REPORT WRITING FOR THE DIFFICULT / NON-COOPERATIVE CLIENT

Patricia A. Zapf, PhD Professor, John Jay College of Criminal Justice, CUNY

Director of Education & Training, CONCEPT President, American Psychology-Law Society (AP-LS)

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PROFESSIONAL TRAINING

Importance of the Forensic Report •  Documents important information

– Professional record documenting an evaluation took place – Finding and limitations of the data, data sources, etc

•  Forces the evaluator to impose organization on the data gathered – Allows the clinician to prepare and rehearse the essence of

any testimony to be given (direct, cross) •  Forces the evaluator to commit to an opinion •  Permits disposition without formal proceedings

– Well written report allows for stipulation by the court

10 Common Errors / Shortcomings •  Opinions without sufficient explanations (53%) •  Forensic purpose unclear (53%) •  Organization problems (36%) •  Irrelevant data or opinions (31%) •  Failure to consider alternative hypotheses (30%) •  Inadequate data (28%) •  Data and interpretation mixed (26%) •  Over-reliance on single source of data (22%) •  Language problems (19%) •  Improper test uses (15%)

What About the Uncooperative Client?

SGFP: Guideline 6.03.02 Guideline 6.03.02: Persons Ordered or Mandated to Undergo Examination or Treatment If the examinee is ordered by the court to participate, the forensic practitioner can conduct the examination over the objection, and without the consent, of the examinee (EPPCC Standards 3.10, 9.03). If the examinee declines to proceed after being notified of the nature and purpose of the forensic examination, the forensic practitioner may consider a variety of options including postponing the examination, advising the examinee to contact his or her attorney, and notifying the retaining party about the examinee’s unwillingness to proceed.

SGFP: Guideline 9.03 Guideline 9.03: Opinions Regarding Persons Not Examined Forensic practitioners recognize their obligations to only provide written or oral evidence about the psychological characteristics of particular individuals when they have sufficient information or data to form an adequate foundation for those opinions or to substantiate their findings (EPPCC Standard 9.01). Forensic practitioners seek to make reasonable efforts to obtain such information or data, and they document their efforts to obtain it. When it is not possible or feasible to examine individuals about whom they are offering an opinion, forensic practitioners strive to make clear the impact of such limitations on the reliability and validity of their professional products, opinions, or testimony.

EPPCC: Standard 9.01 (a)

9.01 Bases for Assessments (a) Psychologists base the opinions contained in their recommendations, reports, and diagnostic or evaluative statements, including forensic testimony, on information and techniques sufficient to substantiate their findings. (See also Standard 2.04, Bases for Scientific and Professional Judgments ~ established scientific and professional knowledge of discipline)

EPPCC: Standard 9.01 (b)

(b) Except as noted in 9.01c, psychologists provide opinions of the psychological characteristics of individuals only after they have conducted an examination of the individuals adequate to support their statements or conclusions. When, despite reasonable efforts, such an examination is not practical, psychologists document the efforts they made and the result of those efforts, clarify the probable impact of their limited information on the reliability and validity of their opinions, and appropriately limit the nature and extent of their conclusions or recommendations.

Multiple, Converging Sources of Data

•  Self-report of D is one source of data – Typically place less weight on self-reports than other sources – Goal is to corroborate all relevant aspects of self-report

•  When D refuses to provide self-report data – Want to ensure that you use >1 other data source – Collateral interviews become an important data source – Attribution of data to source always important – Need to be clear about limits of your opinions

Initial Evaluation (Outpatient) •  Defense attorney becomes important data source •  Engage the D in discussion regarding his/her refusal

– This gives important information regarding ability to think clearly, communicate, process of reasoning, whether any signs of mental disorder are apparent, logical thought processes

–  Indicate to D that this is a court-ordered evaluation, meaning that you will need to complete it with/without an interview

– Explain data sources that you will consult & that D will have no opportunity to “set the record straight” if no interview

