III. COMPETENCY REPORT

A. Contents of Report

Best Practice: It is a best practice for the competency report to set forth, at a minimum, the information set forth below. Note that some state statutes may require more information be included in the report.

1. Summary of the Evaluation, Including a Current Diagnosis, if any, of the Defendant's Mental Disorder and a Summary of the Defendant's Mental Status

Best Practice: It is a best practice for the mental health professional to include, at the beginning of the competency report, a brief summary of the evaluation, including basic information identifying the defendant; current condition of the defendant; and the evaluator's opinion as to the competency of the defendant.

Discussion: A brief summary of the report at the beginning will assist the court and counsel.

2. Statement of Purpose

Best Practice: It is a best practice for the mental health professional to include in the report a statement as to the purpose of the evaluation.

Discussion: It is a best practice for the statement of purpose to include the behavior of the defendant which gave rise to the issue of defendant's competency to stand trial or plead; charge(s) pending against the defendant; legal standard for determining competency; and source of referral for the evaluation. It is also a best practice for the evaluator to state whether, prior to the evaluation, he or she informed the defendant of the purpose and nature of the evaluation, and to whom the report will be provided.

 

3. Nature of Evaluator's Contacts with the Defendant and Counsel

Best Practice: It is a best practice for the mental health professional to include in the report a description of the evaluator's contacts and interviews with the defendant, conversations with the prosecutor, and a description of any non-privileged information obtained from the defense attorney.

Discussion: Competency to stand trial or plead is not just the mental capacity to understand the nature of the legal process, but also the capacity of the defendant to assist counsel in his or her defense. Dusky v. United States, 362 U.S. 402 (1960) (per curiam); Drope v. Missouri, 420 U.S. 162, 171 (1975); Godinez v. Moran, 509 U.S. 389, 401-02 (1993). Defense counsel may be in the best position to observe signs or symptoms the defendant exhibits relative to his or her ability to meet the competency standard—especially as to whether he or she has the sufficient present ability to consult with his or her lawyer. Providing any non-privileged information to the evaluating mental health professional may assist him or her in focusing on the particular aspects of competency that are in question, e.g., what led the defense, prosecution, or court to raise the issue of competency. This will assist the evaluating mental health professional in assessing whether the defendant has the requisite functional abilities to be mentally competent and, if not, to determine whether there is an underlying mental disorder affecting the defendant's competency to proceed.

It is a best practice for the evaluator's statement as to the nature of contacts and interviews with the defendant to include any non-privileged information that is also relevant, such as the date, time, length, and place and presence of any other individuals and their purpose or potential effect on the evaluation, e.g., whether defense counsel or the prosecutor attended the evaluation, and, if so, the role he or she served. To the extent not privileged, it is also a best practice for the description of contacts with defense counsel to include counsel's general impressions of the defendant's ability or inability to meet the legal criteria for competency.

 

4. Statement of Information Accessed for Evaluation

Best Practice: It is a best practice for the mental health professional to include in the report a list of the information gathered, and documents and records reviewed, for purposes of the evaluation.

Discussion: It is a best practice for the mental health professional to consider third-party information in conducting a competency evaluation and to list such information in the report. It is a best practice for sources of data to include the following, when applicable:

• police reports, including statements from an investigator or someone who dealt directly with the defendant near the time of the alleged offense or the arrest;
• criminal and civil legal records, including criminal convictions and the dates of any civil commitments;
• mental health, medical, and hospital admissions records, including medications prescribed;
• mental health screenings, competency evaluations and/or other mental health evaluations or psychological testing, including results;
• history of competency restorations, including type and length of treatment;
• educational, military, and employment records;
• interviews and consultations with third parties, including defense counsel, relatives, and jail personnel; and
• any other information, data, or collateral sources obtained or reviewed for the evaluation.

While it is a best practice for the mental health professional to provide a thorough summary of relevant information in the report, it is also a best practice for the evaluator to refrain from disclosing any statements made by the defendant, or information gathered, during the competency evaluation that pertain to the alleged offense(s) and issues of guilt. It is a best practice for the evaluator to not include any information that may pertain to collateral issues, such as criminal responsibility or a potential insanity defense.

