INCOMPETENT TO INCOMPETENT TO STAND TRIALSTAND TRIAL

ASSESSMENT AND TREATMENTASSESSMENT AND TREATMENTMunir A. Sewani, PhDMunir A. Sewani, PhD

FMHAC CONFERENCE, SEASIDE, FMHAC CONFERENCE, SEASIDE, CA 2007CA 2007

OverviewOverview

• DEFINING COMPETENCY TO STAND TRIAL

• CASE LAW

• CALIFORNIA STATUTE

• ASSESSMENT PROTOCOL

• TREATMENT TO RESTORE COMPETENCY TO STAND TRIAL

What is Competency to Stand What is Competency to Stand Trial?Trial?

• Roesch, Zapf, Golding and Skeem (2004) note that the practice to delay and/or suspend criminal proceedings until the issue of defendant’s competency to stand trial is resolved is based in English common law (Hale, 1736, cited in Silten & Tulis, 1977)

• Before we get to assessment and treatment/restoration of competency to stand trial, it is important to look at the concepts of competency to stand trial and various legal decisions that influence and impact both assessment and treatment of defendants found to be incompetent to stand trial.

COMPETENCY TESTCOMPETENCY TEST

• In the United States the standard for Competency to Stand Trial is based in Dusky v. United States (1960). The Supreme Court held:

• “Whether the defendant has: (1) sufficient present ability to consult with his attorney with a reasonable degree of rational understanding; and (2) a rational as well as factual understanding of proceedings against him”

• The Dusky decision does create a problem in defining and assessing competency.

• What is meant by “sufficient present ability”? and how does one define “has a rational as well as factual understanding”? (Roesch, Zapf, Golding, and Skeem)

• Over the years the ambiguity in Dusky has been cleared by increased knowledge of the law, court challenges, and an increase in forensic psychology practice.

• Yet most states do not require forensic evaluator training.

• Most forensic examiners are “occasional experts” (Grisso, 1987)

• Nevertheless, most states use Dusky standard with some variation in the wording. In California the statute is known as PC1368/1369, as follows:

• If, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant

• And having satisfied all other legal challenges to the issue of defendant’s Competency the court:

• 1369. A trial by court or jury of the question of mental competence shall proceed in the following order: (a) The court shall appoint a psychiatrist or licensed psychologist,

• and any other expert the court may deem appropriate, to examine the defendant. In any case where the defendant or the defendant's counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination there

• of. One of the psychiatrists or licensed psychologists may be named by the defense and one may be named by the prosecution.

• The examining psychiatrists or licensed psychologists shall evaluate the nature of the defendant's mental disorder,

• if any, the defendant's ability or inability to understand the nature of the criminal proceedings or assist counsel in the conduct of a defense in a rational manner as a result of a mental disorder and,

• if within the scope of their licenses and appropriate to their opinions, whether or not treatment with antipsychotic medication is medically appropriate for the defendant and whether antipsychotic medication is likely to restore the defendant to mental competence.

• If an examining psychologist is of the opinion that antipsychotic medication may be medically appropriate for the defendant and that the defendant should be evaluated by a psychiatrist to determine if antipsychotic medication is medically appropriate,

• the psychologist shall inform the court of this opinion and his or her recommendation as to whether a psychiatrist should examine the defendant.

• The examining psychiatrists or licensed psychologists shall also address the issues of whether the defendant has capacity to make decisions regarding antipsychotic medication and whether the defendant is a danger to self or others.

• If the defendant is examined by a psychiatrist and the psychiatrist forms an opinion as to whether or not treatment with antipsychotic medication is medically appropriate, the psychiatrist shall inform the court of his or her opinions as to the likely or potential side effects of the medication, the expected efficacy of the medication, and the possible alternative treatments.

ASSESSMENT FOR ASSESSMENT FOR COMPETENCYCOMPETENCY

• Researchers have argued that competence be assessed within the context in which it is being used.

• Golding and Roesch (1988) stated that the psychopathological criteria is only a part of a bigger question that must address, this defendant facing these charges given this evidence, with the unique characteristics between this attorney ant this defendant.

• The defendant is unable to rationally cooperate with the attorney or to understand the nature of the proceedings and their likely outcome.

• The importance of contextual competency has been well established.

• However, in Godinez v. Moran (1993), the United States Supreme Court held that the standard for various types of competency should be considered the same .i.e. competency to plead guilty, to waive counsel, to stand trial.

• The decision in Godinez has been criticized by legal scholars. The issue is not that the standards of various psycholegal competencies are higher, different or the same, but was the defendant assessed in respect to the certain issue?

