Title: Forensic Services: Incompetent, but Not Restorable and Incompetent but Not Committable: challenges and opportunities
1Forensic Services Incompetent, but Not
Restorable and Incompetent but Not Committable
challenges and opportunities
- Debra A. Pinals, M.D.
- Assistant Commissioner, Forensic Services
- Massachusetts Dept of Mental Health
- Associate Professor of Psychiatry
- UMass Medical School
- Debra.pinals_at_massmail.state.ma.us
2Principles Related to Competence
- Task-specific
- Moment-specific
- Diagnosis does not define incompetence
- Presumption of competence- incompetence requires
a judicial determination - Threshold for incompetence may vary depending on
task
3Competence to Stand Trial
4Competence to Stand Trial
- Emerged out of 17th Century Law
- Mute by malice vs. by visitation from God
5Competence to Stand Trial
- Grounded in constitutional rights
- 6th Amendment
- 14th Amendment
6Competence to Stand Trial
- Questioned in 10-15 of public defense cases
- Only half of those are evaluated formally
- Estimate of 60,000 CST evaluations per year
- 9000 defendants found IST each year
- 4000 IST defendants in state beds at any time
- 12000-15000 defendants committed as IST/year
- 1001 IST to NGI
- Psychosis and ID/DD most common IST reasons
7Dusky v. U.S. (1960)
- USSC states the test for competence is whether
the defendant has sufficient present ability to
consult with his lawyer with a reasonable degree
of rational understanding and whether he has a
rational as well as factual understanding of the
proceedings against him.
8Present Ability
- Present, not past as in sanity evaluations
- Occasional circumstances especially in appeals
cases of a retrospective analysis of competence
to stand trial at the time of trial or entering a
plea - Mental state could be impaired, but ability
relevant to CST may remain intact
9Capacity to Participate
- Not willingness I dont want to deal with this
case - Not entitlement I dont have to deal with this
case - Not dread Im dreading dealing with this case
10Reasonable Understanding
- Knowledge not required to be perfect
- Knowledge not required to be complete
- Knowledge not required to be sophisticated
11- Emphasis on FUNCTIONAL abilities requires
flexible test - Dusky has no requirement for mental illness or
developmental disability, but some states add
this (including DSM diagnoses) - Immaturity as a factor for Competence to Stand
Trial also being added to some juvenile-related
legislation
12Additional Case Law
- Drope v. Missouri (420 U.S. 162 (1975))
- Adds the requirement that the defendant must be
able to assist in preparing his defense - Goes beyond consulting with Counsel
13Amnesia and Competence to Stand Trial
14Wilson v. U.S. D.C. Circuit Court of Appeals,
1968
- Amnesia does not equal incompetence especially
when - knowledge of events can be reconstructed
- defendant can follow proceedings and discuss them
with attorney - Specific factors should be reviewed post-trial to
assess fairness
15Competence to Stand Trial Assessment
- Understanding of charges, verdicts and potential
consequences - Understanding of trial participants and process
- Ability to assist counsel
- Decision-making ability
16Competence to Stand Trial Assessment Instruments
- Each has pros and limitations
- No one test will determine competence
- Most are focused on adult defendants
- Examiners must understand the limitations of
results, scores and overall interpretation
related to these tests
17Competence to Stand Trial Assessment Instruments
- Screening Types
- Semi-structured Interview Types
18Competence to Stand Trial Assessment Instruments
Newer Versions
- MacArthur Competence Assessment Tool- Criminal
Adjudication (MacCAT-CA) (Hoge et al.
