Oregon State Hospital v. Butts

No. 40 October 8, 2015 49
IN THE SUPREME COURT OF THE
STATE OF OREGON
OREGON STATE HOSPITAL,
Relator,
and
STATE OF OREGON,
Plaintiff,
v.
DANIEL ARMAUGH BUTTS,
Defendant-Adverse Party.
(CC 111002; SC S063003)
En Banc
Original proceeding in mandamus.*
Argued and submitted July 1, 2015.
Anna M. Joyce, Solicitor General, Salem, argued the
cause and filed the brief for relator. With her on the brief
was Ellen F. Rosenblum, Attorney General.
Laura Graser, Portland, argued the cause and filed the
brief for adverse party.
Tara Lawrence, Lawrence Law Office P.C., Portland, filed
the brief for amici curiae Amy Painter, Julie Heuer, Angie
Kneeland, Jeremy Howell, Jennifer Birch, Ryan Painter,
R.P. (a minor), Kathy Painter, Alan Painter, Manuel Painter,
Mashelle Painter, and Bethany Painter. She was joined
on the brief by Margaret Garvin on behalf of amicus cur-
iae National Crime Victim Law Institute at Lewis & Clark
College. With her on the brief were Alison Wilkinson and
Amy C. Liu.
BALDWIN, J.
The alternative writ of mandamus is dismissed.
______________
* On petition for a writ of mandamus from an order of Columbia County
Circuit Court, Ted E. Grove, Judge.
50 Oregon State Hospital v. Butts
Case Summary: The trial court issued a Sell order directing relator, Oregon
State Hospital (OSH), to administer involuntary medication to the adverse party
(defendant) in a criminal case for the purpose of restoring defendant’s capacity to
stand trial on felony charges. OSH petitioned for a writ of mandamus directing
the trial court to vacate the order. Held: Mandamus relief was not appropriate
in this case, because the trial court’s Sell order directing OSH to involuntarily
medicate defendant was authorized by ORS 161.370.
The alternative writ of mandamus is dismissed.
Cite as 358 Or 49 (2015) 51
BALDWIN, J.
In this mandamus proceeding, we consider a chal-
lenge to the validity of a trial court’s Sell order directing
relator, Oregon State Hospital (OSH), to administer invol-
untary medication to the adverse party (defendant) in
a criminal case for the purpose of restoring defendant’s
capacity to stand trial on felony charges.1 For the reasons
we explain below, we conclude that ORS 161.370(1) granted
the trial court implied authority to issue the order—which
was based on the trial court’s assessment of all the medical
evidence—even though OSH did not agree that administer-
ing the medication was medically necessary. We therefore
dismiss the alternative writ of mandamus issued by this
court.
I. BACKGROUND
The pertinent facts in this matter are uncontested.
In January 2011, defendant was indicted on 21 felony counts,
including nine counts of aggravated murder, for allegedly
causing the death of Rainier Police Chief Ralph Painter.
Shortly after defendant was indicted, his attorneys became
concerned about his ability to aid and assist in his defense.
The defense hired a psychiatrist, Dr. Larsen, to evaluate
defendant. Larsen concluded that defendant suffered from
psychosis and possibly schizophrenia, and recommended
that defendant be treated with antipsychotic medication.
Pursuant to ORS 161.365(1)(b), the trial court
ordered that defendant be committed to OSH’s physical cus-
tody so that the hospital could evaluate defendant’s ability
to aid and assist.2 Defendant was admitted to OSH for 21
1
A Sell order is a court order directing the involuntary administration of
antipsychotic drugs to render a defendant competent to stand trial in accordance
with the due process requirements enunciated in Sell v. United States, 539 US
166, 123 S Ct 2174, 156 L Ed 2d 197 (2003). See State v. Lopes, 355 Or 72, 77-78,
322 P3d 512 (2014) (discussing Sell).
2
ORS 161.365(1)(b) provides:
“(1)  When the court has reason to doubt the defendant’s fitness to pro-
ceed by reason of incapacity as described in ORS 161.360, the court may call
any witness to its assistance in reaching its decision. If the court determines
the assistance of a psychiatrist or psychologist would be helpful, the court
may:
“* * * * *
52 Oregon State Hospital v. Butts
days in July 2011, where he was evaluated by a hospital psy-
chologist, Dr. Howard. Based on her evaluation of defendant,
Howard concluded that defendant did not suffer from a men-
tal disease or defect and that he was able to aid and assist
in his defense.
In December 2011, the trial court held a two-
day hearing to determine defendant’s fitness to proceed.