– Attempt to determine potential collateral interviewees (important)

Re-Evaluation after “Restoration”

•  Observations become a very important data source •  Collateral interviews with treatment providers important •  Collateral interviews with those who interact with D

– Phone records should indicate who D has called – Unit staff who are not treatment providers are usually key – Want to ascertain comparisons in functioning/presentation across

time (initial admission, current) – Rely upon clear, behavior-based observations; careful about

assumptions or others’ opinions/conclusions (get the bases) – Clinical notes & chronology become very important

Report Writing

•  Notification “Please note that I did not interview Mr. Zuckerberg. The information provided in this report was collated from file review of various sources (denoted throughout). Please also note that my conclusions are limited by the fact that I did not interview Mr. Zuckerberg. Should the opportunity to interview Mr. Zuckerberg arise, I would be happy to provide additional details and modify the opinions presented in this report accordingly.

Report Writing •  Summary and Conclusions “The opinions included in this report are based solely on the review of all sources documented on the first and second pages of this report and not on an interview with the defendant. Any forensic evaluation is only as good as the information on which it is based. In this case, missing information may adversely affect the reliability of any findings or opinions. If new or potentially relevant information comes to light, please contact me so that I can make a determination regarding whether this new information would lead to a substantive changes in my findings or opinions on this matter.”

Report Writing

•  Present a comprehensive summary of the D’s progress according to clinical notes (from treatment providers), interviews with relevant collaterals, and observations of others (using chronology as a guide) – When first admitted, presented in this way; medications, effect – One month in, these changes were noted, treatment providers

indicated xxx (include dates and provider names and quotes from notes), reaction to meds, progress in restoration classes, etc for various points in time, quotes from clinical notes re: progress

– Current functioning as indicated by observations, clinical notes, and collateral interviews with relevant others

Opinions

•  Consider tying your opinion to research data – Most defendants are restored to competence within 6 months

(~75%); Vast majority are restored with 1 year (>90%) •  Zapf, 2013; National Judicial College Best Practices Model; Pirelli & Zapf, meta

forthcoming

– Most difficult Ds to restore are those with MR/ID and those with lengthy hx of multiple hospitalizations for chronic acute MI (Mossman, 2007)

•  Mossman found that “lower probability of restoration was associated with having a misdemeanor charge, longer cumulative length of stay, older age, and diagnoses of mental retardation, schizophrenia, and schizoaffective disorder.”

ASSESSMENT & TREATMENT FOR THE INTELLECTUALLY DISABLED PATIENT

FOUND NOT COMPETENT

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PROFESSIONAL TRAINING

Assessment of ID (MR)

•  Intellectual deficits & adaptive functioning deficits – DSM-5 did away with the hard IQ score delineations –  “With ongoing support, the adaptive deficits limit functioning in

one or more activities of daily life, such as communication, social participation, and independent living across multiple environments, such as home, school, work, and community (DSM-5, p. 33)

– Communication, self-care, home living, social skills, community use, self-direction, health & safety, functional academics, leisure, work

•  Those who function in mild range often have social (credulity & gullibility) and conceptual deficits (reading & language); tend to be best (relative) at practical skills

Characteristics of Individuals with ID

•  Cognitive rigidity •  Problems with attention •  Slow information processing •  Difficulty planning and implementing complex behavior •  Significant difficulty learning abstract concepts and skills •  Heightened motivation for social reinforcement •  Low expectation of success and failure to to take initiative •  Passive learning style and outerdirectedness

–  More likely to learn by imitating others –  More likely to rely on cues from others

Mild Severity

•  “In adults, abstract thinking, executive function (i.e., planning, strategizing, priority setting, and cognitive flexibility), and short-term memory, as well as functional use of academic skills are impaired. There is a somewhat concrete approach to problems and solutions compared to age-mates….Individuals generally need support to make health care decisions and legal decisions” (p. 34)

