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PSYCHIATRIC SECURITY REVIEW BOARD 

 

DIVISION 50

ADULT PSYCHIATRIC SECURITY REVIEW BOARD HEARING PROCEDURES

859-050-0005

Notice

Written notice shall be given to the following persons or agencies within a reasonable time:

(1) Attorney representing the person.

(2) District attorney.

(3) Community supervisor or case monitor.

(4) Court or department of the county from which the person was committed.

(5) The victim, if the court or Board finds the victim requests notification.

(6) Any other interested person requesting notification.

(7) Forensic unit of Oregon State Hospital.

Stat. Auth.: ORS 161
Stats. Implemented: ORS 161.332 & 161.346
Hist.: PSRB 1-1985, f. 1-3-85, ef. 1-15-85

859-050-0010

Information Contained in Notice

Written notice shall contain the following:

(1) Time, place and location of the hearing.

(2) The issues to be considered, reference to statutes and rules involved, authority and jurisdiction.

(3) Statement of rights of the patient at the hearing, including the following:

(a) Right to appear at all proceedings, except Board deliberations;

(b) Right to cross-examine all witnesses appearing to testify at the hearing;

(c) Right to subpoena witness and documents as provided in ORS 161.395;

(d) Right to legal counsel and, if indigent as defined by the indigency standard set forth by the State Court Administrator's office, to have counsel provided without cost;

(e) Right to examine all information, documents and reports under consideration.

Stat. Auth.: ORS 161.387
Stats. Implemented: ORS 161.346
Hist.: PSRB 1-1985, f. 1-3-85, ef. 1-15-85; PSRB 1-1988, f. & cert. ef. 4-1-88; PSRB 1-1995, f. & cert. ef. 1-11-95

859-050-0015

Time of Hearings

Hearings shall be held within the following times:

(1) Initial hearing under ORS 161.341(7)(a). After a person has been placed under the Board's jurisdiction and committed to a state hospital designated by the Mental Health and Developmental Disability Services Division -- 90 days.

(2) Revocation hearing, ORS 161.336(5). After return to the state hospital as a result of an Order of Revocation for violation of the conditional release -- 20 days.

(3) Patient request for conditional release or discharge, ORS 161.341(4)(5)(6). A patient is eligible to request a hearing six months after last hearing. Hearing to be held within 60 days after filing request.

(4) Hospital request, ORS 161.341(2), or outpatient supervisor request, ORS 161.336(7)(b), for conditional release, modification of conditional release or discharge. Request may be made at any time. The hearing is to be held within 60 days of receipt of request.

(5) Outpatient request for modification of conditional release or discharge, ORS 161.336(7)(a). Patients on conditional release are eligible to request a hearing six months after last hearing -- priority will be given to the requests of patients in the hospital.

(6) Two-year hearing, ORS 161.341(7)(b). A hearing is mandatory for persons committed to a state hospital when no other hearing has been held within two years.

(7) Five-year hearing, ORS 161.351(3).Any person who is under the jurisdiction of the Board and who has spent five years on conditional release shall be brought before the Board for a hearing within 30 days of the expiration of the five year period.

Stat. Auth.: ORS 161.387
Stats. Implemented: ORS 161.336, 161.341 & 161.351
Hist.: PSRB 1-1985, f. 1-3-85, ef. 1-15-85; PSRB 2-1988, f. & cert. ef. 11-16-88; PSRB 1-1989, f. & cert. ef. 10-20-89; PSRB 1-1995, f. & cert. ef. 1-11-95

859-050-0020

Chairperson Conducting Hearing

During hearings of the Board, the chairperson or acting chairperson shall preside. The chairperson shall designate the order of presentation and questioning. The chairperson shall also determine the scope of questioning and may set time limits and cut off irrelevant questions and irrelevant or unresponsive answers.

Stat. Auth.: ORS 161
Stats. Implemented: ORS 161.385
Hist.: PSRB 1-1985, f. 1-3-85, ef. 1-15-85

859-050-0025

Patient's Right to Review Record; Exceptions

Patients shall receive written notice of the hearing and directly, or through their attorney, a statement of their rights in accordance with ORS 161.346. All exhibits to be considered by the Board shall be disclosed to the patient's attorney or the patient, if proceeding pro se, as soon as they are available:

(1) Exhibits not available prior to the hearing shall be made available to the patient's attorney or the patient, if not represented, at the hearing.

