Petitioner, charged with murder, gave notice that he intended to invoke the defense of having acted under extreme emotional disturbance and to introduce expert testimony for this defense. ORS 163.115(1)(a), íeS.ISSU).1 The prosecution obtained an order from the circuit court which directed the defendant (petitioner here) to submit to an examination by a named psychiatrist on behalf of the state. This order originally included a provision directing the defendant to cooperate in all psychiatric tests and to answer all questions asked by the state’s psychiatrist except questions concerning his conduct at or immediately near the time of the commission of the offense. This exception corresponded to the law as set forth in this court’s decisions from Shepard v. Bowe, 250 Or 288, 442 P2d 238 (1968) to State ex rel Johnson v. Woodrich, 279 Or 31, 566 P2d 859 (1977).
Defendant by means of an earlier petition for writ of mandamus in this court challenged certain provisions of the circuit court’s order concerning the role of defendant’s counsel in the psychiatric examination. We directed the circuit court to modify those provisions of the order. State ex rel Ott v. Cushing, 289 Or 705, 617 P2d 610 (1980).
After examining the defendant under the amended order, however, the state’s psychiatrist reported to the prosecutor that he could not render an opinion unless the *358defendant answered questions concerning his conduct, intentions, feelings, and thoughts at the time of the alleged offense, the subjects that were excluded by the court’s order. The court thereupon further amended its order so as to strike this limitation on the psychiatrist’s inquiry. Instead, the order provided:
“(3) IT IS FURTHER ORDERED that Defendant shall answer all questions put to him by Dr. Thompson including questions concerning Defendant’s acts, conduct, feelings, intentions and thoughts at or near the time of the alleged comission of the offense;...”
Defendant petitioned for an alternative writ of mandamus, which we allowed, and the state moved to dismiss.
The new paragraph (3) of the circuit court’s order concededly was contrary to the law as stated in this court’s decisions cited above. The state, on behalf of the circuit judge as defendant in this mandamus proceeding, argues against the law set forth in those decisions. It asks the court to hold that a judicial order obliging a defendant to explain his acts, thoughts, and feelings during the course of events that is charged against him as a crime nevertheless does not compel him to testify against himself, contrary to Oregon Constitution, Art I, § 12, or to be a witness against himself, contrary to the federal fifth amendment. We decline to do so.
The rule of Shepard v. Bowe, supra, has not maintained unanimous support in this court. See State ex rel Johnson v. Richardson, 276 Or 325, 331, 327-329, 555 P2d 202, 205 (1976) (Howell, J., concurring); State ex rel Johnson v. Woodrich, supra, 279 Or at 38, 566 P2d 562 (1977) (Linde, J., specially concurring) and id. at 41, 566 P2d 863 (Howell, J., dissenting); State ex rel Ott v. Cushing, supra, 289 Or at 715, 617 P2d at 616 (Tanzer, J., concurring). It has, however, survived as the law in this state. Modifications or alternatives that have been suggested in individual opinions have not been pursued by the Legislative Assembly. Even if we were inclined further to elaborate on or change the rule, we would not think it appropriate to do so when in the very case before us, in affirming another part of the circuit court’s order, we asserted that the rule' of Shepard v. Bowe “represented the proper balance between protecting a defendant from self-incrimination and ensuring that the state has sufficient information from which to *359properly diagnose defendant’s mental condition.” 289 Or at 702, 617 P2d at 615. This did not invite the circuit court to contravene that rule.
The state’s motion to dismiss the petition for mandamus is denied; peremptory writ to issue.
ORS 163.115:
“(1) Except as provided in ORS 163.118 and 163.125, criminal homicide constitutes murder when:
“(a) It is committed intentionally by a person who is not under the influence of an extreme emotional disturbance;...”
ORS 163.135:
“(1) The defendant shall not introduce in his case in chief expert testimony regarding extreme mental or emotional disturbance under ORS 163.115 unless he gives notice of his intent to do so.”
“(4) After the defendant files notice as provided in this section, the state shall have the right to have at least one psychiatrist of its selection examine the defendant in the same manner and subject to the same provisions as provided in ORS 161.315.”