Download Competency to Stand Trial Evaluations

COURT-ORDERED
EVALUATIONS
Presented by:
Dr. Tonya Martin and Dr. Danielle Todaro
Fort Bend County Behavioral Health Services
PSYCHOLOGICAL AND
IDD EVALUATIONS
Dr. Martin
PSYCHOLOGICAL EVALUATIONS
Evaluations designed to provide
information regarding history,
psychological diagnoses, substance
abuse issues and clinical
recommendations to the court
NOT competency to stand trial
evaluations
DO NOT provide recommendations
regarding punishment/sentencing
decisions
WHAT TO PROVIDE THE EXPERT
Previous mental health evaluation and
treatment records
Texana/MHMRA treatment records
Records from psychiatric
hospitalizations(local and state hospitals)
Private psychiatrist/psychologist records
Current medications
Educational records (IDD evaluations)
Contact info for collateral sources
(parents, spouse, children, etc.)
EVALUATION PROCESS
Review all available records
Detailed clinical interview with
defendant
Background history
Mental status exam
Consultation with collateral sources
EVALUATION PROCESS
 Psychological testing is sometimes included to
help provide additional clinical information
 Testing alone can not be used to render a
diagnosis or clinical opinion
 Examples of commonly used tests:
 Intellectual (WAIS, WISC, WASI)
 Adaptive functioning (Vineland, SSSQ)
 Personality/clinical (MMPI, MCMI, PAI)
 ADHD/Anger measures (Conner’s, ARES)
 Memory (WMS, Rey 15 Item, BETA-4)
 Response Style (M-FAST, TOMM, SIMS)
PSYCHOLOGICAL EVALUATIONS
 Evaluation Template
 Specific Issues of Examination
 Disclosures (court-ordered evaluation)
 Current Allegations
 Sources of Information
 Background and Demeanor of Defendant
 Relevant History (as self-reported by defendant,
obtained from collateral sources and available
records)
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Family
Academic
Employment
Substance abuse
Legal
Trauma
Psychiatric and Medical
PSYCHOLOGICAL EVALUATIONS
 Current Mental Status Examination
 Behavior/Demeanor
 Orientation
 Attention/Concentration
 Memory
 Mood
 Affect
 Thought Content
 Thought Process
 Perception
 Insight
PSYCHOLOGICAL EVALUATIONS
Results of Testing
Diagnostic Impressions
Summary
Recommendations
DSM-5: INTELLECTUAL
DEVELOPMENTAL DISORDER (IDD)
 No longer identified as Mental Retardation in
the DSM
 Main Criteria
 To receive diagnosis need to have significant
impairment in
 Intellectual functioning
 Adaptive functioning
 No longer determined solely by IQ score
 Those w/ true serious impairment in intellectual
& adaptive functioning fall lower 2% of
population
 Scores in both areas must be extremely low
ADAPTIVE FUNCTIONING
 What is it?
 How well a person copes with demands in life
 How independent they are from caregivers/adults
 The performance of daily activities required for
personal and social sufficiency
 How do we measure it?
 ABAS-3
 Vineland-3
 SSSQ
 Not as reliable
 Leaders in IDD research say should not use unless
no other measure accessible
IDD EVALUATIONS
 Tend to be shorter than psychological
evaluations
 Clinical Interview
More focus on areas involving intellectual and
adaptive functioning
School
Regular questions + more specific information
surrounding special education services
School records are a MUST
IDD EVALUATIONS
Family
Their responsibilities at home
Is help needed?
Do they help younger siblings (adequately)?
Employment
To & from work on own?
Work performance and ability to do job
alone
Still ask questions about psychiatric history
IDD EVALUATIONS
 Testing
 Intellectual
 Comprehensive measure is best: WISC-V, WAIS-IV
 If have results from prior screening measures, include
that-> to monitor his capacities over time-> highly
likely to be a prior screening measure
 Adaptive
 ABAS-3 & Vineland-3 = best practice for measure of
adaptive functioning
 Summary/Clinical Impressions
 Brief
 Opinion on IDD
 Treatment Recommendations
COMPETENCY TO STAND
TRIAL EVALUATIONS
Dr. Todaro
COMPETENCY TO STAND TRIAL
EVALUATION
It is NOT a general psychological or
diagnostic evaluation
It is NOT an assessment of criminal
responsibility (sanity)
It is NOT a forensic assessment that
addresses dangerousness
It does NOT offer recommendations
for punishment/sentencing
INCOMPETENCY
 Article 46B.003: A defendant is presumed
competent to stand trial and shall be found
competent to stand trial unless proved
incompetent by a preponderance of the evidence
 In TX, A person is incompetent to stand trial if the
person does not have:
 Sufficient present ability to consult with the person's
lawyer with a reasonable degree of rational
understanding and/or
 Rational as well as factual understanding of the
proceedings against the person
INCOMPETENCY
“ Incompetence and mental illness
are not synonymous” (Grisso, 2014)
A defendant may be psychotic,
manic, depressed or intellectually or
developmentally disabled and still
be competent to stand trial
WHO CAN CONDUCT COMPETENCY
EVALUATIONS?
