Best Practices Model

VI. COMPETENCY RESTORATION

A. Where to Restore the Defendant

Best Practice: It is a best practice for the defendant to be restored in the least-restrictive treatment setting or facility consistent with the public safety and treatment needs of the defendant.

1. Hospital Restoration

Best Practice: It is a best practice to utilize a hospital for competency restoration if any one or more of the following six circumstances are present: (a) the individual presents an imminent risk of danger to self or others due to the mental disorder; (b) the individual is at risk of significant self-neglect; (c) the pathology of the individual is unclear and requires close clinical observation to assess and treat; (d) a thorough evaluation for malingering is required; (e) the individual lacks the capacity to consent to psychotropic medications and is likely to require the involuntary administration of medication for restoration to competency; or (f) emergency mental health or medical services are likely to be needed.

Related Issues

Resources

  • See the Restoration page on the Resources tab on this website for curricula for psychoeducational treatment.

 

2. Restoration in Jail

Best Practice: When circumstances requiring hospitalization are not present, and either the defendant needs to be detained or community restoration is not available, it is a best practice to provide restoration treatment in a jail setting.

It is also a best practice for the jail to create a mental health pod in which to hold, treat, and restore defendants to competency. It is further a best practice for the jail to employ the services of a mental health care nurse practitioner to staff the mental health pod.

Discussion: If a treatment regimen is needed to restore the defendant to competency, doing so in a jail can have the following five advantages: First, time is saved if the defendant does not need to await hospital restoration; second, time is also saved if the defendant does not need to be transported from one setting to another; third, restoring the defendant to competency in the local jail often locates the individual near family and counsel which may help the defendant to maintain competency; fourth, there is a greater likelihood that the defendant will receive continuity of care—using the same treating professional and formulary from the onset of treatment through disposition of the legal proceedings; and, fifth, restoration treatment in a jail is generally much less costly than in a hospital.

That said, there are competing considerations. First, there is strong support—even within the mental health system—that jails should not be treatment facilities. Second, since jails are typically city- or county-owned facilities, every day a defendant is treated in a jail rather than a state hospital shifts the cost of treatment to the local government, and the jail may be reticent to incur the liability. Third, with many jails across the country operating under federal consent decrees that limit the jail population, every day spent providing treatment services to an incompetent defendant is one day fewer the locality can detain others. Fourth, there may be statutory or contractual issues that prohibit the jail from providing treatment.

Individuals with mental health disorders are more likely to decompensate when introduced or re-introduced to a jail setting. However, if the jail establishes a mental health pod—an area of the jail where individuals with mental health disorders are separately detained—there is a greater likelihood the detention will have less of a negative effect on the individual's ability to attain and maintain competency.

A mental health nurse practitioner can perform invaluable roles which can help to prevent defendants from decompensating and alleviate further costs. A mental health nurse practitioner may be best suited to: (1) administer medications, assure the defendants are following the proscribed mental health treatment, and encourage them to follow the treatment; (2) alert the treating professional, counsel, and court about adverse effects of the treatment and/or if defendant fails to follow the proscribed mental health treatment; (3) observe the defendant's behavior and alert the treating physician, counsel, and court if it appears the defendant is decompensating.

Resources

  • In 2007, California passed legislation that allows jails to be used as treatment facilities for competency restoration. The Bill Analysis can be found here.
  • See the Restoration page on the Resources tab on this website for curricula for psychoeducational treatment.
  • For additional information on Mental Health Pods, including jails with mental health pods currently in operation, visit the Contact page on this website.

 

3. Community Restoration

Best Practice: It is a best practice for the court to order community restoration for individuals with mental retardation, cognitive disorders or developmental disorders, or major mental illness, if all of the following apply: (a) the community has a program to restore competency that is suitable for the treatment needs of the defendant; (b) the program provides intensive, individualized competency training tailored to the demands of the case and the defendant's particular competency deficits; (c) the defendant has a stable living arrangement with individuals who can assist with compliance with appointments and with treatment; and (d) the defendant is compliant with treatment, and not abusing alcohol or other chemical substances.

Discussion: One jurisdiction which has compared the costs of competency restoration in a mental health hospital versus community restoration in a private psychiatric facility found significant savings. Harris County (Houston), Texas conducted a six-month study, and the average length of stay in a state hospital for restoration was over 100 days at an average cost of $37,000 per individual; the community (in-patient) restoration averaged 30 days at an average cost of $21,000 per individual. That said, because state hospitals generally have a wide catchment area that includes few urban areas and many rural counties which have little, or no, jail-based psychiatric services, the average defendant arrives at the state hospital having had no treatment whatsoever and requires a longer period of stabilization before he or she can participate in any formal restoration program. Another jurisdiction, Summit County, Ohio, found outpatient competency restoration required a longer period of time and led to greater case delays because the community-based treatment was less intensive and more prone to treatment noncompliance. They found the outpatient restoration was most effective for individuals with cognitive impairments, and community-based competency restoration requires that the defendant have a stable, supportive living arrangement.

