Debra A. Pinals , M.D. Assistant Commissioner, Forensic Services

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@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 • 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 sufficientpresentability 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. 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 Trial:Disposition 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” • Jackson’s 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 TrialRestorationAttainmentHabilitationRemediation

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/curricula-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.edu/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)

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