 Article 46B.021: Qualifications of Experts
 Court may appoint a qualified psychiatrist or
psychologist as an expert with following
qualifications:
At least 24 hours of specialized forensic
training relating to incompetency or insanity
evaluations
Eight or more hours of continuing education
relating to forensic evaluations, completed in
the 12 months preceding the appointment
WHAT TO PROVIDE THE EXPERT
 Your impressions/concerns regarding the defendant’s CST
 Contact info for collateral sources (parents, spouse, etc.)
 Previous mental health evaluation and treatment records
 Previous CST evaluations
 Texana/MHMRA treatment records
 State Hospital records (if there for restoration or for
treatment)
 Records from other psychiatric hospitalizations
 Private psychiatrist/psychologist records
 Current medications
 Educational records
 Social security/disability records
 VA records
 TDCJ Records
EVALUATION PROCESS
 Review all available records
 Clinical interview with defendant
 Background history
 Mental status exam
 Competency-specific questions
 Consultation with collateral sources
 Psychological testing
 This is done as needed-typically not in every
evaluation
 CST measures are not necessary
COMPETENCY EVALUATIONS
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Evaluation Template:
Qualifications of Examiner
Specific Issues of Examination
Disclosures
Current Allegations
Sources of Information
Background and Demeanor of Defendant
Relevant History
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Family
Academic
Employment
Substance abuse
Legal
Psychiatric and Medical
 Current Mental Status
COMPETENCY EVALUATIONS
 Competency Assessment
 1. The capacity of the defendant during criminal
proceedings to:
 a. Rationally understand the charges against the
defendant and the potential consequences of the
pending criminal proceedings
 b. Disclose to counsel pertinent facts, events, and
states of mind
 c. Engage in a reasoned choice of legal strategies
and options
 d. Understand the adversarial nature of criminal
proceedings
 e. Exhibit appropriate courtroom behavior
 f. Testify
COMPETENCY EVALUATIONS
 2. As supported by current indications and the
defendant's personal history, whether the defendant has
 a. a mental illness and/or
 b. is a person with Intellectual Developmental
Disability (mental retardation)
 Psychotic Disorder (Schizophrenia; Schizoaffective;
Psychotic Disorder, NOS; Delusional Disorder)
 Bipolar Disorder (with/without Psychotic Features)
 Major Depressive Disorder (with/without Psychotic
Features)
 Intellectual Disability
 Autism Spectrum Disorder
 Other neurological disorder
COMPETENCY EVALUATIONS
 3. Whether the identified condition has lasted or
is expected to last continuously for at least one
year
 History of diagnosis
 Course of treatment
 Serious and persistent mental
illness/intellectual disability
COMPETENCY EVALUATIONS
 4. The degree of impairment resulting from the
mental illness or mental retardation, if existent, and
the specific impact on the defendant's capacity to
engage with counsel in a reasonable and rational
manner
 Symptoms which may interfere
 Auditory/visual hallucinations
 Delusions
 Thought disorder/disorganized speech
 Attentional difficulties
 Cognitive processing difficulties
 Language difficulties
COMPETENCY EVALUATIONS
 5. If the defendant is taking psychoactive or
other medication:
 a. whether the medication is necessary to
maintain the defendant's competency
 b. the effect, if any, of the medication on the
defendant's appearance, demeanor, or
ability to participate in the proceedings
 Medication compliance/noncompliance
 Side effects
COMPETENCY EVALUATIONS
 Opinion on Competency to Stand Trial
 In Texas, the examiner is required to provide an
opinion on competency
 Must also provide whether defendant is likely
to be restored in the foreseeable future
 Opinion may not be based solely on the
defendant's refusal to communicate during
the examination
 Explain any issues on which the expert could
not provide an opinion
NEXT STEPS:
INCOMPETENCY
Either trial before judge or jury OR
uncontested finding of incompetency
On a determination that a defendant is
incompetent to stand trial, the court
shall:
Commit the defendant to a facility for
competency restoration OR
Release the defendant on bail to attend
outpatient restoration treatment
NEXT STEPS:
INCOMPETENCY
 The court shall commit a defendant as follows:
 Misdemeanors: 60 days
 Felony: 120 days
 One 60-day extension is allowed if defendant has not
attained competency
 The defendant will receive psychiatric treatment and
competency restoration programming services
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Psychoactive medications
Court-ordered medications
Recreational programming
