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.