(2) All material relevant and pertinent to the patient and issues before the Board shall be made a part of the record.

(3) Any material not made part of the record shall be separated and a statement to that effect shall be placed in the record.

Stat. Auth.: ORS 161
Stats. Implemented: ORS 161.346
Hist.: PSRB 1-1985, f. 1-3-85, ef. 1-15-85

859-050-0030

Evidence Considered; Admissibility

The Board shall consider all evidence available to it which is material, relevant and reliable. All evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs shall be admissible, including, but not limited to, the following:

(1) The record of trial.

(2) Information supplied by the state's attorney or any interested party, including the person.

(3) Information concerning the person's mental condition.

(4) The entire psychiatric and criminal history of the person, including motor vehicle records.

(5) Psychiatric or psychological reports ordered by the Board under ORS 161.346(2).

(6) Psychiatric and psychological reports under ORS 161.341(3), written by a person chosen by the state or the patient to examine the patient.

(7) Testimony of witnesses.

Stat. Auth.: ORS 161
Stats. Implemented: ORS 161.336, 161.341 & 161.346
Hist.: PSRB 1-1985, f. 1-3-85, ef. 1-15-85

859-050-0035

Motion Practice

Any party bringing a motion before the Board shall submit five copies of the motion and memorandum of law to the Board and the opposing party one week prior to the hearing date in which the motion will be heard.

Stat. Auth.: ORS 161
Stats. Implemented: ORS 161.346
Hist.: PSRB 1-1985, f. 1-3-85, ef. 1-15-85

859-050-0040

Objections to Evidence

The chairperson or acting chairperson shall rule on questions of evidence. Hearsay evidence shall not be excluded unless the chairperson or acting chairperson determines the evidence is not material, relevant or reliable.

(1) In determining whether the evidence is material, relevant or reliable, the Board shall consider the following:

(a) The age and source of the documents;

(b) The ability of the witness to have observed and had personal knowledge of the incidents;

(c) The credibility of the witness and whether the witness has bias or interest in the matter.

(2) The person, the person's attorney or attorney representing the state may object to any evidence. The Board may decide the following:

(a) To sustain the objection and deny the admission and consideration of the evidence on the grounds that it is not material, relevant or reliable;

(b) To overrule the objection and admit the evidence and in considering the weight given to that evidence, consider the reason for the objection; or

(c) To grant a continuance for a period of time not to exceed 60 days to allow a witness to appear or be subpoenaed to testify about the evidence under consideration.

Stat. Auth.: ORS 161
Stats. Implemented: ORS 161.346 & 161.385
Hist.: PSRB 1-1985, f. 1-3-85, ef. 1-15-85

859-050-0045

Witnesses and Documents; Subpoena

Witnesses or documents may be subpoenaed as provided in ORS 161.395 upon request of any party to the hearing or on the Board's own motion, upon a proper showing of the general relevance and reasonable scope of the documentary of physical evidence sought:

(1) Witnesses with a subpoena other than parties or state officers or employees shall receive fees and mileage, as prescribed by law.

(2) The Legislature has provided that a judge of the Circuit Court of the county in which the hearing is held shall compel obedience by proceeding for contempt for failure of any person to comply with the subpoena issued.

Stat. Auth.: ORS 161.387
Stats. Implemented: ORS 161.346 & 161.395
Hist.: PSRB 1-1985, f. 1-3-85, ef. 1-15-85; PSRB 1-1995, f. & cert. ef. 1-11-95

859-050-0050

Testimony Given on Oath

The Board shall take testimony of a witness upon oath or affirmation of the witness administered by the chairperson or acting chairperson at the hearing.

Stat. Auth.: ORS 161
Stats. Implemented: ORS 161.346 & 161.385
Hist.: PSRB 1-1985, f. 1-3-85, ef. 1-15-85

859-050-0055

Standards and Burdens of Proof

The standard of proof on all issues at hearings of the Board shall be the preponderance of the evidence. The burden of proof shall depend on the type of hearing:

(1) Initial 90-day hearing under ORS 161.341(7)(a): The state has the burden to show the person continues to be affected by a mental disease or defect and continues to be a substantial danger to others.

