Fitness to proceed refers to the ability of a defendant in a criminal case to understand the charges and the process and to help his or her attorney in the defense.  The defendant can be tried only if he or she is able to understand and assist the attorney.  Fitness to proceed is sometimes called “aid and assist”.

At any time before or during a trial in a criminal case, a judge may decide a person is mentally incapacitated and unable to proceed with the trial.  The judge will find a person lacking fitness to proceed to trial if the person has a mental disease or defect and is unable to:

1.      Understand the nature of the proceeding against him or her; or

2.      Assist (help) and cooperate with his or her attorney; or

3.      Participate in his or her own defense.

            ORS 161.360.

If a person’s fitness to proceed is in doubt, the judge can order an evaluation.  This evaluation can be in an outpatient setting or in a hospital.  If the evaluation is done in the hospital, it must be done in 30 days.

After the evaluation, the judge holds a hearing to see if the person is fit to proceed.  If the person is fit to proceed, the criminal case will continue.  If the person is not fit to proceed, the criminal charges are suspended.  The judge can let the person stay in the community with supervision or commit the person to the hospital.

If a person is in the hospital, the superintendent has to tell the judge, within 90 days, if the person is fit to proceed. If the person is not fit to proceed, the superintendent has to tell the judge whether there is a substantial probability that, in the foreseeable future, he or she will be fit to proceed to trial.  ORS 161.370(4).

If the hospital says there is not a substantial probability the person will be fit within the foreseeable future, the judge will hold a hearing. If the judge agrees, then the criminal case must be dismissed and the person must be discharged from the hospital or committed under the civil commitment statutes.

If the hospital says there is a substantial probability that the person will be fit within the foreseeable future, then the person stays in the hospital.  The hospital has to report to the judge on the person’s condition every six months.

A person can be kept in the hospital for three years or the length of the sentence that could have been imposed, whichever is shorter.

If the three years ends and the person is still mentally ill and dangerous to self or others or unable to care for basic needs, then the hospital can try to civilly commit the person.