September-October 2016

Evaluating defendants for ­competency and sanity

Matthew D. Faubion, M.D.

Forensic Psychiatrist and ­Clinical ­Director of the ­Kerrville State ­Hospital

Erin M. Foley, Ph.D.

Forensic Director of the Department of State Health Services in Austin

How experts examine defendants for competency to stand trial and for sanity at the time of the offense

Edward Smith is a (hypothetical) defendant facing charges for aggravated assault with a deadly weapon after hitting his mother with a baseball bat during an argument about going to see a psychiatrist. He has been unable to live on his own for some time and currently lives with his mother at her house. Mr. Smith is unemployed and relies on his Social Security income. He has previously been diagnosed with a severe mental illness and has been intermittently adherent to psychiatric care over the years.
    In this example, would you as a prosecutor consider raising the issue of competency when Mr. Smith’s file lands on your desk? If so, what factors suggest that the issue should be raised? If not, what additional information might lead you to raise the issue of competency? While a prosecutor may not have a specific legal duty to always bring a defendant’s mental health issues to a court’s attention, it is a prosecutor’s primary duty “not to convict, but to see that justice is done.” This overarching directive makes our questions above particularly relevant for today’s prosecutor.
      Evaluating a defendant for either competency to stand trial or sanity requires knowledge of both the criminal justice and mental health systems, as well as an understanding of the psychological and legal factors unique to a defendant’s particular case. In general, competency evaluations examine current functioning as it relates to legal proceedings while insanity evaluations consider one’s functioning at the time an offense occurred. For most individuals, including those with severe and persistent mental illness, competence to stand trial is not an issue. Nationally, competency evaluations occur at a rate of 50,000–60,000 per year, with only 20 percent of those evaluated deemed incompetent to stand trial. Claims of insanity are even less common, with data suggesting they occur in only 1 percent of felony cases and are successful roughly 25 percent of the time.
    While the question of competency is not an issue for most individuals facing trial, it is helpful to understand when and how the question of competency should—or could—be raised. Furthermore, it is important to know when an insanity evaluation might follow a competency evaluation and how both sanity and competency are addressed within the mental health arena. Texas Code of Criminal Procedure Chapters 46B and 46C outline the many details associated with competency to stand trial and the question of sanity. Using Edward Smith as an example, we will explore some of these elements, beginning with the issue of competency.

Competency evaluations
Competency evaluations are here-and-now assessments. They examine the defendant’s understanding of the charges, his understanding of potential consequences of the criminal proceedings, and his ability to consult with an attorney. Competency evaluations are guided by CCP Chapter 46B, which establishes specific criteria that must be addressed, as well as the qualifications of the examiner necessary to perform the evaluation. A qualified expert is either a state-licensed psychiatrist or psychologist who has the specialized forensic certification, training, or experience outlined in the statute.
    Issues of competency may be raised by the defense attorney, prosecutor, or trial court. When competency is called into question, the individual raising the issue submits a brief to the court detailing probable cause for an evaluation. In the case of Mr. Smith, several key pieces of information might raise the issue of competency: his history as it relates to psychiatric care, his reliance on his own Social Security income, his inability to live on his own, and the context in which the assault allegedly occurred. We should also look beyond the limited information provided in our case example to any behaviors that might significantly interfere with his work with counsel or his ability to participate in courtroom proceedings.
    If the issue of competency is raised, the court determines through informal inquiry whether there is evidence from any source (e.g., observations of the defendant’s behavior or information from a credible source that the defendant may be incompetent) to support a finding of incompetency. Should there be a determination that evidence exists to support a finding of incompetency, the court will order a formal competency evaluation.  
    If the court orders a competency evaluation, a qualified expert will be appointed to examine the defendant. Competency evaluations consider information specific to the individual being assessed; therefore, the information requested by an expert evaluator may vary from one case to another. At a minimum, the evaluator will likely request the incident or police report associated with the offense, jail records detailing any psychiatric or medical care received, and any records of the defendant’s behavior while in the jail. This information focuses on current functioning and is consistent with the notion that a competency evaluation is not necessarily a deep review of someone’s history.
    Competency evaluations often occur in jail settings and generally take several hours to complete. In our case example, evaluating Mr. Smith should, at a minimum, take into account each of the factors identified in statute:
•    his capacity to rationally understand the charge brought against him and the potential consequences of the pending criminal proceedings;
•    his ability to disclose relevant facts, events, and states of mind to his attorney;
•    his ability to engage in reasoned decision-making regarding legal strategies;
•    his understanding of the adversarial nature of criminal proceedings;
•    his ability to behave appropriately in the courtroom; and
•    his ability to testify.
    In addition, Mr. Smith’s evaluation should include an assessment of whether he has a mental illness or intellectual disability and, if so, whether the identified condition has lasted or is expected to last for at least one year.
    When evaluating Mr. Smith, the qualified expert would assess the level of impairment resulting from any identified mental illness or intellectual disability as well as the specific impact this illness or disability has on his capacity to reasonably and rationally consult with his attorney. It was mentioned previously that Mr. Smith has received psychiatric care—if he is currently taking psychoactive or other medications, the evaluator should also examine whether the medication is necessary for Mr. Smith to maintain competency and what effect, if any, the medication has on his appearance, demeanor, or capacity to participate in court proceedings.
    Once an assessment is complete, the information is compiled into a report and presented to the court for consideration. Proceedings from that point on are governed by Subchapters A (General Provisions) and C (Incompetency Trial) of CCP Chapter 46B.
    It is important to note that mental illness is dynamic and may be subject to periods of exacerbation when under stress (such as that experienced while in a jail setting), so individuals who are deemed competent at one point in time may need to be reassessed immediately before trial to address potential shifts in functioning.  Defendants should be re-examined by the forensic evaluator if there has been any suggestion of change in mental status. Counsel should have a low threshold for requesting that the expert briefly evaluate the defendant immediately before trial to ensure that there has been no deterioration of his competency for trial.

