Evaluations of competence to stand trial are evolving amid a national "competency crisis"

Across the United States, court orders for competence to stand trial (CST) evaluations and competence restoration services have been increasing much more rapidly than states can provide these services, prompting what has been called a national "competency crisis." The challenge in providing timely competence restoration services has, in several jurisdictions, prompted a change in competence evaluations. Evaluators are more often required to address broader clinical issues-such as recommending placement or addressing the urgency of hospitalization-rather than addressing only CST. This marks an evolving practice in forensic evaluation, which moves evaluators beyond the very narrow forensic question of competence and into more traditionally clinical recommendations. We describe several state examples of changing practice in order to highlight the initial barriers, and potential benefits, to addressing additional clinical issues in competence evaluations, amid a national competence crisis.

Theory and Application of Neuropsychological Underpinnings of Adjudicative Competency

In their article, Aveson and colleagues postulate a model for understanding the neurocognitive underpinnings of competence to stand trial, and they present evidence to support that model for two specific facets: social intelligence and auditory verbal (episodic) memory. This commentary attempts to extend those findings by outlining specific interventions and assessment methods in the inpatient restoration setting that focus on strengthening these capacities and connecting them to the psycho legal context. It echoes the work of Aveson et al. that court is a transactional, social context heavily dependent on auditory processing and verbal comprehension and expression and suggests that restoration programs ought to incorporate interventions and assessment tools that address such faculties. Further refinement of our understanding of competence and its constituent components will enable us to better allocate scarce resources throughout the system, to tailor restoration programming to the needs of each individual defendant, and to aid defendants through restoration programming to develop the skills to take a more involved, collaborative role in the process.

Underfunding of Psychiatric Services for the Civilly and Criminally Committed

As illustrated by the State of Oregon, a lack of inpatient psychiatric resources for civil commitment and restoration of competency to stand trial has become an increasing problem. In California, the government of Los Angeles County has studied this problem and identified potential solutions. The proposed solutions not surprisingly involve increased resources, including additional inpatient psychiatric beds. Despite recognition of a potential solution, however, sufficient resources have not yet appeared in Los Angeles County. The study of the civil and criminal commitment systems for individuals with mental illness in Oregon and Los Angeles County reveals considerable overlap between these systems and suggests that the two systems be considered as a part of a single mental health system adversely affected by a variety of factors such as homelessness, substance use, and the COVID-19 pandemic.

Assessing fitness for trial in a Children's Court

In 2016, Queensland introduced changes to mental health legislation, providing additional powers to Magistrates in relation to soundness of mind and fitness for trial. This article explores the application of fitness for trial to young people in the Magistrate's Court. It begins with a discussion of fitness for trial broadly, exploring issues with the current legal test, and discusses the unique application of the test in Queensland. By highlighting the inherent vulnerabilities of young people involved in the legal system, we identify the gaps and challenges of assessing fitness for trial with this population. In conclusion we recommend further exploration of alternative models for resolving questions of fitness for trial for young people involved in the criminal justice system.

Profiles of juveniles with sex offense charges referred for competence evaluations

Juveniles referred for adjudicative competence evaluations make up a subset of youth involved in the juvenile justice system. Among those referred for adjudicative competence evaluations, a significant number involve youth with current or past charges for sexual offenses. This study examines the profiles of youth with sexual offense charges who have been referred for competence evaluations at a state psychiatric hospital for children and adolescents. Differences between the characteristics of youth with and without sexual offenses were explored, and predictors of competence opinions were examined among the subset of youth with current or prior sexual charges (juveniles with sexual offenses, or JSOs). Findings indicated that youth with sexual offenses have several demographic, cognitive, clinical, and legal differences from youth without sexual offenses. Although youth with sexual offenses were less likely to be opined competent, presence of a sexual offense was not a predictor of competence opinions after controlling for other factors. Predictors of competence among JSOs were found to be similar to those among youth referred for competence evaluations in general. Primary diagnosis of an autism-related disorder was a unique predictor of being opined not competent among the JSO subgroup, but not the overall sample. Implications for practice, policy, and research are discussed.

A Literature Analysis of the Inventory of Legal Knowledge

The Inventory of Legal Knowledge (ILK) is a feigning measure of growing usage, familiarity, and controversy in research and practice. A comprehensive review of a smaller literature base yields recurring themes in the ILK literature. There were mentions of feigned lack of legal knowledge tending to associate with feigned psychopathology, concerns about false positives at or around the ILK cutoff score, and potential complications when the ILK is administered to individuals with very low intellectual functioning. Possible underestimation of both false positives and false negatives suggests there may be a need for a revised edition of the measure, further item discrimination, and a meta-analysis of extant research studies with similar designs. An ILK-2 with required user training, as well as a lower cutoff score, an indeterminate range, and weighting of scores in association with criminal history may increase the measure's validity, robustness, and utility in larger assessments of malingering.

