(1) A recommendation provided by a certified evaluator, pursuant to ORS § 161.355 to 161.371, that a defendant requires a hospital level of care due to the acuity of the defendant’s symptoms must be based upon the defendant’s current diagnosis and symptomology, the defendant’s current ability to engage in treatment, present safety concerns relating to the defendant and any other pertinent information known to the evaluator. If the defendant is in a placement in a facility, the evaluator may defer to the treatment provider’s recommendation regarding whether a hospital level of care is needed.

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(2) A determination by a community mental health program director, or the director’s designee, pursuant to ORS § 161.355 to 161.371, that appropriate community restoration services are not present and available in the community must include information concerning the specific services necessary to safely allow the defendant to gain or regain fitness to proceed in the community and must specify the necessary services that are not present and available in the community.

(3)(a) Reports resulting from examinations performed by a certified evaluator, and documents containing the recommendations of or resulting from consultations with a community mental health program director or the director’s designee, prepared under ORS § 161.355 to 161.371, and any document submitted to the court by a state mental hospital related to the proceedings under ORS § 161.355 to 161.371, 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, state mental hospital 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 or document described in paragraph (a) of this subsection 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 or document described in paragraph (a) of this subsection with witnesses or victims as otherwise permitted by law.

(4) The court shall ensure that an order entered under ORS § 161.355 to 161.371 is provided, by the end of the next judicial day, to any entity ordered to provide restoration services.

(5) Unless the court orders otherwise or either party objects, a defendant committed to a state mental hospital or other facility, or a certified evaluator or other expert witness, may attend hearings held under ORS § 161.355 to 161.371 via simultaneous electronic transmission. [2021 c.395 § 3]