ORS 426.074: Investigation; procedure; content; report; declaration for mental health treatment.

The following is applicable to an investigation initiated by a community mental health program director, or a designee of the director, as part of commitment procedures under ORS 426.070 and 426.228 to 426.235: (1) If the person alleged to have a mental illness and to be in need of treatment is held in custody before the hearing the investigation shall be completed at least 24 hours before the hearing under ORS 426.095, otherwise the investigation shall comply with the following time schedule: (a) If the person can be located, the investigator shall contact the person within three judicial days from the date the community mental health program director or a designee receives a notice under ORS 426.070 alleging that the person has a mental illness and is in need of treatment. (b) Within 15 days from the date the community mental health program director or a designee receives a notice under ORS 426.070, one of the following shall occur: (A) The investigation shall be completed and submitted to the court. (B) An application for extension shall be made to the court under paragraph (c) of this subsection. (c) The community mental health program director, a designee or the investigator may file for an extension of the time under paragraph (b) of this subsection only if one of the following occurs: (A) A treatment option less restrictive than involuntary inpatient commitment is actively being pursued. (B) The person alleged to have a mental illness and to be in need of treatment cannot be located. (d) A court may grant an extension under paragraph (c) of this subsection for a time and upon the terms and conditions the court considers appropriate. (2) This subsection establishes a nonexclusive list of provisions applicable to the content of the investigation, as follows: (a) The investigation conducted should, where appropriate, include an interview or examination of the person alleged to have a mental illness and to be in need of treatment in the home of the person or other place familiar to the person. (b) Whether or not the person consents, the investigation should include interviews with any individuals that the investigator has probable cause to believe have pertinent information regarding the investigation. If the person objects to the contact with any individual, the objection shall be noted in the investigator’s report. (c) The investigator shall be allowed access to licensed independent practitioners, nurses or social workers and to medical records compiled during the current involuntary prehearing period of detention to determine probable cause and to develop alternatives to commitment. If commitment is proposed because the person appears to be in need of treatment because of a chronic mental disorder as described in ORS 426.131 (5), the investigator shall be allowed access to medical records necessary to verify the existence of criteria described in ORS 426.131 (5) and 426.132 (4). The investigator shall include pertinent parts of the medical record in the investigation report. Records and communications described in this paragraph and related communications are not privileged under ORS 40.230, 40.235, 40.240 or 40.250. (3) A copy of the investigation report shall be provided as soon as possible, but in no event later than 24 hours prior to the hearing, to the person and to the person’s counsel. Copies shall likewise be provided to counsel assisting the court, to the examiners and to the court for use in questioning witnesses. (4) If an investigator has reasonable cause to believe that a person subject to investigation under this section has a declaration for mental health treatment as described in ORS 127.700 to 127.737, the investigator shall: (a) Immediately provide the person subject to investigation and the person’s legal counsel, if any, with information about the process under ORS 127.711 for determinations of capacity and related timelines. (b) If the declaration appoints an attorney-in-fact, as defined in ORS 127.700, and the investigator is able to locate the attorney-in-fact: (A) Immediately notify the attorney-in-fact that the person subject to investigation under this section has an active investigation; (B) Immediately notify the attorney-in-fact that the investigator has reasonable cause to believe the person subject to investigation has a declaration for mental health treatment; (C) Immediately provide the attorney-in-fact with a notice of the person’s legal right to counsel and that legal counsel will be appointed by the court as provided in ORS 426.100; and (D) Immediately provide the attorney-in-fact with a copy of the information provided under paragraph (a) of this subsection. (c)(A) Immediately notify the court that the investigator has reasonable cause to believe that the person who is the subject of the investigation has executed a declaration for mental health treatment and provide the court with all information then available to the investigator regarding the declaration, including information regarding the factors relevant to a determination of incapacity as described in ORS 127.711; and (B) Serve a copy of the notification and information provided to the court on: (i) Attorneys representing the state, as described in ORS 426.100; (ii) The person subject to investigation and the person’s legal counsel, if any; and (iii) The person’s attorney-in-fact, if any, described in paragraph (b) of this subsection. (5) When, after providing the court with notice under subsection (4) of this section, the investigator receives a judgment described in ORS 127.711: (a) If the court does not determine that the person subject to investigation is incapable for purposes of ORS 127.700 to 127.737, the investigation shall continue as provided in subsections (1) to (3) of this section. (b) If the court determines that the person is incapable for purposes of ORS 127.700 to 127.737: (A) The investigator shall, after consultation with the licensed independent practitioner who is treating the person, notify the court regarding whether the investigator and the licensed independent practitioner agree that the treatment that is authorized under the declaration for mental health treatment is sufficient and available. (B) If the investigator and the treating licensed independent practitioner agree that the treatment that is authorized under the declaration for mental health treatment is sufficient and available, and the court agrees, the court shall release the person from the warrant of detention, if applicable, dismiss the case and provide written findings in the judgment of dismissal supporting the reasons for dismissal. (C) If the investigator and the treating licensed independent practitioner agree that the treatment that is authorized by the declaration for mental health treatment is insufficient or unavailable, or if the investigator and the treating licensed independent practitioner do not agree, the investigation shall continue as provided in subsections (1) to (3) of this section. (6) A finding of incapacity under ORS 127.711 may not be used as evidence that a person subject to investigation has a mental illness and is in need of treatment, as described in ORS 426.131 (1). However, evidence supporting a determination of incapacity under ORS 127.711 or evidence of a declaration of mental health treatment may be considered by the court as the court deems relevant for any determinations made under ORS 426.005 to 426.390. [1987 c.903 §10; 1989 c.993 §5; 1993 c.484 §14; 1997 c.649 §1; 2009 c.595 §387; 2009 c.828 §27; 2013 c.360 §20; 2015 c.461 §4; 2025 c.559 §9]