• Hence, the assessment for competency to stand trial is complex and must be approached with knowledge of the psycholegal issues involved with a particular defendant.

• Roesch, Zapf, Golding, and Skeem,(2004): Stated that the most reasonable approach to the assessment of competency to stand trial is based on a functional evaluation of a defendant’s ability matched to the contextualized demands of the case.

• While assessment of the mental status is important, it is not sufficient as a method of evaluating competency. The mental status information must satisfy the demands of the legal case.

ASSESSMENT MEASURES FOR ASSESSMENT MEASURES FOR COMPETENCYCOMPETENCY

• The Competency Screening Test (developed by Lipsit, Lelos, and McGarry 1971) is a 22-item sentence completion instrument that helps determine if further extensive assessment for competency to stand trail maybe necessary.

• It takes approx. 25 minutes to complete. For an individual who has difficulty reading, the items can be read to them.

• Strengths of CST

• The CST does have some benefits and the examiner must be clear about the purpose of evaluation? Is it for screening or is it for comprehensive competency evaluation.

• Weakness of CST

• Conceptual constructs are not empirically related to competency.

• Scoring is questionable.

• The Competency to Stand Trial Assessment Instrument:

• This is a semi-structured interview and rating scale.

• It was developed as a companion to CST.

• Whereas CST is a screening instrument, the CIA is a full-scale complementary assessment tool.

• The CAI was developed by the Harvard Laboratory of Community Psychiatry project for the Center for Studies of Crime and Delinquency, funded by NIMH.

• CAI was developed from the review of appellate cases,

• legal literature, • actual pretrial competency hearings, and • interviews with the judges and attorneys.

• From the review of the data, the authors conceptualized competency to stand trial

• as the ability to cooperate with one’s attorney in one’s defense,

• an awareness and understanding of the nature and purpose of the proceedings, and

• an understanding of the consequences of the proceedings.

• The CAI addresses 13 functions that are relevant to factors addressing competency to stand trial.

• The 13 functions are conceptualized in the manual and three sample questions are provided for each function.

• The 13 functions are:

1. Appraisal of available legal defenses

2. Unmanageable behavior

3. Quality of relating to attorney

4. Planning of legal strategy, including guilty pleas to lesser charges where pertinent

5. Appraisal of role of persons involved in a trial

6. Understanding of court procedure

7. Appreciation of charges

8. Appreciation of range and nature of possible penalties

9. Appraisal of likely outcome

10.Capacity to disclose to attorney available pertinent facts surrounding the offense

11.Capacity to realistically challenge prosecution witness

12.Capacity to testify relevantly13.Self-defeating versus self-serving

motivation (legal sense)The items are rated on Likert scale from 1

(reflecting total lack of capacity to function) to 5 (reflecting no impairment, defendant can function adequately)

Strength and Weakness of CAIStrength and Weakness of CAI

• The CAI has been criticized for lacking empirical support.

• Nevertheless, the items show face validity which, increase attractiveness for attorneys and judges.

• The MacArthur Competence Assessment Tool-Criminal Adjudication (MacCAT-CA, Hoge, Bonnie, Poythress & Monahan, 1999)

• This is a 22-item structured interview for the pretrial assessment for competency.

• This test uses vignette format that can be scored objectively using standardized questions.

• Mac-CAT-CA measures three competence related abilities:

1. Understanding (capacity for factual understanding of the legal system and the adjudication process)

2. Reasoning (ability to distinguish more relevant from less relevant factual information and ability to reason about two legal options, guilty or not guilty)

• 3. Appreciation (capacity to understand his or her own legal situation and circumstances).

• The authors have emphasized that this instrument must be used as tool as opposed to a test of competence. The results must be interpreted in context of other relevant and specific data about the defendant’s case.

• The Interdisciplinary Fitness Interview (IFI) Requires more than one evaluator.

• The Fitness Interview Test (FIT), is based on Criminal Code of Canada.

• The Georgia Court Competency Test, now called, Mississippi State Hospital Revision. (maybe more relevant for defendants undergoing inpatient treatment for competency)

• There are competency tests for special populations such as juveniles and individuals with mental retardation.

• Malingering must be considered, evaluated and ruled out in legal issues during assessment.

• Structured Inventory of Malingered Symptomatology (SIMS)

• Structured Interview of Reported Symptoms (SIRS)

• Miller Forensic Assessment of Symptoms Test (M-FAST)

• Legal process after the individual is adjudicated as Incompetent to Stand Trial (IST).