Moderate Severity

•  “For adults, academic skill development is typically at an elementary level, and support is required for all use of academic skills in work and personal life. Ongoing assistance on a daily basis is needed to complete conceptual tasks of day-to-day life, and others may take over these responsibilities fully for the individual. Social judgment and decision-making abilities are limited, and caretakers must assist the person with life decisions. Spoken language is typically a primary tool for social communication but is much less complex than that of peers.” (p. 35)

A Note about Language Impairments

•  Language impairments can cause competence-related deficits (expressive, receptive, pragmatic, narratives)

•  Forgetting instructions •  Confusion with non-literal language •  Talking a lot but saying little •  Not asking questions •  Not answering questions •  Seem “difficult”

Evaluating CST in Defendants w/ ID •  Intellectual, academic, & adaptive functioning relevant •  Expressive and receptive language are relevant •  Despite the important influence of D’s cognitive abilities in

determining CST, evaluators attend to these capacities much less frequently than other factors, such as psychopathology

•  D’s with significant cognitive limitations typically possess characteristics that do not raise concerns about their CST –  frequently compliant & cooperative and often pretend to understand the

proceedings •  Martell (1992): clinicians consistently assess symptoms of

psychosis but frequently fail to specifically assess neuropsychological and cognitive deficits

Common Deficits in Defendants with ID

•  Increased deficits in capacities for communicating with their attorneys and attending to necessary information about their case due to limited expressive abilities and attentional difficulties

•  Difficulty with memory •  Impulsive and impaired decision-making •  Lack of self-direction •  Deficits in executive functioning •  Difficulty understanding and responding appropriately in social

situations (limitations in self-awareness) •  Heightened suggestibility and compliance (desire to please) •  Willingness to acquiesce and accept blame •  Many similarities with the literature on juveniles

Implications of Deficits for CST Evaluations

•  Lack requisite capacities to determine the appropriate information to convey to their attorney

•  May not fully and accurately understand nature and gravity of the charge(s)

•  May not be able to engage in logical reasoning about and weighting of options in decision making

•  May be at higher risk for being disruptive in the courtroom due to attentional difficulties

Bottom Line for CST Evaluation

•  Collateral and third-party information sources may be even more important in CST evaluation of individuals with ID

•  Relationship between functional abilities (e.g., memory for the circumstances of the events, expressive abilities to communicate one’s ideas about the case with one’s attorney) and psycholegal abilities (e.g., rational understanding of the possible sentencing ranges for one’s specific charges, decisionmaking ability about plea options) needs to be delineated

Assessment Issues •  Third-party informants for adaptive functioning are key

– Need solid info on community functioning – Remember: structured environments make functioning easier – Self-reports should never be used as sole basis of assessment

•  Actual performance is what matters (adaptive functioning) – Not knowledge of a skill or estimated potential to perform a skill

•  Clinical interviews should employ appropriate questioning strategies – Strong tendency for acquiescence and strong desire to “pass” – Avoid leading or suggestive questions

Assessment Best Practices

•  Use a standardized adaptive behavior assessment (norms) •  Choose informant who can address community behavior over a

period of time (including time of alleged crime) •  Interviewing multiple informants enhances validity •  Information from adaptive skill assessments should be

supplemented with additional direct measures of functioning •  Academic and language skills

•  Using information from records regarding previous functioning (conceptual, social, practical skill) can enhance testing validity

FAIs

•  Use of FAIs for ID requires caution •  Issues with the CAST*MR •  MacCAT-CA gives normative info regarding how D

compares to normative sample (non-ID); useful for tracking progress through attainment efforts

•  Adapt semistructured interviews as if you were going to use to evaluate a child: short sentences; mono- v multiple-syllabic words; multiple, short sessions; asking for explanations in their own words (esp. when parroting)