Psychological Assessment Resources, 1999) - Evaluation of Competency to Stand Trial-Revised
(ECST-R) (Rogers et al. Psychological Assessment
Resources, 2004)
19Competence to Stand Trial Assessment Instruments
forSpecific Populations
- Competence Assessment for Standing Trial for
Defendants with Mental Retardation - (CAST-MR) (see. Everington, C. (1990) ava at
IDS Publishing) - Multiple choice questions
- Vocabulary and syntax modifications (grade 4
reading level) - Focuses on functioning rather than symptoms
20Competence to Stand TrialDisposition of
Incompetent Defendants
21Jackson v. IndianaU.S. Supreme Court, 1972
- Theon Jackson MR, deaf, mute
- Charged with two robberies of 9 total
- Found IST and committed to Indiana DMH until
sane - Jacksons lawyer appealed arguing under
- 14th Amendment
- 8th Amendment
22Jackson v. Indiana (1972)
- USSC ruled in favor of Jackson
- Length of commitment must not exceed time
required to see if there is a substantial
probability def is restorable in the foreseeable
future - If restoration not possible commitment must be
via civil commitment
23Jackson v. Indiana (1972)
-
- Due Process requires that the nature and
duration of confinement bear some reasonable
relation to the purpose for which the individual
is confined.
24Competence to Stand TrialRestorationAttainmentH
abilitationRemediation
25Competence Restoration
- Psychotropic medications
- Mainstay of restoration for MI defendants
- Legal risks of medications raised
- Legal benefits of medications
- Voluntary vs. Involuntary medication
26Riggins v. Nevada (U.S. Supreme Court, 1992)
- Involuntary administration of psychotropic
medication in a pretrial defendant rejected - Issues for consideration in future cases
- Medical appropriateness
- No less intrusive alternative
- Essential for the safety of defendant and others
- Involuntary medication for restoration not
decided, but left as a possibility
27Sell v. U.S.U.S. Supreme Court, 2003
- Medication to restore CST can be
- administered involuntarily under limited,
- rare, circumstances
- Alternative grounds to forcible medication must
be tried first
28Sell v. U.S.U.S. Supreme Court, 2003
- Important government interest is at stake (e.g.,
confinement for treatment, fairness of the trial
vs. timeliness of prosecution) - Medication will substantially further those
interests, and substantially unlikely to have
side effects that will interfere significantly - Involuntary medication is necessary to further
those interests and alternative, less intrusive
treatments are unlikely to achieve substantially
the same results. - Medication is appropriate
29Alternative Grounds for Medication
- Dangerousness
- Lack of capacity to make treatment decisions as
determined through civil proceedings
30Competence Restoration
- Non-pharmacological competence restoration
31Competence Restoration Sample Program (Davis 1985)
- Restoration trumps other psychosocial issues
- Treatment plan articulates reasons for IST and
treatment focuses on - Knowledge of the charge
- Knowledge of the possible consequences of the
charge - Ability to communicate rationally with counsel
- Knowledge of courtroom procedures
- Capacity to integrate and efficiently use
knowledge and ability at trial or in a plea
bargain
32Restoration Group Learning Formats (Noffsinger
2001 Mossman et al., 2007)
- Education
- Anxiety reduction
- Guest lectures
- Mock trials
- Video modules
- Post-restoration module
- Current legal events
33Potential New Methodologies
- Cognitive Remediation Strategies
- Attention
- Memory
- Reasoning
- Executive Functioning
Schwalbe, E., Medalia, A. (2007)
34- CST Remediation/Attainment Programs for Specific
Populations
35The Slater MethodWall et al, 2003 Eleanor
Slater Hospital of the Rhode Island Department of
Mental Health Retardation and Hospitals
- Focuses on Competence Restoration for Defendants
with Intellectual Disability - Inpatient and outpatient versions
- Outpatient version advantages
- Avoid confinement that could foster regressive
behavior - Diminishing client anxiety about the process
- Education provided by known and trusted staff
36The Slater MethodWall et al, 2003 Eleanor
Slater Hospital of the Rhode Island Department of
Mental Health Retardation and Hospitals
- Phase I- Knowledge-based training
- Phase II- Understanding-based training
- Broken out by cognitive, communication and
emotions and behavior training goals - Use of repetition of modules
- Use of photographs
- Use of tests and scores to move levels
37Juvenile Competence and Restoration
- Increasing area of focus
- Not all states require juveniles in juvenile
court to be competent to stand trial - Where CST is being raised, factors may include