Following the hearing, the court determined that defendant
was able to aid and assist. The court noted that various
doctors had offered competing medical opinions regarding
defendant’s mental health. The court also noted that defen-
dant’s behavior, although “disturbing,” would “support a
finding that defendant is gaming the system.” Nevertheless,
the court indicated that it did not see any reason why defen-
dant should not be provided with the antipsychotic medica-
tion that Larsen had prescribed. The court therefore ordered
that “such medication be provided to defendant if requested
by him or his counsel.”
A couple of months later, the trial court ordered
that defendant be committed to OSH a second time for inpa-
tient observation and evaluation. Defendant was hospital-
ized from April 25 to May 10, 2012. Dr. Sethi, a hospital
psychiatrist, evaluated defendant and concluded that he did
not suffer from a mental disease or defect. Sethi noted that,
because defendant had not participated in a detailed inter-
view, Sethi “was not able to conduct a formal assessment of
[defendant’s] factual and rational understanding of the legal
process.” However, based on defendant’s statements that
he did not want to face the death penalty and defendant’s
description of himself as “clinically insane,” Sethi concluded
that defendant was aware that he was “facing serious legal
charges with the potential for a death penalty.”
In February 2013, the trial court held a second
hearing to determine defendant’s fitness to proceed. Based
on the conflicting medical evidence presented at that
“(b)  Order the defendant to be committed for the purpose of an exam-
ination for a period not exceeding 30 days to a state mental hospital or other
facility designated by the Oregon Health Authority if the defendant is at least
18 years of age, or to a secure intensive community inpatient facility desig-
nated by the authority if the defendant is under 18 years of age.”
Cite as 358 Or 49 (2015) 53
hearing, the court noted that it remained unclear whether
defendant’s failure to cooperate with counsel or participate
in his defense was a “rational and calculated strategy or the
product of a mental disorder.” However, the court ultimately
determined that “defendant is currently unable to aid and
assist in his defense and that such inability is the result
of his current[ ] mental deficiencies, possibly schizophrenia.”
The court ordered that defendant be committed to OSH for
treatment, including the involuntary administration of anti-
psychotic medication, for the purpose of restoring his capac-
ity to stand trial.
Pursuant to that order, defendant was returned to
OSH for a third time in March 2013, where he was evalu-
ated by several doctors. Dr. Stover, a hospital psychologist,
evaluated defendant to determine his ability to aid and
assist. Stover concluded that defendant did not have a men-
tal disorder or defect that would interfere with his ability to
aid and assist and that he was malingering.
Two other doctors, Dr. McCarthy and Dr. Knott,
evaluated defendant to determine whether he should be
involuntarily administered antipsychotic medication due to
his “dangerousness” or “grave disability.” See OAR 309-114-
0020(1)(e) (providing that OSH has good cause to admin-
ister medication without patient’s informed consent when
“[t]he patient is being medicated because of the patient’s
dangerousness or to treat the patient’s grave disability”).
McCarthy, an independent physician, diagnosed defendant
with a psychotic disorder and recommended that he be
involuntarily medicated. Knott, a hospital physician, like-
wise determined that defendant was showing symptoms of
a psychotic disorder and made the same recommendation.
Based on those recommendations, the hospital’s chief medi-
cal officer approved the involuntary administration of anti-
psychotic medication to defendant.3
Although defendant initially requested an admin-
istrative hearing to contest the hospital’s approval of invol-
untary medication, he later withdrew his request. An
3
After the involuntary medication was approved, Knott later concluded that
defendant did not have a psychotic disorder but did have depression and possibly
a personality disorder.
54 Oregon State Hospital v. Butts
administrative law judge (ALJ) dismissed the hearing
request in a written order on May 1, 2013. In that order,
the ALJ authorized the hospital “to immediately administer
[antipsychotic medication to defendant] without informed
consent.”
About a month later, when the hospital had not med-
icated defendant pursuant to the ALJ’s order, defendant’s
counsel sought an order from the trial court to involuntarily
medicate defendant. The trial court held a hearing, at which
defendant argued that, despite the authorizations from both
the trial court and the ALJ, OSH had not administered
any antipsychotic medications to defendant. The prosecutor
responded that, before a court may order that defendant be
involuntary medicated to restore his trial competency pur-
suant to Sell, the court must first make a finding that defen-
dant is mentally ill. The prosecutor contended that the trial
court had not made such a finding in this case. At the end of
the hearing, the court took the matter under advisement.
