Competency Restoration

Evaluations of competency to stand trial are the most common source of referrals to forensic mental health practitioners. While the clear majority of those examined are viewed as competent to proceed, those found incompetent to stand trial (IST) may be subjected to treatment and training to enable them to proceed to trial, typically referred to as competency restoration. These individuals constitute the largest group referred for mental health treatment under the auspices of the criminal justice system, with several thousand persons hospitalized in the United States at any given time. Despite the significant variability in treatment and education efforts, as many as 9 in 10 persons originally found unfit are eventually adjudicated competent and proceed to disposition of the charges against them. There is a dearth of systematic research on the methods used to accomplish this result. Restoration efforts typically require no more than 4 months, and an increasing number of jurisdictions allow for outpatient treatment and training to minimize pretrial deprivation of liberty. Medication is often a key component of treatment for defendants with psychiatric illness. Prognosis is more guarded for restoration of cognitively impaired defendants.

Some commentators have questioned the propriety of the competency restoration programs provided by mental health practitioners. An alternative view holds that enabling impaired defendants to develop or regain the ability to participate in the resolution of their legal predicaments is ethically justified. This article summarizes the legal and ethical context of competency restoration efforts, the presenting problems that are typically the focus of treatment, treatment methods and programs, and the outcomes of restoration efforts.

Legal and Ethical Context

All U.S. jurisdictions provide for treatment of individuals found IST. Traditionally, this was presumed to involve commitment to a government-run facility for inpatient care. In Jackson v. Indiana (1972), the Supreme Court clarified that such commitment must be reasonably related, in duration and circumstances, to the purpose of restoring the individual to competency. Those found not restorable within the reasonably foreseeable future may be subjected to civil commitment. Surveys suggest that nearly half the defendants referred for restoration are placed in state hospitals and receive services typical for a civil patient population. Most of the remainder are confined in high-security facilities. In view of the significant deprivation of liberty entailed in inpatient restoration, a small number of jurisdictions have created provisions for outpatient competency restoration treatment. This innovation is also politically attractive, as the services are much less costly.

The majority of 1ST defendants appear to accept restoration treatment voluntarily, but significant legal and ethical conflicts arise regarding those who refuse court-mandated treatment. In Sell v. United States (2003), the Supreme Court considered the circumstances under which psychiatric medication could be administered against defendants’ objections, for the purpose of restoring competency. The court emphasized that alternative bases for involuntary treatment should be considered first, including treatment justified by danger to self or others or treatment through guardianship procedures. In the absence of these alternative justifications, the government could seek involuntary treatment solely to restore competency in limited circumstances—namely, if the proposed treatment was medically appropriate, substantially unlikely to have competency-impairing side effects, and necessary vis-a-vis less intrusive alternatives to accomplish an important governmental interest in bringing the defendant to trial. Nonmedication treatments have been viewed as less intrusive or objectionable and have not been a source of significant litigation.

Some have argued that mental health practitioners play an ethically conflicting role as treater and evaluator in the restoration process. This view has not gained wide acceptance. Those involved in competency restoration efforts note the importance of full disclosure to the defendant of the purpose of treatment and the procedural protections afforded by judicial hearings authorizing the treatment. They also note that it is in the defendant’s interest to regain competency in order to avoid potentially lengthy commitment and benefit from the panoply of procedural rights guaranteed a defendant proceeding to trial. Despite occasional negative commentary on the ethical propriety of mental health professionals’ participation in the restoration process, this role remains important in the administration of justice.

Focus of Restoration Treatment

Competency restoration is often implemented on an individualized basis, though some inpatient centers offer highly structured programs. The most common model combines these elements and involves individual treatment of any underlying mental illness combined with group education and practice modules and individual coaching. There is consistent evidence that defendants referred for non-restoration-specific, general psychiatric hospital care are significantly less likely to regain competency than those receiving care in a formal restoration program, either inpatient or community based.

Defendants referred for restoration can be broadly divided into those with primarily Axis I disorders and those with mainly cognitive limitations. In practice, many incompetent defendants exhibit multiple diagnoses, particularly involving personality disorders and substance abuse. While the latter factors are rarely priorities for immediate treatment, they may complicate restoration efforts. Given the overrepresentation of linguistic and cultural minorities among the defendant population, acculturation issues and language barriers can also be significant complicating factors. Individualized treatment planning is required to manage these varied needs.

Defendants with a major mental illness are typically treated with the implicit assumption that but for their psychiatric symptoms, they would be competent. Schizophrenic-spectrum illnesses are most commonly a focus of treatment—and less frequently, mood disorders. Symptoms including delusions, hallucinations, disorganized thought or behavior, and agitation often impair defendants’ understanding of their case and proceedings or their ability to collaborate with counsel, rendering them incompetent. Medication treatment to reduce these symptoms is often the mainstay of restoration efforts and may be seen as a prerequisite to other interventions that require greater cooperation and active participation by the defendant/patient. In affective disorders, increased attention and concentration and improved morale may be targets for pharmacological intervention. Consistent with case law focusing on “medical appropriateness,” any proposed treatment should comport with general standards of care for the diagnosis at hand and take into account the unique psychological, medical, and other needs and limitations of the incompetent defendant. Complete remission of symptoms is typically not required to meet the practical requirements for competency.

