Oregon Advisory Opinions January 01, 1968: OP 6421

Advisory Opinion Text

A person committed to the Oregon State Hospital for "not more than 45 days" for psychiatric examination and observation to determine whether he is a sexually dangerous person is "a pa­tient at a state institution for the men­tally ill" within the meaning of the Relatives' Responsibility Act.

No. 6421 January 8,1968 Mr. Carl A. Haugerud, Secretary State Board of Control You ask whether the Oregon State Hospital can charge the counties for psychiatric examinations required under ORS 426.610 for the examination and commitment of sexually dangerous per­sons.

The statutory provisions immediately preceding ORS 426.610 provide that the district attorney may file a complaint with the court when he believes a per­son to be sexually dangerous. ORS 426.520. A citation is then issued and, upon appearance before the court, the judge or the jury, if requested, issues a special verdict as established in crim­inal procedures by ORS 136.630. ORS 426.530 to 426.610. ORS 426.610 then provides that if the court finds a per­son to be sexually dangerous he shall be committed to the facility prescribed by the Board of Control for treatment. That part of ORS 426.610 (1) which has precipitated your question states:

"* * * Such commitment shall be for observation and report for a period of not less than 30 days nor more than 45 days. The superintendent shall appoint two quali­fied psychiatrists to make a personal exami­nation of the patient, based upon the facts presented in the special verdict * * * Each psychiatrist shall file with the court a writ­ten report of the examination, which shall include a statement of his conclusion as to whether the patient is a sexually dangerous person."

We call to your attention ORS 137.112 which provides for psychiatric exami­nations for persons convicted of a sexual offense. A person so convicted is or­dered taken to an institution designated by the Board of Control and the super­intendent of said institution is then re­quired to designate a qualified psychia­trist to conduct an examination. ORS 137.112 (5) provides:

"All costs connected with the examination, including the examination by the psychiatrist at the presentence hearing under ORS 137.114, shall be paid by the county in which such person was convicted."

It is clear under ORS 137.112 (5) that the Board of Control is authorized to charge the counties for psychiatric ex­aminations performed at state institu­tions pursuant to that provision. See Opinions of the Attorney General, 1958-1960, p. 22; 1956-1958, p. 261.

ORS 426.250 provides in part that: "Any physician employed by the judge to make an examination as to the mental con­dition of a person alleged to be mentally ill shall be allowed a fee * * *. The ex­penses of the examination * * * shall be paid by the county * * *."

ORS 426.200 provides for court com­mitment following emergency admission. Two staff physicians of the state hospital are directed to examine the person as to his mental condition. If a court commit­ment is made this provision specifically provides that the expenses of the ex­amination are paid by the county.

However, in the case of the psychi­atric examination under the sexually dangerous law the Act is silent as to which governmental body shall bear the expense.

In each of the above cited statutes in which there is a provision for payment by the county for the cost of psychiatric examination the subject is not com­mitted to the state hospital prior to the examination. But, under ORS 426.610, there has been a commitment. Such commitment, although confined to ob­servation and report and only transient in nature, "not less than 30 nor more than 45 days," is nonetheless a commit­ment.

It is a well accepted principle that the legislature is presumed to act with full knowledge of existing law and the facts. Opinions of the Attorney General, 1964-1966, p. 237. There can be no doubt that the legislature was well aware of the several instances in which it had pro­vided that the counties bear the cost of psychiatric examinations in the case of presentence and precommitment cases. Failure to specify for such payment by the counties in the present case can therefore not be considered as a legis­lative oversight. Such a construction is furthered by the fact that the present instance involves a commitment and the board is specially funded for the purpose of carrying out its functions un­der the 1963 law providing for treat­ment of sexually dangerous persons. ORS 426.670. The law in question was passed as chapter 467, Oregon Laws 1963, Sec. 18 thereof providing for an ap­propriation to the Board of Control out of the General Fund to carry out its functions under the Act.

An earlier version of the bill (House Bill 1129) did not provide for any appro­priation of money nor for a temporary commitment for purposes of observation and examination. Instead the bill pro­vided that the court, instead of the superintendent, order an examination by two qualified psychiatrists. The subse­quent change to a temporary commit­ment, examination at the state hospital, and appropriation of moneys, reveals the legislative intent that the cost was to be borne by the state hospital budget for this purpose and not by the coun­ties.

An additional factor worthy of men­tion is the fact that a county must find authority in the statutes for its action. A power not expressly or impliedly con­ferred upon the county is as plainly prohibited as though expressly forbid­den. Opinions of the Attorney General, 1962-1964, p. 4, at p. 5. As the county is given no express or implied authority to pay the state for the use of psychia­trists in examinations after temporary commitment it would appear to have no authority to do so.