In September 2014, the trial court entered a Sell
order, directing OSH to involuntarily administer antipsy-
chotic medication to defendant for the purpose of enabling
him to gain or regain capacity to stand trial. The court relied
on the evidence presented at the February 2013 hearing; the
court’s prior finding that defendant lacked the ability to aid
and assist as a result of a mental disease or defect; and a
September 2014 affidavit submitted by Dr. Adler, a defense
expert. In his affidavit, Adler recommended a treatment
regimen of antipsychotic medication designed to restore
defendant’s capacity to stand trial. The court found that
“[t]he recommended treatment is substantially likely to
enable Defendant to gain or regain his capacity to stand
trial, because administration of the medication to the defen-
dant is medically appropriate, i.e., in the defendant’s best
medical interest in light of his medical condition.” The court
therefore ordered defendant to be returned to OSH’s phys-
ical custody to receive the recommended treatment. The
prosecutor and OSH moved to vacate the Sell order, and the
trial court denied those motions.
On January 16, 2015, the court issued the Sell order
at issue in this case, reaffirming the court’s prior orders and
Cite as 358 Or 49 (2015) 55
again ordering OSH to involuntarily administer the recom-
mended antipsychotic medications to defendant. OSH then
filed this mandamus proceeding, and this court issued an
alternative writ of mandamus.
II.  PARTY’S ARGUMENTS
In State v. Lopes, 355 Or 72, 322 P3d 512 (2014),
this court recently granted mandamus relief to a criminal
defendant who objected to a Sell order that directed OSH to
involuntarily medicate him to restore his capacity to stand
trial. The court held that ORS 161.370 implicitly authorized
the trial court to issue the Sell order but also concluded that
the particular order at issue did not comply with the due
process requirements enunciated in Sell. Id. at 89, 103. This
court provided defendant with mandamus relief to prevent a
violation of defendant’s due process rights. Id. at 103. Thus,
the trial court was ordered to vacate its Sell order.
In this case, OSH—not defendant—has challenged
the validity of the trial court’s Sell order. That dispute cen-
ters on whether the trial court, under ORS 161.370,4 has the
authority to order OSH to involuntarily medicate defendant
after making findings based on medical evidence, when
OSH does not agree that such treatment is medically neces-
sary. OSH’s primary argument is that, “while the trial court
has the ultimate authority to determine whether an individ-
ual has the capacity to aid and assist at trial [under ORS
161.370], it is within the exclusive province of the hospital
to determine whether, and what, medication is necessary to
treat mental illness.” OSH argues that ORS 161.370 should
be interpreted to leave all treatment decisions to OSH, not-
withstanding the authority that statute confers on a trial
court to issue a Sell order when it determines that a defen-
dant is unfit to stand trial.
Defendant argues that ORS 161.370 confers on
trial courts the authority to order that a defendant be
medicated—whether or not an OSH doctor agrees with
that determination. Although defendant is unable to point
to a specific provision in ORS 161.370 that expressly con-
fers such authority on trial courts, he argues that this court
4
ORS 161.370(1) to (6)(a) is set out in the appendix to this opinion.
56 Oregon State Hospital v. Butts
should conclude that ORS 161.370 so provides by implica-
tion, relying on Lopes, 355 Or at 89 (“By implication, [ORS
161.370] * * * grants trial courts authority to issue Sell
orders when necessary to enable hospitals to provide that
treatment.”). Defendant further argues that if trial courts
do not have that implicit authority, criminal proceedings
could be brought to a standstill whenever OSH disagrees
with a trial court’s decision that the involuntary medication
of a defendant is appropriate.
III. ANALYSIS
As this court summarized in Lindell v. Kalugin,
353 Or 338, 347, 297 P3d 1266 (2013):
“Mandamus is ‘an extraordinary remedy’ and serves a
limited function. Sexson v. Merten, 291 Or 441, 445, 631
P2d 1367 (1981). It is a statutory remedy aimed at correct-
ing errors of law for which there is no other ‘plain, speedy
and adequate remedy in the ordinary course of the law.’