5. Method of Evaluation

Best Practice: It is a best practice for the mental health professional to describe in the report the methodology utilized to evaluate the defendant, including the method(s) utilized and test(s) administered.

 

6. Analysis of the Competence of Defendant to Stand Trial or Plead Using the Current Legal Standard

Best Practice: It is a best practice for the mental health professional to include a substantive analysis of the defendant's competence to stand trial or plead using the current legal standard in the jurisdiction.

Discussion: In Dusky v. United States, 362 U.S. 402 (1960) (per curiam), the Supreme Court set forth the minimum standards to determine whether a defendant is contempt to stand trial: (1) whether he or she has sufficient present ability to consult with his or her lawyer; (2) with a reasonable degree of rational understanding; and (3) whether he or she has a rational as well as factual understanding of the proceeding against him or her—it is not enough that he or she is oriented to time and place and has some recollection of events. Id. Otherwise said, "a person whose mental condition is such that he [or she] lacks the capacity to understand the nature of the proceedings against him [or her], to consult with counsel, and to assist in preparing his [or her] defense may not be subject to a trial" or plead guilty. Drope v. Missouri, 420 U.S. 162, 171 (1975); Godinez v. Moran, 509 U.S. 389, 401-02 (1993).

7. Opinion as to Whether Defendant is Likely to Be Restored to Competency Within Reasonable or Statutorily Determined Period of Time

Best Practice: It is a best practice for the mental health professional to include in the report an opinion as to whether the defendant is likely to be restored to competency and, if so, if the defendant is likely to be restored to competency within a reasonable or statutorily determined period of time.

Discussion: It is a best practice for the evaluator to include an opinion as to whether the defendant is likely to be restored to competency; it is also a best practice for that opinion to include the timeframe within which the defendant is likely to be restored to competency so that the court and counsel can determine whether such restoration would be in accord with the Supreme Court decision in Jackson v. Indiana, 406 U.S. 715 (1972) and applicable statutory law. However, if the evaluator cannot reasonably determine at that point in time whether the defendant is likely to be restored to competency, it is a best practice for the mental health professional to report his or her opinion as soon as can be reasonably determined. If it is the evaluator's opinion that the defendant can be restored to competency, it is also a best practice for the mental health professional to include a recommendation as to whether the defendant can be restored to competency with a treatment regimen and/or psychoeducational training.

 

8. Recommendation as to Where Defendant Should Be Restored, if Determined Incompetent

Best Practice: It is a best practice for the mental health professional to include in the report a recommendation as to the best treatment setting or facility for the defendant to be restored to competency, taking into account the least-restrictive setting consistent with the public safety and treatment needs of the defendant. It is also a best practice to recommend that cognitively impaired defendants be restored in specialized settings or units, if available.

Discussion: The evaluating mental health professional is well-suited to make a recommendation as to the treatment setting or facility where the defendant is most likely to be restored to competency based upon his or her evaluation and assessment of the defendant and with knowledge of the facilities available. It is best practice for such a recommendation to include factors such as the history of any past treatment of the defendant; whether he or she has been amenable to treatment in the past; whether the defendant is amenable to treatment at the present time; and whether he or she may potentially need involuntary medication once placed in a treatment setting. For example, hospitalization may be contra-indicated for some defendants, such as those who are developmentally delayed or have cognitive issues. It is a best practice for ultimate decision as to where the defendant should be ordered for restoration treatment to be made by the court.

 

9. Summary of Assessment Conducted for Potential Malingering

Best Practice: It is a best practice for the mental health professional to include in the report a summary of an assessment conducted for malingering if there was a clinical suspicion and methodology used to confirm or rule out malingering.

Discussion: When malingering is indicated as a possibility, and the defendant is examined for potential malingering, it is a best practice for the mental health professional to include in the report a discussion of the observations which gave rise to the assessment of potential malingering; methodology used; and the evaluator's opinion as to whether the defendant is or was malingering.

10. Statement of Potential for Future Dangerousness

Best Practice: Unless currently required by statute or rule, it is a best practice for the mental health professional to exclude from the competency report a statement as to the defendant's potential future dangerousness.