The Problem of Assessing Malingering •  No standardized tests for assessing malingering of ID •  MR/ID individuals not included in norming samples •  Affirmative response bias (response set) of ID individuals

means that they score higher; over-endorse; inflation •  Tests for malingered memory impairment do not include a

means of teasing apart malingering from genuine memory impairment in ID/MR

•  Interview: gaze aversion, less assertive, longer latency of responses, reticence, speech errors, higher pitched speech, circumstantiality or vagueness, prolonged or inappropriate smiling, distractibility (ID/MR and malingerers)

Report Writing

•  Educational function of reports •  Conditional statements in reports •  Prescriptive remediation •  Specifically outline the deficits that are noted in

interview (so these can be used to develop treatment plan and to guide re-assessment after restoration)

•  Use clear language about the best ways to communicate most optimally with the defendant

Sample Paragraphs

Relevant Background Information Mr. Zulu is an unreliable historian as he has difficulty remembering remote events and is often unable to indicate the dates or timeframes for events. In addition, he is limited cognitively, which presents as an overly simplistic, concrete way of thinking that results in vague statements without the ability to elaborate on information in a meaningful way. The following is an account of his background and history that was provided by Mr. Zulu in interview and corroborated by third-party information sources and an interview with his sister, Ms. Tammy Zulu-Zen, and mother, Mrs. Emily Zulu.

Mr. Zulu demonstrated a very basic understanding of the possible pleas (Guilty, Not Guilty, and NGRI), although with some inaccuracies. He indicated that pleading not guilty means, “they didn’t do it,” and pleading guilty means “they’re saying you did it” [who is saying?] “the judge.” Mr. Zulu’s responses in this domain indicate that he is able to regurgitate information that is fed to him through educational attempts but that he really does not have a clear understanding of what the information means. For example, when asked about the rights that one gives up when they plead guilty (content that has been covered in his competency education classes), Mr. Zulu replied, “all of them” [What are they?] “You just say you did it” [Do you give up any rights?] “Yeah, but I don't remember what they are.” I then provided education indicating that two of the rights would be the right to a trial and the right to confront your accusers. When asked about this 20 minutes later he replied, “I don't remember the right but I think all of them.” The next day this same inquiry was made to which he replied, “all of them” [What are they?] “The right where you say you didn’t do it…to face your accusers or something like that.” Regurgitated responses without the ability to further elaborate are common among individuals with intellectual impairments.

Impact of Intellectual Disability on Competence-Related Abilities: A couple of notes about the impact of intellectual disability (or mental retardation) on competence-related abilities are relevant for Mr. Zulu’s case. Many individuals with intellectual disability are not identified in the criminal justice system as these individuals tend to present with a “cloak of competence,” meaning that they will often pretend that they understand information when they do not and tend to have an acquiescent style wherein they indicate agreement with what others are telling them, even when they do not truly understand. In addition, these individuals often attempt to provide answers that they believe are being solicited by others, regardless of whether the response is accurate or not. Individuals with intellectual disabilities tend to be highly suggestible and will respond to the manner in which questions are asked so it is important to ask the same question more than once to gauge the consistency of the response. It can be easy to manipulate these individuals, whether one means to or not. Thus, it is important to use simple, short sentences, to explain abstract concepts using examples, and to provide visual or other perceptual cues when describing complex concepts. Mr. Zulu is an individual who can be relatively easily manipulated simply by the way in which a question is asked. If his tentative response is met with a nod or other nonverbal indictor of accuracy, he will stop at that response. If, however, the response is met with an eyebrow raise or a confused look, he will change his response or try another response. This is common among individuals with intellectual disabilities as these individuals often attempt to use verbal (tone of speech, use of intonation) and nonverbal cues (body language) to determine what is being asked of them. It will be important to use strategies such as asking questions in different ways, asking him to explain what something means, and asking him to provide more information to clarify Mr. Zulu’s understanding of information and concepts.