ORS 34.110. Importantly, as this court has stated many
times, ‘[i]t has become hornbook law in this state that the
writ of mandamus cannot be used as a means of controlling
judicial discretion.’ State ex rel. Ricco v. Biggs, 198 Or 413,
422, 255 P2d 1055 (1953); see also State ex rel Douglas
County v. Sanders, 294 Or 195, 198 n 6, 655 P2d 175 (1982)
(‘Mandamus is not available to review the exercise of trial
court discretion.’). Only if the trial court’s decision amounts
to ‘fundamental legal error’ or is ‘outside the permissible
range of discretionary choices’ will the remedy of manda-
mus lie. State ex rel Keisling v. Norblad, 317 Or 615, 623,
860 P2d 241 (1993).”
The primary issue presented here is whether the
trial court had authority to order OSH to medicate defen-
dant when OSH does not agree that such treatment is med-
ically necessary. See Lindell, 353 Or at 347 (mandamus
serves limited function of correcting errors of law); State
ex rel Maizels v. Juba, 254 Or 323, 331, 460 P2d 850 (1969)
(“[I]n an otherwise proper case, mandamus may be used to
decide disputed and difficult questions of law.”).
We begin our analysis with a brief discussion of this
court’s recent decision in Lopes. See State v. Cloutier, 351
Or 68, 100, 261 P3d 1234 (2011) (statutory analysis may be
informed by this court’s prior judicial construction of same
Cite as 358 Or 49 (2015) 57
statute or predecessors). As previously mentioned, in Lopes,
this court sustained a defendant’s due process challenge to
the sufficiency of a trial court’s Sell order directing OSH
to involuntarily medicate a defendant after the trial court
had found that the defendant was unable to aid and assist.
However, before reaching that issue, the court first deter-
mined whether ORS 161.370 authorizes trial courts to issue
Sell orders. After concluding that “trial court authority to
issue Sell orders must be found in Oregon law,” 355 Or at
78, the court observed that the enactment of ORS 161.360 to
161.370 predated Sell:
“Unlike many states, Oregon has not enacted statutes
that explicitly grant trial courts authority to enter Sell
orders or that implement the Court’s decision in Sell. The
Oregon legislature enacted ORS 161.360 to 161.370, the
statutes that govern a defendant’s incompetence to stand
trial, in 1971, before Sell was decided. Or Laws 1971,
ch 743, §§ 50 to 52. Neither those statutes as originally
enacted nor the amendments to those statutes expressly
grant trial courts authority to enter Sell orders or set forth
the criteria that a court should apply when considering
whether to grant such an order.”
Id. at 78-79 (footnote omitted). This court concluded that
courts have implicit authority to issue Sell orders under
ORS 161.370 to order hospitals to involuntarily medicate
defendants for the purpose of restoring their fitness to stand
trial. Id. at 89.
Unlike in this case, as noted above, in Lopes it was
the defendant who challenged the trial court’s authority
to order involuntary medication. This court observed that
Lopes did not involve a situation where the hospital opposed
a trial court order directing the involuntary medication of a
defendant:
“The hospital deems that treatment appropriate but has
declined to order it because relator refuses it and does not
have ‘an immediate problem with violence or grave disabil-
ity related to his own self-care.’ Thus, this case does not
present the question whether a trial court has authority
to order a defendant to be involuntarily medicated when a
hospital opposes such treatment. Rather, the question here
is whether a trial court has authority to enter a Sell order
58 Oregon State Hospital v. Butts
that will enable a hospital to act in the manner that the
hospital determines to be medically appropriate.”
Id. at 84.
In contrast, the question in this case is whether
OSH may disregard a Sell order issued by a trial court
because OSH does not agree with the trial court’s finding
that defendant should be involuntarily medicated. Stated
differently, was the trial court authorized to order OSH to
medicate defendant under the circumstances, and did OSH
have a duty to comply with the order? The trial court, on
the record, made extensive findings of fact based on med-
ical evidence concerning the issue of defendant’s fitness to
stand trial. After multiple hearings, the trial court deter-
mined that defendant was unfit to proceed to trial, which
resulted in the suspension of the underlying criminal pro-
ceeding. See ORS 161.370(1) - (2) (requiring court to deter-
mine issue whether a defendant is fit to proceed and, if not,
to suspend criminal proceeding). The trial court found that
“it is substantially likely that the medication [that the court
has directed] will restore the defendant to competency” and
that the “[a]dministration of the medication is medically
appropriate, because it is in the patient’s best medical inter-
est in light of his medical condition.” The trial court made
those findings after resolving disputed factual issues based
on medical testimony in the proper exercise of its role as
factfinder.
