The Conundrum of the Unrestorable
Incompetent Defendant
The National Association of Mental Health Program Directors
(NASMHPD) Forensic Division
Atlanta, GA September 23, 2014
Sue Austin, Ph.D, Louisiana Office of Behavioral Health
Juliet Follansbee, J.D. Executive Director, Oregon Psychiatric Security
Review Board
It is long established that a Defendant has a
Constitutional Right to Participate in the Criminal
Proceeding Against Him
Legal Standard: Whether the accused "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."
Dusky v. United States (1960)
By the Numbers
• Nation-wide, approximately 50,000 competency evaluations
are performed each year
Louisiana
The Path to a Finding of
Incompetent to Stand Trial (IST)/(ITP)
Defendant is Charged with a Crime
Issue of competency is raised
Judge orders a Sanity Commission Evaluation
Sanity Commission makes recommendation to court (see flow
chart)
Judge rules Incompetent to Proceed (ITP)/
Incompetent to Stand Trial (IST),
Three options
Hospital based restoration
90-Day Jail-Based restoration 648A(2)(a)
Community Based restoration 648A(1); 648(A)(2)(b); 648(A)(2)(c)
Time allowed for custody, care and treatment is limited
648(B)(1)
Once restored, criminal proceedings may commence
Determination of Unrestorable
• May be made:
– After hospital-based competency restoration
– After 90 day jail-based competency restoration
– Prior to receiving competency restoration
• Individual is remanded to DHH to determine need for civil
commitment within 10 business days
– Psychiatric evaluation is ordered
– Doctor makes recommendation
If Commitment Recommended
• DHH attorney files petition with court for:
• Hospital
• Nursing home
• Group home
• Forensic Aftercare Clinic
• Appropriate persons become involved to find recommended placement
If Commitment Not Recommended
• DHH attorney sends letter to court indicating that commitment
is not recommended
• Court orders jail to release individual
• DHH connects individual with local behavioral health clinic for
services
Louisiana Data
• 722 ordered to DHH as IST between 7/1/11 and 8/26/14
(includes hospital, jail-based and community restoration)
• 70% restored (505)
• 30% unrestored (217)
Louisiana Data
• 131 unrestored between 9/27/12 and 9/24/14
– 34% committed to hospital
– 10% committed for DD services
– 22% committed to other services
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Forensic Aftercare Clinic (10)
Forensic Supervised Transitional Residential Aftercare Program (3)
Nursing Home (2)
Group Home (1)
Residential Substance Treatment Facility (1)
Assertive Community Treatment (1)
Oregon’s Response to Those Defendants Who Are
not Restorable
The Path to a Finding of
Incompetent to Stand Trial (IST)
Defendant is Charged with a Crime
Defense Counsel raises competency concerns
Judge orders an “Aid and Assist” Evaluation
If evaluation determines unable to Aid and Assist, judge orders
restorative care (either at the hospital or in the community)
Once restored, criminal proceedings may commence (or
dropped)
If not restorable, criminal proceedings are dismissed
Oregon Data Perspective
Since 2010, Oregon has seen an 89% rise in its Aid and Assist
population, majority committed misdemeanors
In Oregon, 3 year maximum one can receive restoration
services at the state hospital; may include involuntary
medication
Oregon Addictions and Mental Health estimates approximately
10 patients per year are unrestorable who meet commitment
criteria (or as we say in Oregon - “never ables”). Our State’s
population is 3.9 million
Oregon’s SB 421 (2013)
• Driven by a high-profile murder case; workgroup/consensus bill
• Hybrid of insanity aquittee and civil commitment processes but
essentially removes defendant from the Criminal Justice System
and inserts patient into the Mental Health System
• Requires placement under the Psychiatric Security Review Board
(PSRB) jurisdiction for supervision and monitoring with the option
of indefinite 2 year re-commitment terms
• Includes Victim Rights
• Hearings Open to the Public
• Permits Board to place a client on conditional release
Commitment Criteria
LEGAL STANDARD: In order to be committed, the Court must find, by
clear and convincing evidence the 3 prongs:
1st Prong
• The person is “extremely dangerous”
– A person is extremely dangerous if he or she:
• (A) is at least 18 years of age;
• (B) is exhibiting symptoms or behaviors of a mental disorder
substantially similar to those that preceded their dangerous act;
• (C) because of their mental disorder, presents a serious danger to
the safety of other persons by reason of an extreme risk that the
person will inflict grave or potentially lethal physical injury on
other persons; and
• (D) unless committed, will continue to represent an extreme risk
to the safety of other persons in the foreseeable future.
