State v. Turel, 182 Or App 235, 48 P3d 175 (2002). Therefore, restricting case-law review to a particular statutory element is not always helpful. As such, understanding the factual basis for commitment, and that similar fact patterns could result in commitment on a different basis, is essential. This overview seeks to identify some of these issues. A lawyer contemplating representing a person in a civil-commitment matter should study the statutes and applicable case law in detail; have or acquire a basic understanding of mental illness, and its corresponding treatment; and be familiar with the Oregon State Bar's Specific Standards for Representation in Civil Commitment Proceedings. See www.osbar.org/surveys_research/perfor-mancestandard/index.html.

§ 15.13-2 General Procedure

Oregon law allows an individual to be involuntarily committed. The individual who is the subject of a civil-commitment proceeding is often referred to as the "Person Alleged to be Mentally Ill" (PAMI). See ORS 426.005(1)(f). Court records and opinions previously referred to this party as the "Allegedly Mentally Ill Person" (AMIP).

An involuntary commitment may be initiated in a variety of ways. It may be initiated by (1) two persons, (2) the local health officer, or (3) "[a]ny magistrate or judge of a court of a federally recognized Indian tribe located in this state." ORS 426.070(1). In addition, a "licensed independent practitioner may hold a person for transportation to a treatment facility for up to 12 hours in a health care facility" if

(1) "[t]he licensed independent practitioner believes the person is dangerous to self or to any other person and is in need of emergency care or treatment for mental illness";

(2) "[t]he licensed independent practitioner is not related to the person by blood or marriage"; and

(3) "[a] licensed independent practitioner with admitting privileges at the receiving facility consents to the transporting."

ORS 426.231(1).

Licensed independent practitioner means

(1) "[a] physician, as defined in ORS 677.010";

(2) "[a] nurse practitioner licensed under ORS 678.375 and authorized to write prescriptions under ORS 678.390; or

(3) "[a] naturopathic physician licensed under ORS chapter 685." ORS 426.005(1)(d).

Emergency holds by licensed independent practitioners commonly result from a peace officer's contact with the PAMI, causing the PAMI to be taken to a hospital. See ORS 426.228. Alternatively, such holds may arise while the PAMI is already hospitalized. See ORS 426.232.

Despite variations in the process, a commitment proceeding will generally include the following events:

(1) Written notice is filed with the court. See ORS 426.070; ORS 426.234.

(2) The PAMI is notified. See ORS 426.070(5).

(3) Before a commitment hearing, an investigator interviews the PAMI "to determine whether there is probable cause to believe that the person is in fact a person with mental illness." ORS 426.070(3)(c).

(4) After the investigation, if the court concludes that "there is probable cause to believe that the person investigated is a person with mental illness, it shall, through the issuance of a citation . . . , cause the person to be brought before it at a time and place as it may direct, for a hearing." ORS 426.070(5)(a). But, if the court "finds that there is probable cause to believe that failure to take the person into custody pending the investigation or hearing would pose serious harm or danger to the person or to others," and the PAMI is not in custody, the court may issue "a warrant of detention" directing the sheriff or a mental-health director "to take the [PAMI] into custody and produce the person at the time and place stated in the warrant." ORS 426.070(5)(b)(A).

(5) A written report, generally including a recommendation, is prepared and submitted to the court. ORS 426.074; see also ORS 426.070(4). The investigation and report should include an interview or examination of the PAMI, interviews of any persons that the investigator has "probable cause" to believe has pertinent information about the investigation, and alternatives to commitment. ORS 426.074(2). The investigator is also allowed access to "licensed independent practitioners, nurses or social workers," as well as to "medical records compiled during the current involuntary prehearing period of detention." ORS 426.074(2)(c). If commitment is proposed because the person appears to be mentally ill, the investigator is allowed access to medical records to verify whether the necessary criteria for a finding of mental illness exist. ORS 426.074(2)(c).

(6) After reviewing the investigator's report, the court may dismiss the case based on a lack of evidence, or require a hearing to determine whether the person has a mental illness and should be civilly committed. ORS 426.070(5).

(7) A hearing (if one is required) must be held within five judicial days after the PAMI is taken into custody, unless the court postpones the hearing. ORS 426.095(2). At the hearing, the court must determine whether the PAMI "has a mental illness and is in need of treatment." ORS 426.130(1). A finding of mental illness must be based on "clear and convincing evidence." ORS 426.130(1)(a). Unless such a finding is made, the court must discharge the person. ORS 426.130(1)(b).

(8) If the court determines that the person has a mental illness, the court

[s]hall 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.

ORS 426.130(1)(a)(D).

(9) If the court determines that the person has a mental illness, several options are available under the statute:

(a) The court will 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." ORS 426.130(1)(a)(A). See State v. Doe, ...