Educational programs appear more tailored to the needs of mentally retarded or otherwise cognitively impaired defendants. These programs typically involve formal testing and retesting to assess the defendants’ baseline functioning and progress. Most programs use one or more specific adjudicative competence measures and may structure a curriculum in accord with the theoretical underpinnings of that measure. Group format educational efforts are typically offered once or more per week, up to daily in some programs. These may entail lecture-like presentations, video-recorded demonstrations, role-playing, written exercises, and handouts. Group format training offers the advantage of not only efficient service delivery but also social learning of appropriate behavior for a courtroom setting and the opportunity to assess each defendant’s response to the increased stimulation of a small group setting.

Some commentators have expressed concern that mentally retarded individuals may appear to benefit from educational efforts while still lacking a more nuanced understanding of the charges and proceedings against them. This view holds that while even very limited individuals can be taught to repeat basic facts, they may yet lack the understanding and reasoning required to be a meaningful participant in the adjudication process. Practitioners should avoid “teaching to the test” used to measure progress. Alternative forms of assessment, such as open-ended questions and role-play may help differentiate those defendants who have learned basic facts from those who can apply that information in a meaningful way to the case at hand.

Restoration Success versus Failure

The clear majority of those referred for restoration are ultimately adjudicated competent, with some centers reporting success rates of 80% to 90%. Success appears most likely for individuals with functional psychiatric illnesses that are responsive to medication treatment. Not surprisingly, individuals who show clinically significant improvement in general psychopathology are more likely to be perceived as restored to competency. There is no consensus about the factors that are predictive of restorability in primarily mentally ill defendants, and attempts to derive predictions from clinical samples have failed to generalize adequately given the rarity of nonrestorability. Half or more than half the individuals with mental retardation or acquired cognitive deficits are not restored, consistent with the intractable nature of these disorders.

It is well settled that defendants must be competent at each stage of adjudication, from arraignment through imposition of sentence. “Recidivism,” which consists of a decline in functioning that warrants a return for additional restoration treatment before either trial or sentencing, is of concern in a minority of cases. These may involve the defendant’s refusal of medication after discharge from a treatment program. Anecdotal evidence suggests that other causes include medication being unavailable in a jail or during transportation to court, defendants being subjected to other conditions of confinement that undermine their prior progress, or substance abuse while on bail that results in an exacerbation of symptoms. It is generally assumed that a renewal of appropriate treatment will again result in restoration or competency.

Few state statutes provide specific time limits for commitment to either inpatient or outpatient restoration treatment. Federal law provides for a 4-month inpatient commitment, with possible extensions for cause, while some states tie duration of treatment to the potential maximum sentence for the underlying charges. Many jurisdictions set no limit. With or without formal limits, the typical successful restoration occurs in 2 to 6 months. While circumstances may warrant more extended efforts in some cases, the likelihood of success beyond 3to4 months appears diminished.

The minority of individuals who are persistently incompetent may be subjected to civil or “quasi-criminal” commitment in lieu of further criminal proceedings. While in some jurisdictions the procedures are identical to those in the regular civil commitment statute, in the majority of states and in federal courts, special commitment procedures apply, though these must provide due process protections similar in kind to those in the regular commitment statute. Some of these are narrowly drawn to focus on danger to others or property and frequently lack provisions for commitment based on danger to self or “grave disability.” The possibility of long-term commitment may discourage malingering about incompetency, particularly in jurisdictions where charges could be reinstated when the former defendant “recovers” sufficiently to warrant consideration for release.

References:

  1. Anderson, S. D., & Hewitt, J. (2002). The effect of competency restoration training on defendants with mental retardation found not competent to proceed. Law and Human Behavior, 26(3), 343-351.
  2. Bertman, L. J., Thompson, J. W., Waters, W. F., Estupanian-Kane, L., Martin, J. A., & Russell, L. (2003). Effect of an individualized treatment program on restoration of competency to stand trial in pretrial forensic patients. Journal of the American Academy of Psychiatry and the Law, 31(1), 27-35.
  3. Jackson v. Indiana, 406 U.S. 715 (1972).
  4. Miller, R. D. (2003). Hospitalization of criminal defendants for evaluation of competence to stand trial or for restoration of competence: Clinical and legal issues. Behavioral Sciences and the Law, 21, 369-391.
  5. Mumley, D. L., Tillbrook, C. E., & Grisso, T. (2003). Five year research update (1996-2000): Evaluations for competence to stand trial (adjudicative competence). Behavioral Sciences and the Law, 21, 329-350.
  6. Noffsinger, S. G. (2001). Restoration to competency practice guidelines. International Journal of Offender Therapy and Comparative Criminology, 45(3), 356-362.
  7. Sell v. United States, 539 U.S. 166 (2003).

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