• In California, the process is defined in PC1370.• 1370. (a) (1) (A) If the defendant is found mentally competent, the

criminal process shall resume, the trial on the offense charged shall proceed, and judgment may be pronounced. (B) If the defendant is found mentally incompetent, the trial or judgment shall be suspended until the person becomes mentally competent. (i) In the meantime, the court shall order that the mentally incompetent defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, or to any other available public or private treatment facility approved by the community program director that will promote the defendant's speedy restoration to mental competence, or placed on outpatient status as specified in Section 1600.

• (c) (1) At the end of three years from the date of commitment or a period of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged in the information, indictment, or misdemeanor complaint, whichever is shorter, a defendant who has not recovered mental competence shall be returned to the committing court. The court shall notify the community program director or a designee of the return and of any resulting court orders.

• The three-year term for IST is a result of the case law, Jackson v. Indiana (1972), The U.S. Supreme Court ruled that a defendant cannot be held indefinitely for IST, but only for a “reasonable period of time.”

• The three-year term applies to both inpatient and outpatient treatment for restoration of competency.

• Pursuant to PC1601 certain PC categorizes are not eligible for outpatient consideration.

• Any judicially committed individual charged with, convicted of, or found Not Guilty by Reason of Insanity of the following offenses will not be eligible for outpatient treatment and supervision services until he/she has been confined in a state hospital or other inpatient treatment facility for a minimum period of 180 days:

• * Murder;• * Mayhem;• * PC 207 - Kidnapping, in which the victim suffers intentionally

inflicted great bodily injury;• * PC 209 - Kidnapping for ransom or to commit robbery, in which

the victim suffers intentionally inflicted great bodily injury;• *

• PC 220 - Assault to commit rape, in which the victim suffers great bodily injury;

• * PC 261.2 - Rape by force;• * PC 261.3 - Rape by threat;• * PC 288 - Child molestation;• * PC 451(a) or (b) - Arson;• * PC 459 - Burglary, first degree;

* Assault with intent to commit murder;

• Robbery with a deadly or dangerous weapon, or in which the victim suffers great bodily injury;

• * PC 12303.1 - Carrying/placing an explosive device (in a vehicle);

• * PC 12303.2 - Possession of a destructive device in a public place;

• * PC 12303.3 - Wrongful possession of an explosive device with intent to injure or intimidate;

• PC 12308 - Use of a destructive device with intent to commit murder;

• * PC 12309 - Use of a destructive device causing great bodily injury;

• * PC 12310 - Use of a destructive device causing death, mayhem, or great bodily injury; or

• Any felony involving death, great bodily injury, or an act which poses a serious threat of bodily harm to another

• In California a misdemeanant IST is referred to County Mental Health and felony IST are referred to State DMH (Conditional Release Program) for treatment disposition, i.e. restoration of competency.

• A large percentage of felony ISTs in California are referred to State Mental Health Hospitals for treatment.

• The literature shows that most forensic hospitals rely on both pharmacological and psychological interventions to address psychiatric symptoms that affect competency.

• Psychotropic medications have been used for treatment of mental and emotional symptoms/behaviors, including, violence, aggression, self-injurious and suicidal behavior.

Psychological TreatmentPsychological Treatment

• Includes, education about court procedures, social skills, assertion training, milieu therapy, individual therapy, group therapy and activity therapy. At times other forms of therapy such as cognitive behavior therapy, reality therapy, and vocation training have been used by inpatient facilities.

Competency Training in Outpatient Competency Training in Outpatient Setting Setting

• Not much is written in the literature regarding treating IST in the outpatient setting.

• There is limited information available about misdemeanant IST (CA) in county mental health system.

Inpatient treatment of ISTInpatient treatment of IST

• Psychiatric Symptom Management

• Psychotropic Medications

• Psychosocial Support, Skills Development and Education

• Court and Legal Procedures

• Mock Court Groups

Outpatient Treatment of ISTOutpatient Treatment of IST

• Outpatient IST Treatment Referral• Treatment Components• Living Arrangement• Psychiatric Symptom Management• Psychosocial Support• Skill Acquisition• Court and Legal Education• Psychological Testing• Review of Police Reports and Alienist Reports

• Case Review• DR. C• A 72 to year old professional found IST for medi-

cal fraud. Suffered from a medical condition that made it difficult for him to modulate his emotions and impulsiveness when under stress. (Competency as Dr.)

• C.P. Malingering• J. A. Refused NGI and took a plea.• M. S.

• CONREP Outcome Data:

• No Recent Information

• Last Report in 2000

• ISTs Generally had higher failure rates in outpatient treatment compared to NGI.