As previously stated, mandamus jurisdiction serves
a limited function and will not be invoked by this court to
control or review judicial discretion. Lindell, 353 Or at 347;
ORS 34.110 (“A writ of mandamus * * * shall not control judi-
cial discretion.”); see also State ex rel. v. Duncan, 191 Or 475,
492, 230 P2d 773 (1951) (“Plainly, the legislature intended
that mandamus should be an extraordinary remedy. * * *
In order to lessen the possibility of being misunderstood,
our statute added the words that the writ should never be
employed as a means of controlling judicial discretion.”);
State ex rel Ware v. Hieber, 267 Or 124, 128, 515 P2d 721
(1973) (when facts are in dispute, trial court is using judicial
discretion to decide the facts and mandamus not available
as a remedy to compel trial court to decide disputed facts
Cite as 358 Or 49 (2015) 59
in a particular way); State ex rel. Bethke v. Bain, 193 Or
688, 703, 240 P2d 958 (1952) (where facts are in dispute,
or where no strict rule of law is applicable, exercise of trial
judge’s sound discretion cannot be disturbed or controlled
by mandamus). Thus, mandamus relief is not available to
OSH solely based on its disagreement with the trial court’s
findings of fact.
We therefore turn to OSH’s argument that ORS
161.370 does not confer authority on a trial court to order
OSH to administer medication when OSH has determined
that that treatment is not medically necessary.5 OSH argues
that, under ORS 161.370, it is “within the exclusive province
of the superintendent or director to determine what treat-
ment, if any, is necessary for defendant to regain the capac-
ity to stand trial.” In so arguing, OSH relies heavily on the
provisions of ORS 161.370(5) and (6)(a).
ORS 161.370(5) outlines the superintendent’s duty
to cause a defendant to be evaluated, to determine defen-
dant’s capacity to stand trial, and to notify the trial court of
its determinations and the basis for those determinations.
Under ORS 161.370(5)(b)(C), when there is a substantial
probability that the defendant, in the foreseeable future,
will gain or regain the capacity to stand trial, “the super-
intendent or director shall give the court an estimate of the
time in which the defendant, with appropriate treatment,
is expected to gain or regain capacity.” ORS 161.370(6)(a)
further provides that,
“[i]f the superintendent or director determines that there is
a substantial probability that, in the foreseeable future, the
defendant will gain or regain the capacity to stand trial,
unless the court otherwise orders, the defendant shall
5
OSH has also argued, as a basis for mandamus relief, that the trial court’s
order is not supported by clear and convincing evidence as required by Sell. That
evidentiary requirement is one of the due process factors enunciated in Sell to
protect criminal defendants who object to being involuntarily medicated. OSH
focuses its argument on “the fact that the court based its Sell order in large part
on the opinions of Dr. Larsen and Dr. Adler.” OSH’s argument regarding the evi-
dentiary standard required by Sell is otherwise undeveloped. We therefore view
that argument—at its core—to be a disagreement with the trial court’s findings
of fact. Under these circumstances, we reject OSH’s argument without further
discussion. See Ware, 267 Or at 128 (mandamus not available to compel court to
decide facts in a particular way).
60 Oregon State Hospital v. Butts
remain in the superintendent’s or director’s custody where
the defendant shall receive treatment designed for the pur-
pose of enabling the defendant to gain or regain capacity.”
ORS 161.370(5) and (6)(a) thus describe OSH’s responsibil-
ity to evaluate and treat a defendant after a trial court has
found that the defendant is not fit to proceed and has com-
mitted the defendant to the custody of OSH.
However, ORS 161.370(5) and (6)(a) provide only
limited support for OSH’s contention that “it is the hospi-
tal, and the hospital only” that has the authority to design
and administer a course of treatment aimed at restoring a
defendant’s capacity to stand trial. Paragraph (6)(a) man-
dates that “the defendant shall receive treatment designed
for the purpose of enabling the defendant to gain or regain
capacity.” (Emphasis added.) That paragraph requires that
a defendant receive treatment, but it does not specify who
must design or administer such treatment. Likewise, sub-
paragraph (5)(b)(C) requires the superintendent or director
of OSH to “give the court an estimate of the time in which
the defendant, with appropriate treatment, is expected to
gain or regain capacity.” (Emphasis added.). Again, contrary
to what OSH contends, that subparagraph does not allocate
to OSH the exclusive authority to determine what treatment
is “appropriate.”