Court education
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Classes
Quizzes/tests
Mock trial
Watching videos
NEXT STEPS:
INCOMPETENCY
 The head of the facility or outpatient treatment
program provider will notify the court when it is
believed that:
 1. The defendant has attained competency to stand trial OR
 2. The defendant is not likely to attain competency in the
foreseeable future
 If the Court determines that an individual has been
restored to competency-proceedings continue
 If the Court determines that an individual remains
incompetent:
 Charges can be dismissed
 Civil commitment can be pursued with or without pending
legal charges
THINGS TO REMEMBER
An opinion of incompetency is not
equated with innocence
Incompetency is not equated with
insanity
MI and IDD are not equated with
incompetency
Evaluation occurs over a brief span of
time
THINGS TO REMEMBER
 Competency is a here and now issue
 Someone who was previously incompetent
could currently be competent and vice versa
 Historical information is important but may not
be relevant to current competency
 Important to know if defendant was previously
determined to be not competent, not likely to
be restored
 The final decision regarding competency to
stand trial is a legal issue which is ultimately
decided upon by the Court
FITNESS TO PROCEED
EVALAUTIONS
Dr. Todaro
FITNESS TO PROCEED
 Sec. 55.31 Texas Family Code:
 “A child alleged by petition or found to have
engaged in delinquent conduct or conduct
indicating a need for supervision who as a
result of mental illness or mental retardation
lacks capacity to understand the proceedings
in juvenile court or to assist in the child's own
defense is unfit to proceed and shall not be
subjected to discretionary transfer to criminal
court, adjudication, disposition, or modification
of disposition as long as such incapacity
endures.”
FITNESS TO PROCEED
 Same as 46B:
 Expert qualifications
 Factors to consider in examination
 Report guidelines
 Unlike 46B:
 Lacks capacity to understand the proceedings
in juvenile court or to assist in the child's own
defense
 Fitness evaluations require an actual diagnosis
FITNESS TO PROCEED
Clinical interview with juvenile
Background history
Developmental history
Mental status exam
Specific fitness related questions
May require more than one interview
with juvenile, as their presentation can
be less stable that adult defendant
FITNESS TO PROCEED
Unlike adult CST evaluations, fitness
evaluations may require more
consultation with outside sources
Parents/guardians/caretakers
CPS
Probation/detention staff
Teachers
Mental health providers
FITNESS TO PROCEED EVALUATIONS
 Diagnoses to consider in fitness evaluations will
differ from CST evaluations
 Attention-Deficit/Hyperactivity Disorder (ADHD)
 Autism Spectrum Disorder
 Intellectual/Developmental Disorder
 Mood disorders (Depression, Anxiety, Bipolar)
 Psychotic disorders (less common in juveniles)
 Behavioral disorders (ODD, Conduct)-less likely
to be related to fitness
FITNESS TO PROCEED EVALUATIONS
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Evaluation Template:
Qualifications of Examiner
Specific I ssues of Examination
Disclosures
Current A llegations
Sources of I nformation
Background and Demeanor of Defendant
Rel evant History
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Family
Developmental*
Academic
Employment
Substance abuse
Delinquency
Trauma
Psychiatric and Medical
 Current M ental Status
FITNESS TO PROCEED EVALUATIONS
 Diagnostic Impressions
 Areas of Fitness
 Rationally understand the charges against the defendant
and the potential consequences of the pending criminal
proceedings
 Disclose to counsel pertinent facts, events, and states of
mind
 Engage in a reasoned choice of legal strategies and
options
 Understand the adversarial nature of criminal proceedings
 Exhibit appropriate courtroom behavior
 Testify
 Ability to assist in own defense
 Opinion on Fitness
 Recommendations
NEXT STEPS:
FITNESS TO PROCEED
 If child is unfit to proceed-stay court proceedings
 Juvenile will likely be committed to a facility for a
period of up to 90 days for evaluation
 After initial 90 days facility can confirm that the
juvenile is either fit or unfit to proceed
 If the court or jury finds that the child is fit:
 Juvenile proceedings resume
 If the court or jury finds that the child is unfit:
 Commitment proceedings
 Dismissal of charges
 Transfer to criminal court upon 18 th birthday
SANITY EVALUATIONS
Dr. Martin
THE STATUTE: TEXAS
Texas Code of Criminal Procedure,
Chapter 46C
Texas Penal Code 8.01
“It is an affirmative defense to
prosecution that, at the time of the
conduct charged, the actor, as a result
of severe mental disease or defect, did
not know that his conduct was wrong.”