(2) Revocation hearing under ORS 161.336(5): The state has the burden to show that the revocation of conditional release was appropriate and that jurisdiction of the Board should continue.

(3) Conditionally released person's request for modification of a conditional release or discharge under ORS 161.336(7)(a): The person has the burden of proving his or her fitness for modification of a conditional release or discharge.

(4) Hospital patient's request for conditional release or discharge under ORS 161.341(4): The person has the burden of proving his or her fitness for conditional release or discharge unless it has been more than 2 years since the State had the burden of proof in which case the burden is on the State.

(5) Request for conditional release or discharge of the patient by the Mental Health and Developmental Disability Services Division under ORS 161.341(2) or by outpatient supervisor under ORS 161.336(7)(b): The state must prove the person is not appropriate for conditional release or discharge.

(6) At a status review hearing under ORS 161.336(2): The state has the burden of proving that the current conditional release, modification of conditional release, or a proposed plan is appropriate.

(7) In all other cases (two-, five-, ten-year hearings): The state bears the burden of proof.

(8) If at any hearing the hospital staff agrees with the patient on the issue of mental disease or defect, dangerousness or fitness for conditional release but no advance notice is given to the Board that the hospital requests discharge or conditional release, the burden of proof remains with the patient. The testimony of hospital staff will be considered as evidence to assist the Board in deciding whether the patient has met his/her burden.

Stat. Auth.: ORS 161.387
Stats. Implemented: ORS 161.336, 161.341 & 161.346
Hist.: PSRB 1-1985, f. 1-3-85, ef. 1-15-85; PSRB 1-1995, f. & cert. ef. 1-11-95

859-050-0060

Burden of Going Forward

The party that has the burden of proof shall also have the burden of going forward with the evidence (call and examine witnesses, propose conditions of release, etc.).

Stat. Auth.: ORS 161.387
Stats. Implemented: ORS 161.346
Hist.: PSRB 1-1985, f. 1-3-85, ef. 1-15-85; PSRB 1-1995, f. & cert. ef. 1-11-95

859-050-0065

Continuance of Hearing

Upon the request of any party or on its own motion, the Board may, for good cause, continue a hearing for a reasonable period of time not to exceed 60 days to obtain additional information or testimony.

Stat. Auth.: ORS 161
Stats. Implemented: ORS 161.346
Hist.: PSRB 1-1985, f. 1-3-85, ef. 1-15-85

859-050-0070

Cancellation of Hearing

Unless a patient asks for cancellation of a hearing for good cause, in writing, and with four weeks' advance notice, the patient shall not be eligible to request a hearing for six months from the date of the scheduled hearing.

Stat. Auth.: ORS 161
Stats. Implemented: ORS 161.346
Hist.: PSRB 1-1985, f. 1-3-85, ef. 1-15-85

859-050-0075

Use of Restraints

(1) The Board prefers to have patients appear at hearings without physical restraints. If, in the judgement of the patient's physician, the patient might need restraining, the Board prefers to have staff attending the hearing with the patient rather than use of physical restraints. However, the final decision on use of restraints lies with the physician.

(2) Any attorney objecting to the patient appearing with restraints at the hearing may raise the issue and ask for testimony from the physician.

Stat. Auth.: ORS 161
Stats. Implemented: ORS 161.346
Hist.: PSRB 1-1985, f. 1-3-85, ef. 1-15-85

859-050-0080

Decisions of the Board

Within 15 days following the conclusion of a hearing, the Board shall provide the person, the attorney representing the person, the district attorney representing the state, the committing court and, where applicable, the Mental Health and Developmental Disability Services Division and local mental health agency or supervisor written notice of the Board's decision:

(1) The order of the PSRB shall be signed by a member present at the hearing.

(2) The board may issue its decision orally on the record at the hearing.

(3) The formal order of the Board shall contain the findings of facts, conclusions of law, reasons for the decision and notice of the right to appeal under ORS 161.385(8).

(4) An order of revocation shall be signed by the chairperson or, if not available, by an acting chairperson or the Executive Director.