Ultimately, ORS 161.370(5) and (6)(a) do not resolve
the interpretive dispute presented in this case. As this court
observed in Lopes, “[n]either [ORS 161.360 to 161.370] as
originally enacted nor the amendments to those statutes
expressly grant trial courts authority to enter Sell orders or
set forth the criteria that a court should apply when consid-
ering whether to grant such an order.” 355 Or at 79. Thus,
understandably, ORS 161.370—including the provisions on
which OSH relies—does not set forth the relative author-
ity of trial courts and OSH with respect to the treatment
ordered by the trial court in this case. ORS 161.370 does
not explicitly address whether a trial court is authorized
to issue a Sell order when an OSH doctor has not recom-
mended the involuntary administration of medication to
restore fitness. Indeed, OSH concedes that ORS 161.370
“is silent” as to what happens “when the court rejects the
Cite as 358 Or 49 (2015) 61
hospital’s conclusion that the defendant has the capacity
to stand trial and instead determines that the defendant,
while currently unable to aid and assist, will nonetheless
regain that capacity.”
In Lopes, we concluded that trial courts impliedly
have the authority to issue Sell orders under ORS 161.370:
“Under ORS 161.370, trial courts may commit defendants
who are unable to aid and assist to a state hospital and the
hospital must provide such defendants with ‘appropriate’
treatment. See ORS 161.370(5)(b)(C) (requiring hospital
to inform court of time estimate in which defendant, with
appropriate treatment, is expected to gain or regain capac-
ity). More particularly, a hospital must provide treatment
that is ‘designed for the purpose of enabling the defendant
to gain or regain capacity.’ ORS 161.370(6)(a). * * * ORS
161.370 grants trial courts authority to commit defendants
to hospitals for treatment that is designed to restore their
trial competency. By implication, that statute also grants
trial courts authority to issue Sell orders when necessary
to enable hospitals to provide that treatment.
“We do not accept relator’s argument that the absence
of explicit authority to issue Sell orders means that trial
courts are precluded from acting. ORS 161.370 grants
Oregon trial courts and hospitals, acting together in their
respective roles, the power to commit and treat defendants
so that they will be able to aid and assist at trial. ‘[W]here
a power is conferred by an act, everything necessary to
carry out that power and make it effectual and complete
will be implied.’ Pioneer Real Estate Co. v. City of Portland,
119 Or 1, 10, 247 P 319 (1926). See also Lane Transit
District v. Lane County, 327 Or 161, 168 n 4, 957 P2d 1217
(1998) (citing Pioneer Real Estate in support of the proposi-
tion that an agency’s power to appoint a manager ‘carries
with it an implied power to fix the terms’ of the manager’s
employment).”
355 Or at 89-90.
As noted, ORS 161.370 does not explicitly confer
authority on trial courts to order that a defendant receive
particularized treatment. However, ORS 161.370(1) pro-
vides: “When the defendant’s fitness to proceed is drawn in
question, the issue shall be determined by the court.” Where,
62 Oregon State Hospital v. Butts
as here, a trial court has found that a defendant is not fit
to proceed based on medical evidence, we conclude that the
general authority conferred by ORS 161.370(1), by implica-
tion, also confers on trial courts the authority to issue Sell
orders whether or not an OSH doctor has agreed that the
medication ordered is medically necessary. Lopes, 355 Or at
89-90; Pioneer Real Estate, 119 Or at 10. We limit this hold-
ing to the issuance of Sell orders only.
We also note that the provisions of ORS 161.370,
taken together, reflect a legislative intent for the trial court
to have ultimate decision-making authority over fitness pro-
ceedings pursuant to that statute. For example:
• the court has the authority, if it determines that the
defendant lacks fitness to proceed, to suspend the
criminal proceedings, ORS 161.370(2);
• the court has the authority to commit the defendant
to the custody of OSH, ORS 161.370(2)(a);
• the court has the discretion to dismiss the charges
against the defendant if the court believes that so
much time has elapsed that it would be unjust to
resume the criminal proceeding, ORS 161.370(4);
• the superintendent and the director are required to
provide reports of the defendant’s progress to the
court, ORS 161.370(5) - (6); and
• the court has the authority to “determine whether
there is a substantial probability that the defen-
dant, in the foreseeable future, will gain or regain
the capacity to stand trial” and, if not, to dismiss
the charges against the defendant or initiate civil
commitment proceedings, ORS 161.370(10).
Additionally, provisions of both ORS 161.365 and
ORS 161.370 grant the court broad authority, in making a
fitness determination, to hold hearings and consider all rel-
evant evidence. In particular, ORS 161.365(1) provides that,
when the court has reason to doubt a defendant’s fitness to
proceed, “the court may call any witness to its assistance”
in reaching a decision. (Emphasis added.) ORS 161.365 fur-
ther provides that the court may order that a psychiatrist
Cite as 358 Or 49 (2015) 63
or psychologist examine the defendant and prepare a report
that recommends treatment necessary to restore capac-
ity. ORS 161.365(1)(a), (2)(d). Similarly, ORS 161.370(1)
provides that the court may make a fitness determination
based on the report filed under ORS 161.365. If the fitness
finding is contested, however, the court must hold a hearing
to determine the issue. ORS 161.370(1). Those provisions
indicate a legislative intent that the trial court weigh med-
ical evidence and make appropriate determinations regard-
ing a defendant’s capacity to stand trial.
