1. (1) Criteria for placement into custody.

   1. (a) Persons who are a danger to self or others, whether prior to being placed under civil commitment or during a period of civil commitment, and who are in need of mental health treatment shall be placed in custody at a facility approved by the Division.
   2. (b) A person who has been placed on conditional release, outpatient commitment, or trial visit, in addition to the criteria in Section 1(a) of this rule number, may also be taken into custody if the person is unable to provide for basic personal needs that are necessary to avoid serious physical harm in the near future and is not receiving such care as is necessary to avoid such harm.

2. (2) Warrant of detention.

   1. (a) If the court issues a warrant of detention to the director for the prehearing detention of a person alleged to have a mental illness, the director shall make arrangements to take the person into custody and arrange to transport the person to an OHA-approved community hospital or nonhospital facility that is licensed under ORS Chapter 441, other than an institution listed in ORS 426.010.

      1. (A) The director is required to inform the person of their rights with regard to representation by or appointment of counsel as described in ORS 426.100 and be given the warning described under in ORS 426.070(5)(b)(B) and OAR 309-033-0540.
      2. (B) The director shall make arrangements as applicable to transport the person to the civil commitment hearing, as directed in the warrant of detention or a subsequent court order.

      3. (C) Unless otherwise directed by a court order or as provided for in these rules, the director shall place the person in an OHA-approved community hospital or nonhospital facility until the date indicated in the warrant of detention or any subsequent court order.  The director shall seek to place the person in the least restrictive placement possible that will meet the person’s immediate health and safety needs.

         1. (i) If the person represents an immediate and serious danger to the staff or physical facilities of an OHA-approved community hospital or nonhospital facility, the director, after providing written notice to OHA of the alternative placement, may confine the person in a non-OHA approved correctional setting that can meet the health and safety needs of the person pursuant to ORS 426.140(1).  The notice must include contact information for the CMHP director authorizing the transfer to a correctional setting, the physical address and contact information for the placement site, and a description of the person’s behavior(s) that represent an immediate and serious danger to facility staff or property. The person may be placed in this alternative placement until the date indicated in the warrant of detention or subsequent court order, or until the person is transferred to an OHA-approved community hospital or nonhospital facility.
         2. (ii) If no OHA-approved community hospital or nonhospital facility will admit the person, the director may place the person in a non-OHA approved setting that can meet the health and safety needs of the person pursuant to ORS 426.140(2).  If the person is not placed in a community hospital, the director shall ensure that a care attendant is in direct charge of the person at all times while they are onsite at the alternative placement, that the placement is suitable for the comfortable, safe, and humane confinement of the person, and that the Authority is immediately notified in writing of the alternative placement. The person may be placed in this alternative placement until the date indicated in the warrant of detention or a subsequent court order, or until the person is transferred to an OHA-approved community hospital or nonhospital facility.
   2. (b) If the court has issued the warrant of detention to the sheriff of the county to provide for the custody and transportation of the person alleged to have a mental illness, the director is not responsible for taking the person into custody, providing transportation to the treatment facility, or transportation to the civil commitment hearing.  The director shall coordinate with the sheriff on the person’s placement and the ongoing civil commitment process.
   3. (c) If the court has issued the warrant of detention to a hospital or nonhospital facility to provide for the custody of the person alleged to have a mental illness, the director is not responsible for taking the person into custody.  The director shall coordinate with the hospital or nonhospital facility the transportation of the person to the indicated treatment setting, unless otherwise authorized under ORS 426.150(2), including notifying a peace officer or another authorized individual, pursuant to ORS 426.233(1)(b), to take custody of and transport the person to the hospital or nonhospital facility.
   4. (d) In cases where the state hospital initiated the civil commitment proceeding and the person is already at the state hospital, the person shall remain at the state hospital upon receipt of the warrant of detention, unless otherwise indicated by the presiding judge.

3. (3) Hospital hold. Only a LIP with admitting privileges or on staff at a hospital approved by the Authority and who has completed a face-to-face examination of the person may retain the person in custody in the hospital as provided by ORS 426.232. When implementing a hospital hold, the LIP shall document the following information on the Notice of Mental Illness (NMI), retaining a copy of the NMI in the clinical record:

   1. (a) Examples of indicators that support the LIP’s belief that the person is a danger to self or others due to symptoms and behaviors related to a mental disorder;
   2. (b) Examples of thoughts, plans, actions, access to means, history of dangerousness, and other indicators that support the LIP’s belief that the person is imminently dangerous.

