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
Principles Related to Competence
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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
Competence to Stand Trial
Competence to Stand Trial
• Emerged out of 17th
Century Law
– Mute by malice vs. by
visitation from God
Competence to Stand Trial
• Grounded in constitutional
rights
– 6th Amendment
– 14th Amendment
Competence to Stand Trial
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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
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.”
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
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”
Reasonable Understanding
• Knowledge not required to be perfect
• Knowledge not required to be complete
• Knowledge not required to be sophisticated
• 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
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”
Amnesia and
Competence to Stand Trial
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
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
Competence to Stand Trial Assessment
Instruments
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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
Competence to Stand Trial
Assessment Instruments
• Screening Types
• Semi-structured Interview Types
Competence to Stand Trial
Assessment Instruments:
Newer Versions
• MacArthur Competence Assessment
Tool- Criminal Adjudication (MacCATCA) (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 for
Specific 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
Competence to Stand Trial:
Disposition of Incompetent Defendants
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
– 14th Amendment
– 8th Amendment
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
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.”
Competence to Stand Trial
Restoration
Attainment
Habilitation
Remediation
Competence Restoration
• Psychotropic medications
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Mainstay of restoration for MI defendants
Legal risks of medications raised
Legal benefits of medications
Voluntary vs. Involuntary medication
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
Sell v. U.S.
U.S. Supreme Court, 2003
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Medication to restore CST can be
administered involuntarily under limited,
“rare”, circumstances
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Alternative grounds to forcible medication
must be tried first
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
Alternative Grounds for
Medication
• Dangerousness
• Lack of capacity to make treatment decisions
as determined through civil proceedings
Competence Restoration
• Non-pharmacological competence
restoration
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
Restoration Group Learning Formats (Noffsinger
2001 ; Mossman et al., 2007)
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Education
Anxiety reduction
Guest lectures
Mock trials
Video modules
Post-restoration module
Current legal events
Potential New Methodologies
• Cognitive Remediation Strategies
– Attention
– Memory
– Reasoning
– Executive Functioning
Schwalbe, E., & Medalia, A. (2007)
CST Remediation/Attainment
Programs for Specific Populations
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
The Slater Method
Wall 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
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
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)
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
Virginia Juvenile Restoration
Curriculum 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
Curriculum Content
(http://avillage.web.virginia.edu/RYApp/curricula-tools)
The Virginia Model for
Restoring Youth
Adjudicated
Incompetent to Stand
Trial
RESTORATION PROGRAMMING
SUMMARY
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
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
• 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.
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
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.
The Dilemma of the
Unrestored vs. Unrestorable
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 The lesser of 21 months or the
regain competence within 21 months maximum sentence for the
of original finding of incompetence
offense
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
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)
WHAT IS SUBSTANTIAL
PROBABILITY OF
UNRESTORABILITY?
• 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
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
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– Six of 15 MR defendants were CST after
restoration (Wall 2003)
• Is low probability a reason to NOT restore?
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
Unrestorable Defendants
• Control over front and back door to state facilities
may intermingle clinical, forensic, judicial,
political, and public safety decision-making
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
Competence Restoration Inpatient
Placement
• Legal challenges related to long waitlists
for restoration beds
System Examination and
Creative Solutions
Virginia Commission on Youth 1999 Report
Available at: http://avillage.web.virginia.edu/RYApp/history
ABA Recommendations
American 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
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
Process for IST Patients in MA
• 16(b) or (c)
commitment
• Treatment as
usual
Periodic CST
Re-evaluation
If yes,
assess CST
• Discharge ready?
• Appearing
Competent?
• Med adjustments?
• If CST- Return to
Court
• If IST, notify DA (s.
16(e))
Case Disposition or
Commitment Hearing
Release of IST Defendant?
Re-Commitment?
Resolution of Charges?
Understanding Legal and Services
Needs Posture
• What are the range of realistic dispositions
• Defense, Prosecution, Victim, Defendant, etc.
perspectives
Incompetent Defendants:
Treatment and Management
• Appraisal of legal
defenses
• Education about
options
• Knowledge
• Ability to do a balanced
weighing
• Unmanageable
behavior
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DBT skills
Meditation
Anger management
Medications
Supportive
psychotherapy
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
Medication Treatment Resistance
• ?No response
• ?less than ideal response
• ?partial response in one domain but not
another
Tools for Treatment Resistance
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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)
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
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
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
Examination Stage Quick Fixes
(GAINS Center 2007)
• Rapid access to evaluators through appropriate fees or courtbased 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
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
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)
Return to Court Stage Quick Fixes
(GAINS Center 2007)
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Coordination
Communication
Transportation
Completed discharge planning
The Unrestorable Defendant:
Potential Solutions
• State Medicaid Plan Amendments with 1915i
waivers for home and community based services
that target specific populations
The Unrestorable Defendant:
Potential 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)
The Unrestorable Defendant:
Potential 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
Unrestorability: Summary
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Complex multi-systemic challenges
Stakeholder input to problem solve together
Consider needs, develop plans, buy in
Case pathways
Specialists in case processing
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