immaturity, mental illness and cognition
38Sample Juvenile Restoration Issues 16.1-357
Code of Virginia
- Virginia Dept of Behavioral Health and
Developmental Services arranges for the provision
of juvenile restoration services - Qualified evaluators
- Restoration services (e.g., restoration
counselors providing 2-3 sessions per week)
39Virginia Statutory Example
- Restoration for three months, with option to
renew - If determined unrestorable
- Civil commitment to a mental health facility
- Certify for eligibility for admission to a
training center - Have a child in need of services petition filed
- Release
40Virginia Juvenile RestorationCurriculum
Content(http//avillage.web.virginia.edu/RYApp/cu
rricula-tools)
- The legal basis of trial competence
- Time-sensitive needs of the juvenile
- Requirements of a community-based service
delivery model - Competency intervention strategies
- Restoration case management
- Restoration tools for children and adolescents
- Overcoming problems through problem solving
- The importance of the dyadic relationship
- The emerging contours of the evidence-based
practice - Glossary of relevant legal terms
41Curriculum Content(http//avillage.web.virginia.e
du/RYApp/curricula-tools) The Virginia Model for
Restoring Youth Adjudicated Incompetent to Stand
Trial
42RestoRation Programming Summary
43Components of Model Restoration Program
(Mossman et al., 2007)
- Systematic CST assessments that articulates
unique deficits - Individualized treatment program
- Multi-modal, experiential restoration education
experiences - Education
- charges and severity, sentencing, pleas and plea
bargaining, courtroom personnel, adversarial
nature of proceedings, understanding and
evaluating evidence
44Components of Model Restoration Program
(Mossman et al., 2007)
- Anxiety reduction
- Additional educational components for defendants
with low intelligence - Periodic reassessment of CST
- Medication
- Capacity assessments and involuntary treatment
45- Majority of adult defendants who were restored
were restored in 90 -180 days or less - Defendants with ID were less likely to be
restored (18-33)
Zapf, P. (2013). Standardizing Protocols for
Treatment to Restore Competency to Stand Trial
Interventions and Clinically Appropriate Time
Periods (Document No. 13-01-1901). Olympia
Washington State Institute for Public Policy.
46Caveats
- The benefit of adding psyhoeducational training
to restore competency to defendants who are
exhibiting mental illness but who are not
cognitively challenged has not been firmly
established - Legal education in group formats may be generally
helpful to defendants
See Zapf, P. (2013). Standardizing Protocols for
Treatment to Restore Competency to Stand Trial
Interventions and Clinically Appropriate Time
Periods (Document No. 13-01-1901). Olympia
Washington State Institute for Public Policy
and National Judicial College Best Practices on
Restoration www.mentalcompetency.org
47Caveats
- For defendants with developmental and
intellectual disabilities, restoration rates are
low and services required are intense
National Judicial College Best Practices on
Restoration www.mentalcompetency.org.
48- The Dilemma of the
- Unrestored vs. Unrestorable
49Restoration Statute Key Features (examples)
(Mossman et al 2007)
State Test for Restorability Maximum Time for Restoration
MA Not specified Not really specified. IST committed for ½ max time or max time prior to parole eligibility
OH Likelihood of being restored within one year if treated 30 or 60 d for misdemeanors 6 months for lesser felonies 12 months for major felonies
GA Substantial probability of attaining competence to stand trial in foreseeable future One year
AZ Substantial probability defendant will regain competence within 21 months of original finding of incompetence The lesser of 21 months or the maximum sentence for the offense
50Predicting Restorability(Parker 2012)
- 43 State statutes require an assessment of
probability of restoration - 24 defer this opinion to after restoration has
started - Statutorily possible in many states to opine
unrestorability after a single evaluation but
almost never done in practice
51Predicting Restorability Pitfalls
- Most will be restored
- Most with primary mental illness restored within
three to six months - Only about 20-30 of DD defendants are restored
- Predicting a low base rate (those unrestorable)
more difficult - Multiple studies demonstrated over-prediction of
restorability, e.g., - 85 Illinois defendants ultimately not restored
had been predicted as restorable (Cuneo et al.,
1984)
52What is substantial probability of
Unrestorability?