The fitness procedures described in ORS 161.370
are intended to facilitate the trial court’s ability to make
determinations about a defendant’s fitness to proceed in the
context of a pending criminal proceeding. The trial court
must suspend a criminal proceeding if it determines that a
defendant lacks the fitness to proceed. ORS 161.370(2). Only
when fitness is restored may the criminal proceeding move
forward. ORS 161.370(4). ORS 161.370 includes numerous
notice and time requirements so that the trial court is timely
advised about a defendant’s status during the period of time
that a criminal proceeding is suspended. ORS 161.370(5) -
(6), (8) - (9). Those provisions reflect a legislative intention
that the procedures not cause unreasonable delay and, when
possible, that the criminal proceeding move forward in a
timely fashion.
We therefore reject OSH’s argument that the leg-
islature intended, effectively, to grant OSH a veto power in
any case in which the hospital disagrees with the court’s
fitness and treatment determination. The statutory frame-
work makes clear that, in making a fitness determination,
the court has the authority to hold hearings and consider all
relevant medical evidence—including evidence that contra-
dicts the medical determination made by OSH staff. OSH’s
position that it has the authority to bring the criminal pro-
ceeding to a standstill if it disagrees with the court’s fitness
and treatment determination creates a stalemate inconsis-
tent with that statutory purpose.
As we noted in Lopes, “[t]he procedures prescribed
by ORS 161.370 take place within a specific set of time con-
straints.” Id. at 82. This criminal proceeding has been at
64 Oregon State Hospital v. Butts
a standstill since the trial court ordered OSH to medicate
defendant in February 2013. Under ORS 161.370—as OSH
acknowledges—if the trial court’s order in this case were
not implicitly authorized, the only remaining options avail-
able to the trial court would be to (1) continue to periodically
order additional evaluations of defendant (in addition to
the three evaluations that OSH has already performed) or
(2) dismiss this criminal prosecution without prejudice pur-
suant to ORS 161.370(10) (so providing if the court deter-
mines that there is no substantial probability that defen-
dant, in the foreseeable future, will regain the capacity to
stand trial). We do not think that the legislature—in enact-
ing ORS 161.370—intended that a trial court would be lim-
ited to those two narrow options under the circumstances
presented in this case.
Finally, OSH generally argues that OSH doctors
could conceivably object—based on ethical standards—to
administering medication to defendant because no OSH
doctor has determined that the medication is medically nec-
essary. However, OSH has not demonstrated that no doc-
tor is unable or unwilling to provide treatment to defendant
as ordered by the trial court. To the contrary, the record
indicates that the involuntary medication ordered by the
court was also authorized by OSH’s chief medical officer on
a different ground. As previously noted, in May 2013, an
ALJ authorized OSH “to immediately administer [antipsy-
chotic medication to defendant] without informed consent.”6
That authorization followed the evaluation of defendant by
Dr. McCarthy, an independent physician, and Dr. Knott, an
OSH physician, who had both recommended involuntary
medication due to defendant’s “dangerousness” or “grave dis-
ability” within the meaning of OAR 309-114-0020(1)(e). The
record does not disclose why OSH did not involuntarily med-
icate defendant pursuant to those authorizations.7 Moreover,
the record is replete with medical evidence supporting the
trial court’s order. OSH has not shown that it is unable to
6
Defense counsel also agreed that OSH should administer the medication
immediately, and counsel has actively pursued that result.
7
The order issued by the ALJ was valid for 180 days under OAR
309-114-0020(7).
Cite as 358 Or 49 (2015) 65
comply with the trial court’s order or that compliance would
pose an ethical conflict for any OSH doctor.8
IV. CONCLUSION
We conclude that the trial court’s Sell order direct-
ing OSH to involuntarily medicate defendant was authorized
by ORS 161.370 and that mandamus relief is not appropri-
ate in this case. We therefore dismiss the alternative writ of
mandamus issued by this court.
The alternative writ of mandamus is dismissed.
8
We respect the expertise and opinions of the OSH doctors who have
asserted that the treatment ordered by the trial court is not medically necessary.