The literature on restoration of competence in individuals with intellectual disabilities indicates that this group is one of the most difficult to restore and that restoration efforts with this group often take upwards of 2 years. Of course, the level of competence required to proceed is determined by the context of the case and the abilities that will be required of the defendant. Mr. Zulu was previously found incompetent on charges of Unlawful Use of a Weapon and was subsequently restored to a level of competence appropriate to proceed on those charges; restoration efforts took approximately 7 months. Current restoration efforts have been ongoing for approximately 10 months and Mr. Zulu appears to have made some advances in terms of his factual understanding and appreciation of his role as a defendant during that time. He does, however, still display significant limitations in terms of his ability to factually understand some of the more nuanced information regarding the legal process, the plea bargain process, and the appeal process. I would expect that, with further education and training, he might make further gains in factual understanding. His ability to elaborate beyond simplistic explanations, however, is unlikely to improve as this appears to be a deficit caused by his intellectual limitations, which are not expected to improve. In terms of his ability to assist counsel and to engage in a rational decision-making process, he is unlikely to attain a level of competence that would allow him to fully participate in his defense. These deficits appear to be caused by both his limited intellectual ability as well as the symptoms of Schizophrenia, which appear to have improved to a point where he is functioning at his best since 2008. Given the history and course of his mental illness (Schizophrenia) I would not expect him to gain further improvements in his mental state.

Tracking Progress in Restoration/Attainment

•  Assessment instruments present a nice format for tracking an incompetent D’s progress toward attainment

•  CAST*MR – MC format allows for “scoring” a D on multiple occasions

•  MacCAT-CA – Standardized admin and scoring allow for tracking progress

Competency Restoration

•  75-90% of incompetent individuals are restored within 6 months – 1 year

•  Medication is the single most common form of treatment for restoration

•  Responsiveness to psychotropic medications likely has a large impact on restoration

•  Clinical factors predictive of poor treatment outcome – earlier illness onset, number of psychotic episodes, and increased duration of untreated psychosis – are also likely related to poor restoration success

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Reduced Success of Restoration

•  Mossman (2007): 2 types of Ds that had well below average probabilities of being restored –  (a) chronically psychotic defendants with histories of lengthy

inpatient hospitalizations, and –  (b) defendants whose incompetence stemmed from an

irremediable cognitive disorders such as mental retardation

•  Prior state inpatient hospitalization and increased age have also demonstrated a relation to decreased restoration success

Predicting Successful Restoration •  Morris & DeYoung (2012) - predictive utility of three primary

factors for determining who would regain competency at 3- and 6-month intervals –  behavior and outlook, factual understanding, rational assistance

•  Factual understanding scores (OR=35.2) and rational assistance scores (OR=169.2) predicted who would be restored

•  Rational assistance items were the best at predicting a negative outcome while the basic behavior and outlook items fared the worst (at both 3- and 6-months)

•  When predicting the probability of restoration at six months, a previous hospitalization significantly decreased the probability of restoration and a substance use diagnosis significantly increased the probability of restoration

Meta Analysis

•  Pirelli & Zapf (in progress) Meta Analysis – 51 “restoration” studies published between 1975-2013 – Very little research in this area; mostly descriptive – Only 2 studies examined pre-/post-restoration – Overall restoration base rate of 81% (> 13,000 Ds); M = 286

days

Restoration Data for MR/ID

•  Most difficult group to restore •  20-33% restored •  Takes upwards of 2 years •  Resource-intensive •  Many never attain competence

Restoration Group Formats

•  Education •  Anxiety reduction •  Guest lectures •  Mock trials •  Video modules •  Current legal events •  Post-restoration module

Training to Attainment v. Restoration

•  Repetition is key •  Using visuals paired with language is helpful •  Using aids to provide context is helpful •  Prescriptive remediation

– Utilize these that were presented in report in training to determine how well they work with the particular D