A finding of incompetence
Mr. Smith was charged with aggravated assault with a deadly weapon. If found incompetent to stand trial, he would be committed to treatment to restore his competency to proceed to trial. In Texas, there are several options for restoring a person’s competency. Individuals may be committed to an inpatient or residential care facility (e.g., a state-supported living center) or released on bail and restored to competency in an outpatient setting. The setting is determined by the presiding judge and takes into consideration factors such as risk of unauthorized departure, safety to the community, and clinical need. Mr. Smith’s offense (aggravated assault with a deadly weapon) is among those requiring commitment to a Maximum Security Unit (MSU) designated by the Department of State Health Services (DSHS). Currently, two state-operated psychiatric hospitals have designated MSUs, North Texas State Hospital in Vernon and Rusk State Hospital, so Mr. Smith would receive treatment and competency restoration services in one of these facilities. His initial commitment would be for 120 days. Had he been committed for an offense other than one requiring MSU admission, he would have been ordered to a non-maximum security facility (i.e., a state-operated psychiatric hospital, contracted facility, or state-supported living center) or outpatient competency restoration program.
    National statistics reveal high rates of competency restoration, with approximately 75–90 percent of individuals restored to competency within the first 180 days of admission to services. In Texas, initial competency restoration commitments are mandated not to exceed 60 days for a misdemeanor or 120 days for a felony. The head of the treatment facility may request one 60-day extension of the initial commitment period if it is believed that the individual can attain competency during that additional 60-day timeframe. Importantly, individuals may not be committed to a hospital or other facility or program for a cumulative period that exceeds the maximum sentence of the offense for which he was to be tried (in Mr. Smith’s case, 20 years).
    Mr. Smith would remain in the MSU until restored to competency or until he passes the state Dangerous Review Board (DRB). The DRB is a statutorily defined multidisciplinary group that evaluates whether a person presents as manifestly dangerous (i.e., a danger to others and in need of placement in an MSU to continue treatment and protect the public). If reviewed by the DRB and found not manifestly dangerous, Mr. Smith could transition to another state facility for continued competency restoration in a less restrictive setting. If found dangerous, Mr. Smith would remain in the MSU for continued treatment and would be presented again to the DRB if he improved or every six months irrespective of clinical status. As treatment progresses, additional competency evaluations would be conducted by forensic evaluators, and reports would be prepared for the court’s consideration in accordance with requirements laid out in CCP Chapter 46B.

Sanity evaluations
In our example, Mr. Smith was found incompetent to stand trial and ordered into inpatient care. If, however, Mr. Smith had been found competent to stand trial, there is a possibility that a separate report regarding sanity could be obtained. Of course, it is important to note that the insanity defense is rarely utilized.
    Sanity evaluations are governed by Subchapter C (Court-Ordered Examination and Report) of CCP Chapter 46C. In those instances when insanity is a potential consideration, competency and sanity reports are often ordered together. A qualified expert can give an opinion regarding sanity, but only if the individual is first deemed competent to stand trial. In these instances, the expert will prepare two separate reports (i.e., one competency report and, if competent, a second sanity report). Information presented in a competency hearing is much more limited in nature than information included in a sanity report and is statutorily excluded from introduction in the case-in-chief.
    Unlike competency evaluations, which focus on current functioning, sanity evaluations are retrospective assessments. They evaluate one’s ability to differentiate right from wrong at the time of an alleged offense (which often occurred months, if not years, in the past). As such, this type of assessment typically requires a greater amount of information to best ascertain the defendant’s mental state at the time of the alleged offense. The evaluator may request:
•    police reports;
•    witness statements (particularly those describing others’ accounts of the defendant’s actions and demeanor);
•    mental health records to establish the nature of the defendant’s mental illness;
•    collateral information from those who had contact with the defendant;
•    medical records, including drug or toxicology screens following arrest; and
•    an interview with the defendant.
    In addition, other records may be necessary depending on the nature of the offense (e.g., an autopsy report, assessment of the victim’s injuries, or school records). In any case, the retrospective nature of the sanity assessment generally requires more information and more of the evaluator’s time to prepare the necessary report.