Cognitive Prong only, not Volitional
Prong
SIGNS THE DEFENDANT MAY NEED
A SANITY EVALUATION
Serious mental illness or IDD
Client does not understand why they
were arrested and charged even after
given explanation
Explanation of offense and reasoning for
behavior not reality-based or completely
disorganized
THINGS TO KEEP IN MIND
Sanity assesses mental state at the time
of the offense
If you need a Sanity Eval don’t need to
file a motion for a CST Eval at the same
Chapter 46C: If CST done at a previous
time by an expert, the same expert can
do the Sanity Eval
Sanity is a legal decision ultimately
decided by the Court
WHO CAN CONDUCT SANITY
EVALUATIONS?
 Article 46C.102: Qualifications of Experts
 (a) Court may appoint a qualified psychiatrist or
psychologist as an expert with following
qualifications:
 At least 24 hours of specialized forensic training
relating to incompetency or insanity
evaluations
 At least five years of experience in performing
criminal forensic evaluations for courts; and
 Eight or more hours of continuing education
relating to forensic evaluations, completed in
the 12 months preceding the appointment
CONDUCTING THE EVALUATION
 Three types of information needed:
Historical Info about Defendant’s
Background: relevant to forming an opinion
about mental disorder
Current Mental Status Information: may be
related to defendant’s mental state at the
time of the alleged offense
Observations of Defendant’s Mental State &
Behavior: Around and at the time of alleged
offense
WHAT YOU NEED TO PROVIDE THE
EXPERT
 Records
 Police Reports
 Records on past incarcerations
 TDCJ records
 TJJD records
 Past psychiatric treatment
 County or state psychiatric hospitalizations
 Texana/MHMRA Records
 Substance abuse treatment records
 Educational Records
 Contact information for collateral sources
 Family members
 Friends
CONDUCTING THE INTERVIEW
 Interview Template
 Background Information
 Family & Developmental History
 Abuse & Trauma History
 Educational History
 Social History
 Employment History
 Criminal History
 Religious History (in some cases)
 Substance Abuse History
 Mental Health History
 Medical History
SUBSTANCE ABUSE & THE INSANITY
DEFENSE
 If defendant was under the influence at time
of the crime, this alone does not satisfy the
insanity defense
 How do we determine this?
Client interview
Collateral records
Interviews with family members
Offense report-> collateral information about
defendant’s behavior at time of the crime
(observations of being under influence)
SUBSTANCE ABUSE AND THE
INSANITY DEFENSE
Data to collect
Patterns of use at and around the
time of alleged offense
Whether defendant was
intoxicated at the time
The last time defendant used
substances prior to the alleged
offense
Any evidence of withdrawal
symptoms in period following the
incident
SUBSTANCE ABUSE AND THE
INSANITY DEFENSE
 Relationship of substance use to defendant’s
presentation of symptoms of mental illness
 Data regarding episodes of psychosis, depression,
mania, paranoia, or other disorders that have
occurred in the context of alcohol or substance use
 Does the defendant have hx of such symptoms,
independent of such use?
 Are the symptoms exacerbated by use of alcohol
or drugs?
 Are psychotic episodes induced by
alcohol/substance use, but then continue past
the period of intoxication?
CONDUCTING THE INTERVIEW
 Current Mental Status Examination
 Behavior/Demeanor
 Orientation
 Attention/Concentration
 Memory
 Mood
 Affect
 Thought Content
 Thought Process
 Perception
 Insight
CONDUCTING THE INTERVIEW
 Factors Relevant to Sanity (Texas: Cognitive Prong
only)
 Events Preceding the Offense
 When did the offense happen? (day, time)
 What happened that day (or weeks) leading up
to offense?
 Contextual Information about defendant’s
relationship to victim (if not already gathered)
 Defendant’s Account of the Offense
 Behaviors and mental state related to offense
 Detailed account
CONDUCTING THE INTERVIEW
 Defendant’s Perception of the Offense
 Ask main question flat out: Whether or not he/she
thought at the time that their particular behaviors
would be considered illegal or wrong
 Note: If defendant says they knew it was wrong
during evaluation, this does not “prove” it was true
at time of the offense
 Seek data consistent/inconsistent with defendant’s
assertion
 What were you thinking/feeling after the offense
occurred?
CONDUCTING THE INTERVIEW
 What do you think might have been another way
to handle the situation(s)? (Volitional Prong)
 Notable Events Following the Offense (Volitional
Prong)
 What happened after the offense?