•  Generalization strategies to allow for applying information to different contexts – Watching legally-oriented TV shows or movies; applying class

information to the context provided in the show

Restoration of Ds with Intellectual Deficits

•  Noffsinger (2001) – Restoration Guidelines •  NJC Best Practices Model (great resources & manuals) •  AAFP (2007) – XII. Restoration of CST

– Additional educational time –  Increased one-on-one instruction – Simplified terminology

Slater Method – Rhode Island

•  Wall & Christopher (2012) | Wall, Krupp, & Guilmette (2003) •  5-module Training Program

– Purpose of training, review of charges, pleas, potential consequences

– Courtroom personnel – Courtroom proceedings, trial, and plea bargaining – Communicating with attorney, giving testimony, & assisting – Tolerating the stress of the proceedings

Slater Method

•  Focused on competency to assist & decisional competence •  Uses a rational decision-making framework •  Phase I – Knowledge-based training (factual understanding) •  Phase II – Understanding-based training (appreciation) •  Phase II builds upon and elaborates Phase I information and

allows the opportunity to consider personal context •  Repetition is key; each module covered > 3 times •  Use photographs and other visual cues •  Use tests and scores to move levels

Slater Efficacy

•  Appears to be a useful method of competency restoration / attainment for adults with intellectual deficits

•  Significantly more Ds who underwent Slater treatment were restored (2 year period)

•  Lengthy restoration process; not all can be restored •  Resource-intensive program

Slater Process

•  Phase I: Knowledge-based training – Akin to Factual Understanding component of competence –  Information is presented multiple times – D asked to re-phrase; asked what has been taught

•  Phase II: Understanding-based training – Akin to Rational Understanding component of competence – Active process of making sure D understands the information and is

not simply parroting •  Need to be sure to incorporate “assistance” and “rational

decision-making” components as these are not emphasized

Tracking Progress towards Attainment

•  FAIs can be used to track a D’s progress over time – MacCAT-CA – CAST*MR

•  Standardized assessment of domains of inquiry – Allows for tracking progress over time – FIT-R / IFI

•  Areas of deficit should direct attainment efforts

Learning Literature •  Break down learning tasks into small steps that build on

each other – Progressive, step-wise learning approach

•  Modify the teaching approach to be hands-on •  Concrete, observed information is best

•  Use visual aids (pictures, charts, graphs) •  Use hand signals to communicate

–  slow down information (with attorney); cue important information •  Provide direct and immediate feedback •  Use lots of reinforcement and minimize anxiety of D

Conditional Opinions are Key

•  May not arrive at a clear opinion on the issue of competency for these individuals

•  Likely will need to present conditional statements regarding how well D can manage various tasks/abilities

•  Present this as “if…, then…” statements in report and specify prescriptive remediation to be used by attorney, judge, and relevant others

Prescriptive Remediation

•  Literature on learning provides useful information •  Visuals and contextual cues

– Hand signs, images, stories (relevant to own case) •  Impulsivity

–  “Think about the question a few minutes before answering” •  Perseveration

–  “Disregard the previous question and focus solely on most recent” •  Answering prior to fully understanding

–  “First, repeat the question back to examiner”

Prescriptive Remediation

•  Use simple language •  Speak slowly, clearly, and calmly •  Use concrete terms and ideas •  Avoid questions that give part of the answer (leading) •  Repeat questions from a slightly different perspective •  Proceed slowly and give praise and encouragement •  Avoid frustrating questions about time, complex

sequences, or reasons for behavior

Prescriptive Remediation •  Do not show frustration •  Highlight important information to improve memory/retention •  Repeat important information •  Cut down on distractions •  Give direct, explicit feedback when D does not communicate

effectively or responds inappropriately to questions (no, that’s not right…)

•  Be careful not to nod or give other nonverbal cues •  Take short breaks; multiple, shorter sessions better than lengthy

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PROFESSIONAL TRAINING