(1) Upon filing of notice or the introduction of evidence by the defendant as provided in ORS § 161.309, the state shall have the right to have at least one psychiatrist or licensed psychologist of its selection examine the defendant. The state shall file notice with the court of its intention to have the defendant examined.

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(2)(a) Upon filing of the notice, the court, in its discretion, may order the defendant committed to a state mental hospital or any other suitable facility, if the defendant is 18 years of age or older, for observation and examination, which may include treatment as permitted by law.

(b) If the defendant is under 18 years of age, upon filing of the notice, the court, in its discretion, may order the defendant committed to a secure intensive community inpatient facility designated by the Oregon Health Authority for examination.

(c) The state mental hospital or other facility may retain custody of a defendant committed under this subsection only for the duration necessary to complete the observation and examination of the defendant, not to exceed 30 days.

(3) If the defendant objects to the examiner chosen by the state, the court for good cause shown may direct the state to select a different examiner.

(4) An examiner performing an examination on the issue of insanity of a defendant under this section is not obligated to examine the defendant for fitness to proceed unless, during the examination, the examiner determines that the defendant’s fitness to proceed is drawn in question. If, during the examination, the examiner determines that the defendant’s fitness to proceed is in doubt, the examiner shall report the issue to the court and to the superintendent of the state mental hospital or the superintendent’s designee, or to the director of the facility to which the defendant is committed. The superintendent or director may:

(a) Return the defendant to the facility from which the defendant was transported; or

(b) Inform the court and the parties that the defendant should remain at the state mental hospital or other facility for the purpose of an examination under ORS § 161.365. If neither party objects, the court may order an examination under ORS § 161.365 without holding a hearing.

(5) A report resulting from an examination under this section may be filed with the court electronically.

(6)(a) Reports resulting from examinations conducted under this section are confidential and may be made available only:

(A) To the court, prosecuting attorney, defense attorney, agent of the prosecuting or defense attorney, defendant, community mental health program director or designee and any facility in which the defendant is housed; or

(B) As ordered by a court.

(b) Any facility in which a defendant is housed may not use a report prepared under this section to support a disciplinary action against the defendant.

(c) Nothing in this subsection prohibits the prosecuting attorney, defense attorney or agent of the prosecuting or defense attorney from discussing the contents of a report prepared under this section with witnesses or victims as otherwise permitted by law. [1971 c.743 § 42; 1977 c.380 § 3; 2007 c.14 § 5; 2009 c.595 § 101; 2011 c.724 § 10; 2017 c.48 § 2; 2019 c.311 § 3; 2019 c.538 § 3a]