 Trying to avoid detection, cover up actions, etc.
 Competency-related factors
 Opinion on sanity
 46C requires that the expert give an opinion on
sanity
IF ACQUITTED BY REASON OF
INSANITY
 If defendant is found NGRI, does that mean they’re
“getting away” with their crime?
 NO; not skirting confinement
 Could end up in hospital for the rest of their life
 Depending on severity of illness & dangerousness of
offense
 If judge or jury rules NGRI -> determine if offense
involved dangerous conduct:
 Caused serious bodily injury to another person
 Placed another person in imminent danger of serious
bodily injury, or
 Consisted of a threat of serious bodily injury to another
person through use of a deadly weapon
DISPOSITION FOLLOWING NGRI: NO
DANGEROUS CONDUCT
 Subchapter E, Article 46 C.201
 Court determines whether evidence to support
finding that the person has a mental illness or IDD
presently
 If there is evidence of such:
 Court orders transfer of defendant to appropriate
court for civil commitment proceedings
 Determine whether person can receive courtordered mental health services under Health and
Safety Code Title 7, Subchapter C; or
 Be committed to a residential care facility to receive
IDD services (Health and Safety Code, Title 7,
Subchapter D)
DISPOSITION FOLLOWING NGRI:
NO DANGEROUS CONDUCT
 The Court may also order the person:
 Detained in jail or “any other suitable place”
pending prompt initiation and prosecution of
civil proceedings
 Placed in care of a responsible person on
“satisfactory security” being given for the
acquitted person’s proper care and protection
 If the court does not detain or place the person
under 46C.201, the court shall release the
person
DISPOSITION FOLLOWING NGRI:
DANGEROUS CONDUCT
Subchapter F, Article 46C. 251
Step 1: Court shall order acquitted person
to be committed to evaluation of their
present mental condition and for
treatment to maximum security unit of
facility designated by department.
Commitment cannot exceed 30 days->
hearing no later than 30 th day after date
of acquittal
DISPOSITION FOLLOWING NGRI:
DANGEROUS CONDUCT
 Step 2: Evaluation (Article 46C.252)
 Presence of MI or IDD and whether it is severe
 If as a result of any severe MI or IDD, person is likely
to cause serious harm to another
 If as a result of any impairment, is subject to
commitment under Health and Safety Code, Title 7,
Subchapters C or D (court-ordered MH or IDD
services)
 Prospective treatment and supervision options, if
any
 If any required treatment and supervision can be
safely and effectively provided as outpatient or
community-based treatment and supervision
DISPOSITION FOLLOWING NGRI:
DANGEROUS CONDUCT
 Step 3: Hearing to determine above (Article
46C.253)
 Commit to either an inpatient facility,
outpatient/community-based setting, or courtordered MH or IDD services under Health and
Safety Code, Title 7, Subchapters C or D
 Or Court will discharge and immediately release if
evidence fails to establish that disposition for any
of above is appropriate
DISPOSITION FOLLOWING NGRI:
DANGEROUS CONDUCT
 Step 3a: Order of Commitment to Inpatient
Treatment or Residential Care (Article 46C.256)
 State establishes by “clear and convincing
evidence” that:
 Person has severe MI or IDD
 Person as a result of MI or IDD is likely to cause
serious bodily injury to another person if not
provided treatment and supervision
 Commitment = necessary to protect safety of
others
 Order of commitment expires on the 181 st day
following date the order is issued, but is subject to
renewal
DISPOSITION FOLLOWING NGRI:
DANGEROUS CONDUCT
Step 3b: Order to Receive
Outpatient or Community-Based
Treatment and Supervision
Same criteria above, but State fails
to establish that inpatient treatment
in necessary
Renewal after one year
DISPOSITION FOLLOWING NGRI:
DANGEROUS CONDUCT
 Step 4: Renewal of Orders for Inpatient
Commitment or Outpatient or Community Based Treatment and Supervision (Article
46C.261)
Not later than 30 th day before date an order
scheduled to expire-> facility or State’s
attorney may file request that order be
renewed
Request must be accompanied by reevaluation for mental illness within previous 30
days
DISPOSITION FOLLOWING NGRI:
DANGEROUS CONDUCT
Court shall renew order only if the court
finds that the party who requested
renewal has established by clear and
convincing evidence that continued
mandatory supervision and treatment are
appropriate
Renewal = not more than one year
 Step 5: After Inpatient Commitment, court
can order outpatient or community-based
treatment and supervision (Article
46C.262)
QUESTIONS?