Stat. Auth.: ORS 161.387
Stats. Implemented: ORS 161.346
Hist.: PSRB 1-1985, f. 1-3-85, ef. 1-15-85; PSRB 1-1995, f. & cert. ef. 1-11-95

859-050-0085

Notification of Right to Appeal

At the conclusion of a Board hearing, the chair or acting chair shall provide the person and attorney with written notification advising of the right to appeal on an adverse decision within 60 days from the date an order is signed and the right to an attorney is indigent.

Stat. Auth.: ORS 161
Stats. Implemented: ORS 161.385
Hist.: PSRB 1-1985, f. 1-3-85, ef. 1-15-85

859-050-0090

Patient Appearing Pro Se

When a patient waives the right to be represented by an attorney, the Board shall take written or oral testimony and decide whether the patient is capable of understanding the proceedings.

Stat. Auth.: ORS 161
Stats. Implemented: ORS 161.346
Hist.: PSRB 1-1985, f. 1-3-85, ef. 1-15-85

859-050-0095

Examination of Patient

The Board may appoint a psychiatrist or licensed psychologist to examine the person and submit a report to the Board, including an opinion as to the mental condition of the person, whether the person presents a substantial danger to others and whether the person could be adequately controlled on conditional release with treatment and supervision:

(1) The Board may order the person placed in temporary custody of any state hospital or suitable facility for purposes of examination.

(2) The attorney representing the state may choose, at the state's expense, a psychiatrist or licensed psychologist to examine the person. The report shall include a written opinion as to the mental condition of the person, whether the person presents a substantial danger to others and whether the person could be adequately controlled on conditional release with treatment and supervision.

(3) The attorney for the state shall file a written notice of intent to conduct an examination.

(4) The attorney for the patient may file a written request for the Board to appoint a psychiatrist or licensed psychologist to examine the patient. The Board shall approve or deny the request, taking into consideration the budget of the Board available for such examinations and the reasons for the request.

Stat. Auth.: ORS 161
Stats. Implemented: ORS 161.346
Hist.: PSRB 1-1985, f. 1-3-85, ef. 1-15-85

859-050-0100

Use of Teleconferencing and Video Teleconferencing During Hearings

(1) The Board recognizes that in-person attendance at hearings is preferable yet is not always practicable. Therefore, teleconferencing and video teleconferencing may be permitted.

(2) Telephonic participation via telephone is permitted at PSRB Hearings.

(a) All participants on the phone, even if solely listening in, are expected to identify who they are or have a designated person, such as the Victim Advocate or client family member, identify they are participating by phone.

(b) Participants on the phone will be recorded, even if they are muted, by the recording equipment. Therefore, participants are expected to listen to the hearings in a location that will minimize any noise interference, such as television, wind/rain/weather background noise, and conversations with others. When there are multiple participants on the conference line, it is expected that there will be professional decorum.

(c) If Board staff is given prior notice by a telephonic participant with a hearing day contact phone number or e-mail, staff will call or email participants approximately fifteen (15) minutes prior to the start of the hearing.

(3) Video teleconferencing may be used by clients, witnesses or victims when the hearings recording equipment allows for its use.

(a) If the client is appearing via video teleconference, Board staff will ensure that the defense counsel has the ability to consult with the client at any time during the hearing in a setting where the attorney-client privilege is not compromised.

(b) All clients who reside at Oregon Department of Corrections will appear for PSRB hearings via video teleconferencing.

(c) All clients who reside at Junction City State Hospital will appear for hearings via video teleconferencing, unless there is a basis for in-person attendance that cannot be accommodated by teleconferencing and the State Hospital can arrange for transportation.

(A) Either party must request in-person attendance in writing no later than ten (10) days prior to the scheduled hearing.

(B) In-person requests shall contain a basis for the request and some description as to why video teleconferencing is not appropriate for the particular hearing.

(d) Clients or attorneys may request that participants appear via video teleconference when in-person participating is not feasible, such as a client who has difficulty traveling to the hearing location or weather conditions that make travel dangerous.