Not Guilty by Reason of Insanity (NGRI)
Assume that Mr. Smith’s insanity defense was raised successfully. Further, imagine that following his acquittal, Mr. Smith was committed to inpatient care in accordance with procedures outlined in CCP Chapter 46C. This order of commitment would expire on the 181st day following the date it was issued, and the court would determine annually whether to renew Mr. Smith’s commitment order. Similar to what was described for competency restoration commitments, the total commitment period for any person found not guilty by reason of insanity (NGRI) cannot exceed the maximum sentence had he been convicted of the crime. This total commitment period may include time in an inpatient or residential setting as well as time in an outpatient setting. Typically, individuals on an NGRI commitment stay in care for longer than those on a commitment for competency restoration. Looking at only the inpatient hospital stays for Texans deemed NGRI, as compared to those found incompetent to stand trial (IST), we find that the average length of stay in 2015 was 615 days for the NGRI population and 177 days for the IST population.
    Treatment for persons deemed NGRI is targeted toward those symptoms of mental illness associated with dangerousness. Additionally, treatment focuses on vocational rehabilitation and building skills necessary for one to live safely and productively in the community. For individuals committed to inpatient care, release from a psychiatric hospital takes into consideration factors related to ongoing treatment needs, potential dangerousness, and community safety. Prior to transitioning out of an inpatient hospital setting, individuals found NGRI will have a treatment team recommendation that they are suitable for community release; a forensic consultation detailing their community treatment needs and violence risk; and, potentially, testimony from treatment providers in case of a contested release. Defendants are released only with the permission of the court.
    As a general rule, persons deemed NGRI stay in the hospital until their treatment needs can be met in a community setting and they are no longer dangerous. Texas does not have conditional release for persons found NGRI, and there are limited transitional care options for those leaving inpatient settings. Most often, NGRI acquittees are released on outpatient commitments that must be renewed annually. If an individual’s outpatient commitment is not renewed, then he is no longer subject to the court. Those released on an outpatient commitment may be discharged to a boarding home under the court’s supervision with psychiatric care rendered by the local mental health authority or other mental health service providers in the community. These mental health providers periodically report to the court on the individual’s condition, although the mechanism for this reporting varies widely across the state. If an individual currently under an outpatient commitment deteriorates and presents as a danger to others—or otherwise meets civil commitment criteria—he can be converted from an outpatient to an inpatient commitment for continued treatment in a more structured setting.

A defendant’s experience of mental illness can significantly impact his interactions with the legal system. Forensic mental health evaluators can assist in legal proceedings by helping the parties involved navigate complex issues that may arise surrounding questions of competency and sanity. If you have any questions, please feel free to contact us at [email protected] (or 512/ 206-5237) and Matthew.Faubion (or 830/258-5287).

1  Tex. Code Crim. Proc. Art. 2.01.

2  Mossman D., Predicting restorability of incompetent criminal defendants. Journal of the American Academy of Psychiatry and the Law, 35: 34-43, 2007.

3  Tex. Code Crim. Proc. Art. 46B.022.

4  Tex. Code Crim. Proc. Art. 46B.004.

5  Tex. Code Crim. Proc. Art. 46B.024.

6 Id.

7  Tex. Code Crim. Proc. Ch. 46B, Subchapter D (Procedures after Determination of Incompetency).

8  Morris DR and DeYoung NJ. Long-term competence restoration. Journal of the American Academy of Psychiatry and the Law, 42:81-90, 2014.

9  Procedures for extended commitments outlined in Tex. Code Crim. Proc. Ch. 46B incorporate the civil commitment standards set forth in the Health & Safety Code; see Subchapters D–F for details.

10  Tex. Code Crim. Proc. Art. 46B.0095; see that article and Art. 46B.010 for procedures applicable after the maximum commitment period has run.

11  Tex. Code Crim. Proc. Art. 46B.105.

12  Tex. Penal Code §8.01.

13  Department of State Health Services, Division of Mental Health and Substance Abuse Services, Office of Decision Support, June 2016.