4. (4) Peace officer custody requested by director. A director may direct a peace officer to take into custody a person who the director has probable cause to believe is dangerous to self or any other person and who the director has probable cause to believe is in need of immediate care, custody or treatment for mental illness:

   1. (a) A county governing body may authorize the director, or a person named and recommended by the director, to direct a peace officer or approved secure transport provider to take persons alleged to have a mental illness into custody. Such an authorization shall be made formally and in writing by the county governing body of the director. The director shall keep a copy of each authorization in each person’s personnel file;

   2. (b) Prior to directing a peace officer or approved secure transport provider to take a person into custody, a director shall have face-to-face contact with the person and document on forms approved by the Division, the evidence for probable cause to believe that the person is:

      1. (A) Dangerous to self or others; and
      2. (B) In need of immediate care, custody or treatment for a mental illness.

5. (5) When a person in custody can be released. A person who is detained, in custody, or on a hold shall be released as described:

   1. (a) LIP’s release of a person on peace officer custody. When a person is brought to a hospital by a peace officer or approved secure transport provider pursuant to ORS 426.228 the treating LIP shall release the person if, upon initial examination prior to admission, the LIP makes the determination that the person is not dangerous to self or others. It is not necessary to notify the court of the release;
   2. (b) LIP’s release of a person on transport custody. At any time during the 12-hour detention period, the treating LIP shall release a person detained pursuant to ORS 426.231 if the LIP makes the determination that the person is not dangerous to self or others. It is not necessary to notify the court of the release;
   3. (c) LIP’s release of a person on a hospital hold. The treating LIP shall release a person retained or admitted to a hospital pursuant to ORS 426.232 whenever the LIP makes the determination that the person is not dangerous to self or others. The treating LIP shall immediately notify the director and the circuit court where the NMI was filed. See OAR 309-033-0240; or
   4. (d) Director’s release of a person on a nonhospital hold. The director shall release a person detained in a nonhospital facility, approved under OAR 309-033-0530, pursuant to ORS 426.233, whenever the director, in consultation with a LIP, makes the determination that the person is not dangerous to self or others. The director shall immediately notify the circuit court.
6. (6) When a person in custody cannot be released. If a person is taken into custody by order of a warrant of detention pursuant to ORS 426.070(5)(b)(A) and ORS 426.070(5)(b)(C), the person may only be released by the court. However, a person may be discharged from a hospital or nonhospital facility when the person is transferred to another approved facility.

7. (7) Commencement of the five judicial days. No person who is detained, in custody, or on a hold pursuant to ORS 426.070, ORS 426.228, ORS 426.232, or ORS 426.233 shall be involuntarily held for more than five judicial days without a hearing before a judge unless otherwise determined pursuant to ORS 426.237 or ORS 426.307.

   1. (a) The first day of the prehearing period of detention is determined to be the judicial day immediately following the day:

      1. (A) The person was placed in custody by the director or a peace officer pursuant to ORS 426.228 or ORS 426.233, if the person was not initially held pursuant to ORS 426.231; or
      2. (B) A Notice of Mental Illness (NMI) was completed and submitted to a court pursuant to ORS 426.232, if the person was not detained or placed in custody prior to the NMI.
   2. (b) The time limit is counted by the 24-hour day, regardless of the precise time a custody or NMI is completed. It is not counted by hour, minute, or second.

Statutory/Other Authority

ORS 413.042, 426.070, 426.231, 426.232, 426.233 & 426.234

Statutes/Other Implemented

ORS 426.005 - 426.395

History

BHS 7-2024, amend filed 04/30/2024, effective 05/28/2024
BHS 9-2023, amend filed 04/04/2023, effective 04/07/2023
BHS 23-2021, amend filed 12/13/2021, effective 12/13/2021
BHS 16-2021, temporary amend filed 07/30/2021, effective 07/30/2021 through 01/25/2022
MHD 9-2000, f. & cert. ef. 7-21-00
MHD 2-2000(Temp), f. & cert. ef. 1-25-00 thru 7-22-00
MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0060