2nd Prong
• The person suffers from a mental disorder that is resistant to treatment;
– A mental disorder is “resistant to treatment” if, after the defendant
receives care from a licensed psychiatrist and all reasonable
psychiatric treatment options have been exhausted, or after refusing
psychiatric treatment, the defendant continues to be significantly
impaired in his or her ability to make competent decisions and to be
aware of and control extremely dangerous behavior
– Mental disorder does not include someone who is diagnosed solely
with a developmental disability/anti-social/personality disorder
3rd Prong
Must have committed a“Dangerous Act” aka Crimes
• caused the death of another person;
• caused serious physical injury to another person by means of a dangerous
weapon;
• caused physical injury to another person by means of a firearm or
explosive;
• engaged in oral-genital contact with a child under 14 years of age;
• forcibly compelled sexual intercourse, oral-genital contact or the
penetration of another person’s anus or vagina; or
• caused a fire or explosion that damaged the protected property of another
or placed another person in danger of physical injury, and the fire or
explosion was not the incidental result of normal and usual daily activities.
Results of Commitment
• If the 3 prongs are found, the person is committed to the
jurisdiction of the Psychiatric Security Review Board for 2 years
• Entitled to an initial hearing at 6 months; primarily focused on
current placement
• Will not appear before the PSRB unless hearing is initiated by
the hospital or community provider
• Returns to court at the 2 year mark for consideration of
recommitment (could be indefinitely committed every 2 years)
Where Will the Client Receive Treatment?
• Probably the hospital at first
• Can be placed on Conditional Release by the Commitment
Court or PSRB at any time
– Likely at a Licensed Secure Residential Treatment Facility (Operated
by a Community Mental Health Agency)
– Must engage in treatment and follow conditions of release
– PSRB has revocation authority
Conditional Release (CR)
• Process for conditional release:
– Treatment and risk assessments conducted by
OSH
– OSH recommends CR
– Community reviews records, accepts for
placement and submits a plan with
recommended conditions
– Hearing, subsequent to four step review;
hospital MD and community MD attend
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Typical Conditions
• Treatment
– Twelve-step meetings
– Therapies (group, individual, DBT,
sex offender treatment)
– 20 hours per week of structured
activities that is up to the client and
case manager
• Interventions (probably always
supervised by staff):
–
–
–
–
Employment
Education
Volunteering
Peer Support
• Prohibited Conduct
– Alcohol Use
– Driving
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Oregon Stats (as of 9/1/14)
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Became Law in August 2013
2 Clients Under its Jurisdiction
1 male, 1 female
1 has been accepted for Conditional Release
– will be placed on conditional release at about the 1 year mark - a
faster rate than the typical “Guilty Except for Insanity” client
• So far, most hearings have been stipulated
Oregon Resources
• Oregon Laws 2013, Chapter 715
https://olis.leg.state.or.us/liz/2013R1/Measures/Text/SB421/Enrolled
• Oregon Administrative Rules 859-200-005 to 310
http://arcweb.sos.state.or.us/pages/rules/oars_800/oar_859/859_200.
html
Juliet Follansbee, 503-229-5596
Juliet.Follansbee@psrb.org
Questions/Discussion – How are other States
managing these individuals?