trial competency restoration; the thief of...
TRANSCRIPT
Trial Competency Restoration;
The Thief of Justice?
Shannon Bader, Ph.D., ABPP
Chief Forensic Examiner
MHM Services, Inc.
Department of Corrections, Medical and Forensic Services
Goals for Today
� Brief primer of trial competency
� Provide some New Hampshire competency restoration figures
� Discuss the real outcome of these competency restoration cases
� Examine examples of best practices for competency restoration services
Trial Competency 101
� Dusky v. United States (1960)- established the
minimum standard for competency to proceed with
prosecution, 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”
� Bottom line: is the person capable of participating
in their own trial
Trial Competency 101
� The person has to be able to;
� Understand his/her charges
� Know the role of the judge, defense attorney
� Appreciate the evidence against him/her
� Weigh the advantages and disadvantages of legal decisions
� Collaborate with his/her attorney
Trial Competency 101
� Pre-trial
� One of our unassailable rights
� Usually incompetent due to intellectual deficits,
severe psychiatric illness, or cognitive disorders
� Competency in the news
� Competency to stand trial is different from insanity
The Office of the Forensic Examiner
� A defense attorney, prosecutor or judge raises concerns about competency
� The OFE is court ordered to evaluate the person and provide a written
opinion about competency to the court
� These psychological evaluations are specialized assessments by
psychologists or psychiatrists who have received additional training in
answering psychological questions for the courts
� The report must answer the following questions,
� Is the defendant competent to stand trial?
If yes, defendant proceed to his/her case.
If no, can he/she improve within one year time?
Competency Decisions
Competent To Stand Trial?
Yes No
Can the person get better in 12 months?
Proceed with trial. No. Not Restorable
Yes. Restorable
A restorable defendant is re-evaluated by the OFE in one years’ time to assess
whether he/she is now ready to proceed with the case.
Restoration
� If the evaluator says that the defendant is restorable, this means that there
is a significant likelihood that the person could be ready to go to court if
they have the appropriate psychiatric treatment.
� In New Hampshire, if a person is found to be incompetent to stand trial and
restorable, he/she has 12 months to improve
� If the person does not improve in that time, the charges are dropped
OFE Restoration Figures
July, 2015- October 2016
485 total competency evaluations completed by the OFE
Of these, 50 were restoration evaluations
22 (44%) people were restored to competency
28 (56%) people were not restored to competency
Of the 50 restoration evaluations, 29 involved felony charges
13 (45%) people were restored to competency
OFE Restoration Figures
� In NH, 44% of incompetent but restorable defendants are being restored
� Nationwide, the research shows that 75-90% of incompetent but restorable
defendants are being restored (Zapf & Roesch, 2011)
� Competence restoration is typically achieved within six months of restoration efforts
� Defendants that could be ready for court are not getting restored in NH
Why does this matter?
� If the person is found not restorable, the charges are dropped
� 56% of the people who could get well enough to complete their court cases
are not actually finishing the criminal justice process
� Is NH’s lack of competency restoration a barrier to justice?
Why does this matter?
� Victims of the alleged crimes
� No ‘day in court’
� The community as a whole
� Against the peace and dignity of the State
� The defendants themselves
� Innocent and proven guilty
Current NH restoration process
� A judge orders a restoration plan that often includes taking medication and
following bail conditions (such as no drugs or alcohol)
� The defendant is left to secure appropriate treatment on his/her own
� If it is determined that the person is not following the restoration plan, the
only recourse is jail
� The defendants who do well within this current system are already
accessing social services, have family support, or are under probation or
pre-trial services supervision
What now? How can NH improve?
� The most common form of treatment for restoration is psychotropic
medication administration and adherence
� Among defendants willing to take medication, they typically have access to medication
through the community mental health center
� Unfortunately, some MHC’s have lengthy wait lists and defendants are required to wait for
initial appointments
� It may be worth considering an accelerated appointment system for court involved
individuals
� Medication alone is often insufficient to restore competency
What now? How can NH improve?
� But there are other best practices for competency restoration besides
medication that are lacking statewide
1. Restoration Treatment Programs
2. Assigned Case Managers
3. Frequent Status Updates to the Court
4. An Inpatient Option for Restoration
From The National Judicial College
What now? How can NH improve?
1. Restoration Treatment Programs
At this time, there are no formal restoration treatment providers in
NH. Treatment has ranged from structured group sessions focused on
legal problem-solving and educational videos to more individualized
treatment focused on specific competency deficits.
2. Assigned Case Managers
A forensically trained case manager to assist the
defendant in accessing needed services, track the
progress of the defendant and provide status
updates to the court.
What now? How can NH improve?
3. Frequent Status Updates to the Court
Court updates from a consistent source that can monitor the
effectiveness of the original restoration plan.
4. An Inpatient Option for Restoration
Competency restoration should occur in the least-restrictive setting
possible. However, there is no forensically-focused inpatient settings
in NH unless the person is deemed dangerous. Best practices argue a
need for a forensic setting for thorough evaluation when pathology (or
malingering) is unclear and when the individual lacks capacity to
consent to medication necessary for restoration.
What now? How can NH improve?
� What about defendants who do not want to take psychiatric medication?
� There is no current mechanism to encourage defendants who do not want to take
medication , they remain incompetent
� Sell v. United States (2003) , antipsychotic drugs can be administered against a defendant’s
wishes for the purpose of restoring competency but only in rare, limited circumstances
� This remains an open, hotly debated topic nationwide
Questions?
These small changes could result in greater justice for crime victims, mentally-ill
defendants and society as a whole. By using our existing mental health
infrastructure, New Hampshire could greatly improve competency restoration
services and increase the restoration rates to the national rates.