Forensic Services: Incompetent, but Not Restorable and Incompetent but Not Committable: challenges and opportunities - PowerPoint PPT Presentation

About This Presentation
Title:

Forensic Services: Incompetent, but Not Restorable and Incompetent but Not Committable: challenges and opportunities

Description:

Forensic Services: Incompetent, but Not Restorable and Incompetent but Not Committable: challenges and opportunities Debra A. Pinals, M.D. Assistant Commissioner ... – PowerPoint PPT presentation

Number of Views:282
Avg rating:3.0/5.0
Slides: 82
Provided by: dsp60
Category:

less

Transcript and Presenter's Notes

Title: Forensic Services: Incompetent, but Not Restorable and Incompetent but Not Committable: challenges and opportunities


1
Forensic 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

2
Principles 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

3
Competence to Stand Trial
4
Competence to Stand Trial
  • Emerged out of 17th Century Law
  • Mute by malice vs. by visitation from God

5
Competence to Stand Trial
  • Grounded in constitutional rights
  • 6th Amendment
  • 14th Amendment

6
Competence 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

7
Dusky 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.

8
Present 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

9
Capacity 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

10
Reasonable 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

12
Additional 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

13
Amnesia and Competence to Stand Trial
14
Wilson 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

15
Competence to Stand Trial Assessment
  • Understanding of charges, verdicts and potential
    consequences
  • Understanding of trial participants and process
  • Ability to assist counsel
  • Decision-making ability

16
Competence 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

17
Competence to Stand Trial Assessment Instruments
  • Screening Types
  • Semi-structured Interview Types

18
Competence 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)

19
Competence 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

20
Competence to Stand TrialDisposition of
Incompetent Defendants
21
Jackson 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

22
Jackson 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

23
Jackson 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.

24
Competence to Stand TrialRestorationAttainmentH
abilitationRemediation
25
Competence Restoration
  • Psychotropic medications
  • Mainstay of restoration for MI defendants
  • Legal risks of medications raised
  • Legal benefits of medications
  • Voluntary vs. Involuntary medication

26
Riggins 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

27
Sell 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

28
Sell 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

29
Alternative Grounds for Medication
  • Dangerousness
  • Lack of capacity to make treatment decisions as
    determined through civil proceedings

30
Competence Restoration
  • Non-pharmacological competence restoration

31
Competence 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

32
Restoration Group Learning Formats (Noffsinger
2001 Mossman et al., 2007)
  • Education
  • Anxiety reduction
  • Guest lectures
  • Mock trials
  • Video modules
  • Post-restoration module
  • Current legal events

33
Potential New Methodologies
  • Cognitive Remediation Strategies
  • Attention
  • Memory
  • Reasoning
  • Executive Functioning

Schwalbe, E., Medalia, A. (2007)
34
  • CST Remediation/Attainment Programs for Specific
    Populations

35
The 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

36
The 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

37
Juvenile 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

38
Sample 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)

39
Virginia 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

40
Virginia 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

41
Curriculum Content(http//avillage.web.virginia.e
du/RYApp/curricula-tools) The Virginia Model for
Restoring Youth Adjudicated Incompetent to Stand
Trial
42
RestoRation Programming Summary
43
Components 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

44
Components 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.
46
Caveats
  • 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
47
Caveats
  • 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

49
Restoration 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
50
Predicting 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

51
Predicting 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)

52
What 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

54
Variables 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?

55
Unrestorable 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

56
Unrestorable Defendants
  • Control over front and back door to state
    facilities may intermingle clinical, forensic,
    judicial, political, and public safety
    decision-making

57
The 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

58
Competence Restoration Inpatient Placement
  • Legal challenges related to long waitlists for
    restoration beds

59
  • System Examination and
  • Creative Solutions

60
Virginia Commission on Youth 1999
Report Available at http//avillage.web.virginia.
edu/RYApp/history
61
ABA 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

62
Jail-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

63
Process for IST Patients in MA
Release of IST Defendant? Re-Commitment? Resolutio
n of Charges?
64
Understanding Legal and Services Needs Posture
  • What are the range of realistic dispositions
  • Defense, Prosecution, Victim, Defendant, etc.
    perspectives

65
Incompetent Defendants Treatment and Management
66
  • Appraisal of legal defenses
  • Education about options
  • Knowledge
  • Ability to do a balanced weighing

67
  • Unmanageable behavior
  • DBT skills
  • Meditation
  • Anger management
  • Medications
  • Supportive psychotherapy

68
Approaches to Restoration via Medication
Management
  • Equals approaches to treatment
  • Better treatment of positive, negative, manic,
    depressed, impulsivity, cognitive symptoms.more
    likely restoration
  • Thoughtful psychopharmacology

69
Medication Treatment Resistance
  • ?No response
  • ?less than ideal response
  • ?partial response in one domain but not another

70
Tools 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)
71
Delusional 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

72
Competence 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

73
Potential 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

74
Examination 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

75
Restoration 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

76
Restoration 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)

77
Return to Court Stage Quick Fixes (GAINS Center
2007)
  • Coordination
  • Communication
  • Transportation
  • Completed discharge planning

78
The Unrestorable DefendantPotential Solutions
  • State Medicaid Plan Amendments with 1915i waivers
    for home and community based services that target
    specific populations

79
The 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)

80
The 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

81
Unrestorability 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
Write a Comment
User Comments (0)
About PowerShow.com