Challenges to Reforming the Competence to Stand Trial and Competence Restoration System

Many mental health and justice professionals have noted that the system that manages both competence to stand trial (CST) evaluation and competence restoration (CR) processes in criminal cases is in crisis. Public mental health services often are inundated with court referrals and are challenged to address them in a timely manner, resulting in waits for competence-related services for people in jail as well as substantial risks to criminal defendants for whom competence issues are raised. In this review, the authors describe the current CST-CR system and offer preliminary solutions to its challenges. In addition, they examine published works on the legal foundation of CST to help support the basis for this analysis. The results of this review point to the need to more effectively address the complexities of the CST-CR systems and highlight the importance of collaboration across legal and clinical systems. Guidance to states can be best facilitated by support for empirical research on the individual- and system-level factors that contribute to the waitlists and system paralysis that have a negative impact on people with serious mental illness in the criminal justice system.

Evaluation and Restoration of Competence to Stand Trial: Intercepting the Forensic System Using the Sequential Intercept Model

The sequential intercept model (SIM) is used to reduce the penetration of persons with mental illness and substance use disorders in the criminal legal system. Its framework recommends identifying individuals with mental illness at various decision points of criminal case processing, from arrest to return from incarceration, so that they can be diverted toward treatment rather than permeate deeper into the criminal justice system. Communities frequently use the model to augment and inform jail diversion services. Despite the model's widespread adoption, individuals with serious mental illness, intellectual and developmental disabilities, and disorders affecting neurocognition and behavior are often found ineligible for such diversion because their competence to stand trial (CST) warrants evaluation, which effectively pauses their criminal case processes. If found incompetent to stand trial, these people can be ordered for competence restoration treatment, creating a pathway that is different from jail diversion options. Traditional community mental health services and courts await resolution by the "forensic system" before linking these individuals to needed services, and often these linkages are lacking. This review aims to describe and demystify these forensic processes and to highlight the potential use of the SIM to decrease jail stays and maximize community service connections for individuals with some of the most impairing mental health conditions who are involved in the justice system and for whom diversion is a safe option. The authors offer specific examples of intercept opportunities at each step involved in evaluations of CST and in the competence restoration processes.

Effects of the Presser and legislative criteria on classifying New Zealand's fitness to stand trial court outcomes

New Zealand's legislation mandates the inclusion of several legislative criteria to assist in the determination of defendants' fitness to stand trial (FTST). However, the unlegislated Presser criteria have been described as useful to discriminate between defendants' fitness without formal research to identify them as such. The sample consisted of 252 defendants' FTST forensic assessments between 2005 and 2015 with a mean age of 30.1 years, where 87.7% were male. Defendants were primarily from Māori descent (37.3%), New Zealand European (34.1%) and Pacific Island descent (17.9%). The authors found that all Presser and legislative criteria significantly predicted whether the defendant was fit to stand trial (FST). Both the Presser and legislative criteria have excellent area under the curve (AUC) statistics. However, the Presser criteria, compared to the legislative criteria, improved specificity of court judgements. The Presser criteria may therefore assist in correct FTST court decisions, particularly for borderline-fit defendants.

Cognitive functioning and adjudicative competence: defendants referred for neuropsychological evaluation in a psychiatric inpatient setting

OBJECTIVE

A paucity of peer-reviewed research exists regarding the relation between cognitive functioning and adjudicative competence, despite increasing awareness of cognitive deficits associated with serious mental illness. This retrospective study sought to add to and expand upon existing research by considering performance validity and court determinations of competence, when available.

METHOD

We compared demographic and cognitive variables of a group of defendants with presumed valid testing admitted to an inpatient psychiatric facility for evaluation of adjudicative competence and referred for neuropsychological evaluation (n = 45) and compared individuals determined by the evaluator and/or the court to be competent (n = 30) and incompetent (n = 15).

RESULTS

Defendants who were incompetent were more likely to be diagnosed with a cognitive disorder, with a medium effect size. There was a difference in tests of immediate and delayed memory as measured by the Repeatable Battery for the Assessment of Neuropsychological Status (RBANS), with medium to large effects, and high delayed memory scores were helpful in ruling out incompetence (Negative predictive power = 85.71%).

CONCLUSIONS

These results provide support for the relationship between cognitive functioning and trial competence, particularly at high and low levels of performance.

Juvenile Fitness for Trial: Lawyer and Youth Justice Officer Professional Survey

Fitness to stand trial is a necessary requisite for a fair trial in judicial proceedings. Research within Australia is limited regarding juvenile fitness for trial, though recent evidence indicates that juvenile offenders are half as likely to be found unfit to stand trial compared to adult offenders. The study surveys lawyers (n = 20) and youth justice workers (n = 20) about their experiences with juveniles in the Queensland youth justice system. Over the preceding 12 months, 133 juveniles were identified as potentially unfit. Intellectual impairment (37%), immaturity (28%), and mental illness (26%) were the most prevalent conditions. Indigenous Australians were rarely referred for mental health evaluation. In comparison, juveniles (mostly non-indigenous) with mental illness and intellectual impairment were significantly more likely to be referred for evaluation. Pragmatic and tactical reasons were most frequently given for non-referral to the Queensland Mental Health Court, which at the time decided fitness.