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

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Presentation on theme: "Forensic Services: Incompetent, but Not Restorable and Incompetent but Not Committable: challenges and opportunities Debra A. Pinals, M.D. Assistant Commissioner,"— Presentation transcript:

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

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 Emerged out of 17 th Century Law – Mute by malice vs. by visitation from God

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

6 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 100:1 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 don’t want to deal with this case” Not entitlement “I don’t have to deal with this case” Not dread “I’m 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 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) Competence to Stand Trial Assessment Instruments: Newer Versions

19 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 Competence to Stand Trial Assessment Instruments for Specific Populations

20 Competence to Stand Trial: Disposition of Incompetent Defendants

21 Jackson v. Indiana U.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” Jackson’s lawyer appealed arguing under – 14 th Amendment – 8 th 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 Trial Restoration Attainment Habilitation Remediation

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 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 Sell v. U.S. U.S. Supreme Court, 2003

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 Method Wall 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 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 The Slater Method Wall et al, 2003 Eleanor Slater Hospital of the Rhode Island Department of Mental Health Retardation and Hospitals

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 Restoration Curriculum Content ( 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 ( The Virginia Model for Restoring Youth Adjudicated Incompetent to Stand Trial


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:

47 For defendants with developmental and intellectual disabilities, restoration rates are low and services required are intense National Judicial College Best Practices on Restoration: Caveats

48 The Dilemma of the Unrestored vs. Unrestorable

49 Restoration Statute Key Features (examples) (Mossman et al 2007) StateTest for RestorabilityMaximum Time for Restoration MANot specifiedNot really specified. IST committed for ½ max time or max time prior to parole eligibility OHLikelihood of being restored within one year if treated 30 or 60 d for misdemeanors; 6 months for lesser felonies; 12 months for major felonies GASubstantial probability of attaining competence to stand trial in foreseeable future One year AZSubstantial 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)


53 From a court’s 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 Unrestorability Parker 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:

61 ABA Recommendations American Bar Association: ABA Criminal Justice Mental Health Standards, Standard 7-4.13 (1989). Available at: 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 16(b) or (c) commitment Treatment as usual Periodic CST Re-evaluation Discharge ready? Appearing Competent? Med adjustments? If yes, assess CST If CST- Return to Court If IST, notify DA (s. 16(e)) Case Disposition or Commitment Hearing Process for IST Patients in MA Release of IST Defendant? Re-Commitment? Resolution 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 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 Restoration Stage Quick Fixes (GAINS Center 2007)

76 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) Restoration Stage Quick Fixes (GAINS Center 2007)

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

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

79 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) The Unrestorable Defendant: Potential Solutions

80 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 The Unrestorable Defendant: Potential Solutions

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

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