53- From a courts perspective, low but greater than
0 probability of being restored may be sufficient
to warrant a restoration attempt - Several statutes mandate restoration periods
54Variables Considered Relevant to Restorability
Predictions
- Low probability Restoration (Mossman 2007)
- Chronically psychotic defendants with histories
of long inpatient hospitalizations - Those with clear chronic cognitive disorders
- BUT
- Six of 15 MR defendants were CST after
restoration (Wall 2003) - Is low probability a reason to NOT restore?
55Unrestorable Defendants vs. Civil Patients
(Levitt et al 2010)
- Arizona study of 293 admissions of unrestorable
defendants and matched civil involuntary
admission - Unrestorable patients
- Met fewer admission criteria
- Received court-ordered treatment 22 more often
- Longer hospital stays despite being found less
dangerous to themselves or others than the
community sample
56Unrestorable Defendants
- Control over front and back door to state
facilities may intermingle clinical, forensic,
judicial, political, and public safety
decision-making
57The Quandry of UnrestorabilityParker 2012
- Restoration in inpatient settings may not require
commitment criteria - Some states have no limited initial restoration
periods, or limited restoration followed by
indefinite confinement (with or without
commitment criteria) - 19 states overall have no statutory limit on
length of time a defendant can be held after IST
finding
58Competence Restoration Inpatient Placement
- Legal challenges related to long waitlists for
restoration beds
59- System Examination and
- Creative Solutions
60Virginia Commission on Youth 1999
Report Available at http//avillage.web.virginia.
edu/RYApp/history
61ABA RecommendationsAmerican Bar Association ABA
Criminal Justice Mental Health Standards,
Standard 7-4.13 (1989). Available at
http//www.americanbar.org/publications/criminal_j
- Incompetent defendants charged with minor crimes
should be released or civilly committed - Unrestorable defendants charged with serious
felonies should be tried, and, if convicted,
should be committed under the procedures and
criteria applicable to those found not guilty by
reason of insanity - ?operational ability to do this
62Jail-Based Restoration Programs
- Proper candidates
- Treatment in a punitive setting
- Separation of roles between treaters and forensic
evaluators - Procedures for involuntary medication
- Consolidation of jail based restoration services
- Malingering assessments
- Cost savings
- Kapoor 2011
63Process for IST Patients in MA
Release of IST Defendant? Re-Commitment? Resolutio
n of Charges?
64Understanding Legal and Services Needs Posture
- What are the range of realistic dispositions
- Defense, Prosecution, Victim, Defendant, etc.