Discussion: A statement as to a defendant's potential future dangerousness can be extremely prejudicial, and may remain a part of the defendant's permanent record and be accessed for other proceedings. In the context of an individual's competency to stand trial or plead, the only relevance of such a statement is for recommending the level of security required for treatment. In that respect, it is a best practice for the mental health professional to describe any assessment of an immediate risk and recommendations for a treatment setting.

Further, because it is a best practice for the evaluating mental health professional to file the competency report within 15 days for a misdemeanor charge(s) after a court-ordered evaluation, and within 21-30 days for a felony charge(s)—and obtaining the information necessary for a future dangerousness assessment generally takes longer—such a prediction may serve to delay the report beyond a best practices timeframe.

Finally, it is a best practice to separate the legal issue of competency to stand trial or plead from any issues that may arise at a sentencing or civil commitment hearing.

 

B. Submission of Qualifications of Evaluating Mental Health Professional

Best Practice: It is a best practice for the evaluating mental health professional to submit curriculum vitae to the court and counsel at the time the competency report is filed and served, if not previously provided.

Discussion: Some jurisdictions utilize evaluating psychiatrists, psychologists or other mental health professionals who are known to the court and counsel, who routinely conduct court-ordered competency evaluations, or whose credentials are reviewed prior to being appointed to serve on a court panel of evaluating mental health professionals. In jurisdictions where the evaluator's experience is not known to the court or counsel, it is a best practice for the mental health professional to provide his or her credentials at the time, if not before, the competency report is filed and served.

 

C. When to Submit the Competency Report

Best Practice: It is a best practice for the mental health professional to perform the competency evaluation and submit the competency report within these timeframes: for a misdemeanor charge(s), with limited exceptions, it is a best practice to perform the evaluation and submit the report to the court and counsel within 15 days of the date the evaluation was ordered; for a felony charge(s), with limited exceptions, it is a best practice to perform the evaluation and submit the report to the court and counsel within 21-30 days of the date the evaluation was ordered. If the defendant is acutely psychotic, or seriously disturbed, it is a best practice to expedite voluntary treatment and advise the court of the need to delay the evaluation until the defendant is stabilized.

If the report will be delayed, it is a best practice for the evaluator to provide written notice to the court and counsel, including the reason(s) for the delay, e.g., records that were requested were not received, or more time is needed to conduct additional psychological testing or to obtain collateral information. It is also a best practice for the evaluator to provide the court and counsel with an estimate as to how much additional time is necessary.

Discussion: The deadlines serve one of the overall purposes of these best practices, which is to establish a framework within which cases are referred for competency evaluations; assessments are performed; defendants are referred for restoration; and cases are resolved by plea, trial, discharge, or civil commitment. Avoiding a logjam in any of these areas will assist the jurisdiction and mental health system in processing cases, providing restoration and treatment, and protecting the individual's constitutional rights.

In certain complex cases where malingering may be an issue or the diagnosis is unclear, it may be necessary for the mental health professional to either conduct additional psychological testing or obtain more background information from a collateral source. In such cases, family members may not be available, or a collateral source may not be available to provide psycho-social information because the defendant is destitute or homeless.

If an evaluator is awaiting information to complete the assessment, and he or she can form an opinion based on the information received, it is a best practice for the evaluator to make a notation on the report as to what records were requested but not received, and to submit the report to the court. If the evaluator needs more time to obtain documents because he or she cannot form an opinion without the information, it is a best practice to submit a case status report to the court ahead of the deadline and advise the court as to what information or documents are needed so, where appropriate, the court can order the records released, etc.

 

D. Who Should Receive the Competency Report

Best Practice: It is a best practice for the mental health professional to provide the court and counsel with a copy of the competency report.

Discussion: If the evaluator includes in the report statements by the defendant regarding his or her defense, or his or her counsel's trial strategy or related matters, it is also a best practice for the evaluator to request that the report be submitted first to defense counsel and the court under seal. In such circumstances, it is a best practice for the judge to review the report in camera and then rule as to whether certain aspects of the report should be redacted before being provided to the prosecution.