Resources

 

B. What Restoration Entails

Best Practice: It is a best practice for the treating physician or primary treatment provider to determine the treatment regimen necessary for the defendant to be restored to, and maintain, competency. If the defendant is in need of psychoeducational training to gain competency to stand trial or plead, it is a best practice to provide psychoeducational training as part of the competency restoration. It is a best practice to rely on the opinion of the evaluating mental health professional as to what competency restoration interventions should be initially provided to the defendant.

Discussion: There is a debate as to whether psychoeducational training is effective in helping to restore competency to defendants who are not cognitively challenged. Many practitioners currently utilize some type of psychoeducational group training for competency restoration. However, to date, there does not appear to be scientific evidence to demonstrate that this type of training is essential to restore competency in persons who suffer from a mental illness; nor is there is evidence that these individuals will be restored faster with psychoeducational training. (See below for a link to a study that discusses these findings.) Statistics show that approximately 90 percent of defendants referred for competency restoration are diagnosed with a mental health disorder, and approximately 10 percent are diagnosed with a cognitive disorder or developmental disability (these numbers may vary slightly from state to state). Of the roughly 10 percent of defendants who are diagnosed with a cognitive disorder or developmental disability, roughly 18-30 percent are rendered competent. For this group, psychoeducational training may be the only method available to render them competent.

Related Issues

Resources

  • Shawn D. Anderson & Jay Hewitt, The Effect of Competency Restoration Training on Defendants with Mental Retardation Found Not Competent to Proceed, 26 Law and Human Behavior 3, 343-51 (2003).
  • Gary B. Melton, et al., Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers (3rd ed. 2007).
  • Douglas Mossman, Stephen G. Noffsinger, et al., AAPL Practice Guideline for the Forensic Psychiatric Evaluation of Competence to Stand Trial, 35 Am. Acad. Psychiatry Law, Supp. 4:S3-72 (2007) (includes "Proposed Elements of a Model Competence Restoration Program").
  • Douglas Mossman, Predicting Restorability of Incompetent Criminal Defendants, 25 Journal of the American Academy of Psychiatry and Law 34-43 (2007).
  • Crystal Mueller and A. Michael Wylie, Examining the Effectiveness of an Intervention Designed for the Restoration of Competency to Stand Trial, 25 Behav. Sci. Law 891-900 (2007).
  • See the Restoration page on the Resources tab on this website for curricula for psychoeducational treatment.

 

C. Length of Time for Restoration

Best Practice: For a person charged with a misdemeanor, it is a best practice for the initial competency restoration to be no more than 120 days, unless that period of time is longer than the maximum amount of time the defendant would have served if incarcerated for the pending charge(s). It is a best practice for the mental health professional to notify the court as soon as he or she believes the defendant is rendered competent, which may be less than the 120-day period. It is a best practice for the court to not criminally commit a defendant to be restored to competency (including pre-treatment detention) for a period that is longer than the maximum amount of time that he or she would have served if incarcerated for the pending charge(s).

For a person charged with a felony, it is a best practice for the initial competency restoration to be no more than 120 days. By or before the end of the 120-day period, it is also a best practice for the treating mental health professional to file a report with the court stating his or her opinion as to whether he or she believes there is a substantial probability that the defendant can be restored to competency in the foreseeable future, or no longer than by an additional 245 days. If the mental health professional believes there is a substantial probability that the defendant can be restored to competency in the foreseeable future, it is further a best practice for him or her to opine as to what additional time is needed to restore the defendant to competency; for the court to grant 60-day extensions up to the additional 245 days; and for the treating mental health professional to file additional progress reports at the end of each additional 60-day period. It is also a best practice for the mental health professional to notify the court as soon as he or she believes the defendant is restored, which may be less than the initial 120-day period. Finally, it is a best practice for the court to not criminally commit a defendant for restoration for a period that is longer than the maximum amount of time that he or she would have served if incarcerated for the pending charge(s) (including pre-treatment detention).

Discussion: The Supreme Court made clear in Jackson v. Indiana, 406 U.S. 715 (1972), that a person may not be criminally committed for purposes of rendering him or her competent to stand trial "more than the reasonable period of time necessary to determine whether there is a substantial probability that he [or she] will attain that capacity in the foreseeable future." Id. at 738. Further, if a physician determines that the defendant "probably soon will be able to stand trial," the defendant must be making progress toward that goal to justify his or her continued commitment. Id.

Resources

  • Michael J. Finkle, Washington's Criminal Competency Laws: Getting From Where We Are to Where We Should Be, 5 Seattle J. Soc. Just. 201, 258-63 (2006)
  • See the Restoration page on the Resources tab on this website for curricula for psychoeducational treatment.