perspectives
65Incompetent Defendants Treatment and Management
66- Appraisal of legal defenses
- Education about options
- Knowledge
- Ability to do a balanced weighing
67- DBT skills
- Meditation
- Anger management
- Medications
- Supportive psychotherapy
68Approaches to Restoration via Medication
Management
- Equals approaches to treatment
- Better treatment of positive, negative, manic,
depressed, impulsivity, cognitive symptoms.more
likely restoration - Thoughtful psychopharmacology
69Medication Treatment Resistance
- ?No response
- ?less than ideal response
- ?partial response in one domain but not another
70Tools for Treatment Resistance
- Medication algorithms
- Neuropsychological therapy and environmental
engineering - Contingency management (positive behavioral
support plans) - Cognitive behavioral therapy for
treatment-resistant psychotic symptoms - Further individualized assessment of
pharmacotherapy (with regular symptom
measurements, historical reviews, etc) - Therapeutic jurisprudence
- Risk assessment and risk management
Pharmacological and Psychosocial Treatments in
Schizophrenia 2nd ed - D. Castle, et al.,
(Informa, 2008)
71Delusional Disorder and Restoration through
Psychopharmacology (Herbel and Stelmach 2007)
- The untreatable condition myth
- 77 of defendants with delusional disorder
medicated and successfully restored compared with
87 with schizophrenia (Ladds et al., 1993). - Duration of untreated psychosis, if less than 10
years, did not predict who would not be restored - Treatment duration- 2-3 months for delusions
(cf., 1 mo. for hallucinations) (range to
restoration 4 wks-5 mos) - Government conspiracy beliefs often cited as
reason why restoration would not work, but this
was not an absolute
72Competence Restoration Psychopharmacologic
Challenges
- Restoration location
- What options are available for medications
- Routes of administration
- Monitoring of impact of medications
- Trans-institution services
- Restoration on inpatient unit may impact
maintenance once transitioned back to jail - Formulary differences
- Environmental Factors
73Potential Guidelines
- Assess inter-institutional medication challenges
- Provide formulary information and restoration
education to prescribers - Maximize financial coverage for stabilizing
medications in the community - Identify mechanisms to maximize treatment with
least restrictive methods - Motivational interviewing
- Engagement of family and significant others
- Peer supports
74Examination Stage Quick Fixes (GAINS Center 2007)
- Rapid access to evaluators through appropriate
fees or court-based evaluation structure (e.g.
MA, IL) - Transfer to inpatient setting prior to competency
proceedings when needed (e.g., MD, VA) - Competency Courts (e.g. Nevada, Seattle)
- Coordination between transport, hospitals, courts
- IST dockets
- Time sensitive case processing
75Restoration Stage Quick Fixes (GAINS Center 2007)
- Utilization management of restoration beds
- Suitability for community or jail-based
restoration - Prompt return to court upon restoration
- Capacity to transfer between levels of care as
needed during restoration (e.g. TX) - More standardized approaches to restoration
across settings (e.g. VA) - Reasonable statutory time frames for restoration
- Jail-based and community-based restoration
76Restoration Stage Quick Fixes (GAINS Center 2007)
- Mechanisms for information sharing between
courts, jail, and hospitals regarding treatment
and legal information (e.g., MD) - Videoconferencing for Sell hearings (e.g. Texas
and Nevada) - Teleconferencing status hearings during
restoration (e.g., Wisconsin)
77Return to Court Stage Quick Fixes (GAINS Center
2007)
- Coordination
- Communication
- Transportation
- Completed discharge planning
78The Unrestorable DefendantPotential Solutions
- State Medicaid Plan Amendments with 1915i waivers
for home and community based services that target
specific populations
79The Unrestorable DefendantPotential Solutions
- Compassionate release
- Most states grant some form of early release to
eligible dying prisoners - May require special services to receive IST
defendants with severe conditions (e.g.,
neurocognitive deficits) - Procedural barriers (e.g, MA Sex Offender statute
precluding nursing home placement of certain SOs) - See, e.g., People v. Quinn 1988 and People v.
Ortiz 1990 citing physician testimony of bleak
prognosis, and consideration of mercy over
injustice of conviction (Perlin Dvoskin 1990)
80The Unrestorable DefendantPotential Solutions
- Expansion of IST Docket to Include Unrestorable
Hospitalized or Community-Based MI or DD
Defendants - Team approach
- Multiple stakeholder input
- Multiple additional agencies
- Youth
- Elderly
- Medically complex
81Unrestorability Summary
- Complex multi-systemic challenges
- Stakeholder input to problem solve together
- Consider needs, develop plans, buy in
- Case pathways
- Specialists in case processing
- Liberal Consultation