However, other doctors asserted different opinions, and the trial court based its
Sell order on those opinions in the underlying criminal proceeding. Pursuant
to ORS 161.370(1), it is the trial court’s resolution of that factual dispute that
controls.
66 Oregon State Hospital v. Butts
APPENDIX
ORS 161.370, provides, in pertinent part:
“(1)  When the defendant’s fitness to proceed is drawn
in question, the issue shall be determined by the court. If
neither the prosecuting attorney nor counsel for the defen-
dant contests the finding of the report filed under ORS
161.365, the court may make the determination on the
basis of the report. If the finding is contested, the court
shall hold a hearing on the issue. If the report is received in
evidence in the hearing, the party who contests the finding
has the right to summon and to cross-examine any psy-
chiatrist or psychologist who submitted the report and to
offer evidence upon the issue. Other evidence regarding the
defendant’s fitness to proceed may be introduced by either
party.
“(2)  If the court determines that the defendant lacks
fitness to proceed, the criminal proceeding against the
defendant shall be suspended and:
“(a)  If the court finds that the defendant is danger-
ous to self or others as a result of mental disease or defect,
or that the services and supervision necessary to restore
the defendant’s fitness to proceed are not available in the
community, the court shall commit the defendant to the
custody of the superintendent of a state mental hospital
or director of a facility, designated by the Oregon Health
Authority, if the defendant is at least 18 years of age, or to
the custody of the director of a secure intensive community
inpatient facility designated by the authority if the defen-
dant is under 18 years of age; or
“(b)  If the court does not make a finding described in
paragraph (a) of this subsection, or if the court determines
that care other than commitment for incapacity to stand
trial would better serve the defendant and the community,
the court shall release the defendant on supervision for as
long as the unfitness endures.
“(3)  When a defendant is released on supervision under
this section, the court may place conditions that the court
deems appropriate on the release, including the require-
ment that the defendant regularly report to the authority
or a community mental health program for examination to
determine if the defendant has regained capacity to stand
trial.
Cite as 358 Or 49 (2015) 67
“(4)  When the court, on its own motion or upon the
application of the superintendent of the hospital or director
of the facility in which the defendant is committed, a per-
son examining the defendant as a condition of release on
supervision, or either party, determines, after a hearing, if
a hearing is requested, that the defendant has regained fit-
ness to proceed, the criminal proceeding shall be resumed.
If, however, the court is of the view that so much time has
elapsed since the commitment or release of the defendant
on supervision that it would be unjust to resume the crim-
inal proceeding, the court on motion of either party may
dismiss the charge and may order the defendant to be dis-
charged or cause a proceeding to be commenced forthwith
under ORS 426.070 to 426.170 or 427.235 to 427.290.
“(5)  The superintendent of a state hospital or direc-
tor of a facility to which the defendant is committed shall
cause the defendant to be evaluated within 60 days from
the defendant’s delivery into the superintendent’s or direc-
tor’s custody, for the purpose of determining whether there
is a substantial probability that, in the foreseeable future,
the defendant will have the capacity to stand trial. In addi-
tion, the superintendent or director shall:
“(a)  Immediately notify the committing court if the
defendant, at any time, gains or regains the capacity to
stand trial or will never have the capacity to stand trial.
“(b)  Within 90 days of the defendant’s delivery into the
superintendent’s or director’s custody, notify the commit-
ting court that:
“(A)  The defendant has the present capacity to stand
trial;
“(B)  There is no substantial probability that, in the
foreseeable future, the defendant will gain or regain the
capacity to stand trial; or
“(C)  There is a substantial probability that, in the
foreseeable future, the defendant will gain or regain the
capacity to stand trial. If the probability exists, the super-
intendent or director shall give the court an estimate of the
time in which the defendant, with appropriate treatment,
is expected to gain or regain capacity.
“(6)(a) If the superintendent or director deter-
mines that there is a substantial probability that, in the
68 Oregon State Hospital v. Butts
foreseeable future, the defendant will gain or regain the
capacity to stand trial, unless the court otherwise orders,
the defendant shall remain in the superintendent’s or direc-
tor’s custody where the defendant shall receive treatment
designed for the purpose of enabling the defendant to gain
or regain capacity. In keeping with the notice requirement
under subsection (5)(b) of this section, the superintendent
or director shall, for the duration of the defendant’s period
of commitment, submit a progress report to the committing
court, concerning the defendant’s capacity or incapacity, at
least once every 180 days as measured from the date of the
defendant’s delivery into the superintendent’s or director’s
custody.”