(3) Any party may request the Board order in-person attendance of a witness or client if the written request is made at least 3 days prior to notice of the hearing. Parties need to give notice to the Board if the party wants in-person presence rather than video presence of other parties or witnesses. The request shall include the basis or reason for in-person attendance that cannot otherwise be achieved via telephone or video teleconferencing.

(4) PSRB Board members may appear by telephone or video teleconferencing when in-person attendance is not practicable.

Stat. Auth.: ORS 161.387
Stats. Implemented: ORS 161.295 - 161.400
Hist.: PSRB 2-2014, f. & cert. ef. 12-18-14

859-050-0105

Protocol for Media at Hearings

(1) Public Access Coverage Defined. As used in this rule:

(a) “Public access coverage” means coverage by means of any public access coverage equipment.

(b) “Public access coverage equipment” means any of the following in the possession of persons other than the PSRB or the PSRB staff: television equipment; still photographer equipment; audio, video, or other electronic recording equipment.

(2) Notification to Record Hearings. The news media must notify the PSRB of their request to record video, still photography, or audio of a PSRB proceeding by submitting a request for media or other public access coverage of PSRB at least one business day (24 hours) prior to the scheduled hearing day. Notice of media or public access coverage requests given to the PSRB less than twenty-four (24) hours prior to a scheduled hearing will be taken under advisement by the Board and may result in coverage access being denied directly in the hearings room. PSRB rules require that an original be filed with the PSRB. Submissions shall be emailed to PSRB at: psrb@psrb.org.

(3) Equipment and Operators

(a) Only one television camera and/or one still camera each with a single camera operator will be permitted in the PSRB proceeding. Cameras and operators must be in designated locations. Interviews may only be conducted in the area designated by the Board, or AMH, if hearings are conducted at OSH.

(b) It is up to the PSRB Board Chair, or Acting Chair, typically through its staff, to decide where cameras and microphones may be placed in the hearings room. Each hearings room is different and PSRB Board members may differ on this so operators must ask for assistance to determine camera placement on the day of the hearing.

(c) Equipment and camera operators must be in place prior to the PSRB hearing. Equipment must not be installed, moved or removed from the hearings room while the PSRB hearing is in session. Camera operators may not move around the hearings room while hearings are in session.

(d) News media must arrange any pooling of footage, photographs or audio among themselves. Typically, the first camera to arrive at the hearings room will be allowed to set-up in the hearings room. The PSRB will not participate in any pooling agreement. The PSRB will not mediate in the event of disagreements about pooling arrangements. Disagreements about pooling arrangements will not result in additional media equipment being allowed into the hearings room and they will not cause a delay in the hearing start time. In the absence of agreement on pooling issues by persons seeking public access coverage, the PSRB Chair or Acting Chair may exclude any or all public access coverage.

(e) No public access coverage device shall be operated by more than one person.

(f) No person shall use public access coverage equipment that interferes or distracts from proceedings in the hearings room.

(g) The video camera must be mounted on a tripod or other device or installed in the hearings room. The tripod or other device must not be moved while the proceedings are in session. Video equipment must be screened where practicable or located and operated as directed by the Board Chair.

(h) No artificial lighting devices of any kind shall be allowed.

(4) Limitations on Access/Media shall not record:

(a) Any notes or conversations intended to be private including, but not limited to counsel, victims, Board members and members of the public attending hearings.

(b) Portions of the hearing that would interfere with the rights of the parties to a fair hearing or would affect the presentation of evidence or outcome of the hearing. This may include if public access coverage affects the PSRB clients ability to effectively participate in his/her hearing.

(c) Any portion of the hearing that would interfere with a victim’s entitlement to due dignity and respect. This may include prohibiting the recording of a victim impact statement or other portions of the hearing that include graphic depictions of the instant offense.

(d) Any cost or increased burden resulting from the public access coverage would interfere with the efficient administration of justice.

(e) Recording equipment may not be used in the visitor area.

(5) A Board Chair may summarily prohibit public access coverage of particular hearing attendees or witnesses, if the attendee or witness so requests.

(6) Violations. Any violation of this rule may result in sanctions including but not limited to the termination of media coverage privileges.

Stat. Auth.: ORS 161.387
Stats. Implemented: ORS 161.295 - 161.400
Hist.: PSRB 2-2014, f. & cert. ef. 12-18-14

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