Based on the foregoing it is our opin­ion that the Board of Control may not charge counties for psychiatric examina­tions made pursuant to ORS 426.610.

Your second question asks whether, if counties cannot be charged for such services, may charges be made under the Relatives' Responsibility Act, ORS 179.630, for temporary commitments.

ORS 179.610 et seq. contains the Rela­tives' Responsibility Act. ORS 179.610 (2)(a) defines a person at or in a state institution to include "a patient at a state institution for the mentally ill." Under ORS 426.610 and 426.670 sus­pected "sexually-dangerous persons" are committed to a state institution for "not less than 30 days nor more than 45 days." It is our opinion that the defini­tion in ORS 179.610 is clear and un­ambiguous and that a person temporar­ily committed under ORS 426.610 is "a patient at a state institution for the mentally ill" within the meaning of ORS 179.610 (2)(a). In arriving at this con­clusion we have not ignored ORS 426.510 which provides that a "sexually dan­gerous person" is "not insane" and ORS 426.340 which directs that the words "mentally diseased" are to be used in ORS chapter 426 in lieu of the word "in­sane." In other words the legislative intent has been broadly stated to include any person committed to a state insti­tution. Thus we are not required to pur­sue whether "care and maintenance of the mentally ill" encompasses care and maintenance of a "sexually dangerous person" as both are patients at state in­stitutions.

Having determined that a sexually dangerous person is "a person at a state institution" we turn to ORS 179.620 (1) and (2) which provide:

"(1) If a person at a state institution or a responsible relative of such person is pos­sessed of an estate or income sufficient so that he has the ability to pay the expenses of the care and maintenance of such person, the person at the state institution or the guardian or responsible relative of such per­son is required to reimburse the State of Oregon for the cost of the care and mainte­nance of such person during his stay at such state institution.

"(2) A person at a state institution, and his estate or responsible relatives, or both, as their respective responsibility may appear, are liable for the payment of the monthly charge fixed as provided in ORS 179.700 for care and maintenance of persons at such institution, according to their ability to pay determined as provided in ORS 179.610 to 179.770."

Under the above provisions it is our opinion that a person temporarily com­mitted to a state institution pursuant to ORS 426.610 falls within the coverage of the Relatives' Responsibility Act and such person, his estate or relatives may be assessed a monthly charge as fixed by ORS 179.700 (2). ORS 179.700 (2) provides, in part:

"**8 the yearly operating cost of in­stitutions for the care and maintenance of the mentally ill * * * shall be determined by the board in the manner prescribed in this subsection and in subsection (7) of this sec­tion. The board shall, as of June 30 each year, compute all the costs chargeable to the maintenance and operation of the state in­stitutions for the care of mentally ill * * *. In computing these costs there shall be in­cluded all net expenses of operating the in­stitutions (excluding the cost of operating out­patient clinics)." (Emphasis supplied) ORS 179.700 (7) provides in part that: "* * * in computing the yearly operating cost of each institution, the expenses of up­keep of buildings and grounds shall be in­cluded, but the cost of additional or replace­ment buildings and grounds and equipment shall be excluded."

The above quoted provisions provide that, in computing the cost of care at institutions for the mentally ill, all net expenses shall be included except the cost of outpatient clinics, additional or replacement buildings and grounds and equipment.

It is a rule of statutory construction that where a statute contains certain enumerated exceptions there is a strong presumption that no other exception is intended. In Re Buell's Estate, McKin-ley v. Allen et al., (1941) 167 Or. 295, 303, 117 P. (2d) 832; Opinions of the Attorney General, 1956-1958, p. 41.

Although the Act providing for tem­porary commitments under ORS 426.610 was not enacted until 1963 which was subsequent to the enactment of the ex­ceptions provided for under ORS 179.700 the 1965 legislature amended the latter statute but without changing the listed exceptions. Had the legislature intended that the cost of psychiatric examinations under ORS 426.610 not be considered as a net expense in computing costs un­der the Relatives' Responsibility Act it could have easily and briefly so stated. Not having done so it is our opinion, in answer to your second question, that the costs of psychiatric examinations un­der ORS 426.610 are expenses of the state institution, within the meaning of ORS 179.700, for the purpose of comput­ing monthly charges against patients, their estates and relatives.

ROBERT Y. THORNTON, Attorney General, By Walter L. Barrie, Assistant.

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