What is a competency evaluation?
What is a competency evaluation?
A PC 1368 evaluation, also known as a competency or fitness evaluation, examines whether a criminal defendant has sufficient mental capacities to proceed in the criminal proceedings taken against them at the present time. Doubt concerning the defendant’s competence is usually declared by the defense counsel, but the judge can declare doubt as well. Once doubt is declared, criminal proceedings are suspended pending a determination of competence by a forensic psychologist or psychiatrist. The expert will conduct an evaluation and determine if, based on legal standards, the defendant is presently incompetent to stand trial. California uses the Dusky standard to assess competency. Dusky is comprised of two prongs: 1) ability to rationally assist defense counsel, 2) factual and rational understanding. The legal standard in California requires that there are deficiencies in at least one prong.
What do the prongs of competency mean?
These examples are not exhaustive as each case can have unique contextual factors that warrant examination and consideration. In brief however, rational ability to assist counsel usually assesses an individual’s ability engage with their counsel. This prong generally revolves around one’s perceptions of their defense counsel, their openness to counsel’s feedback and suggestions, and their ability to problem solve if/when a disagreement arises. Factual understanding concerns one’s general knowledge of relevant concepts related to the courtroom and related to their case. This includes, but is not limited to, appreciation of the roles of the people involved in the proceeding, and an appreciation of one’s criminal charges. Rational understanding essentially examines one’s motivation (e.g., Do they have their own best interest in mind? Are they undermining the case?), and their ability to maintain appropriate courtroom decorum.
A key concept is the defendant’s present abilities
It is important to keep in mind that one’s mental state can simply be a snapshot of that moment in time. An individual can seem to present a certain way with their attorney, and can look entirely different when they are evaluated. There can be many explanations for such changes the presentation of someone who is justice involved. But even on best of days for most of us, everyone’s mental state can fluctuate to some degree. Some of the more obvious reasons for a dramatic change in presentation can include intoxication, and psychiatric treatment while in custody. Sometimes, a defense attorney will declare doubt because the attorney has concerns about a defendant’s psychiatric history. However, while the concept of competence does involve consideration of one’s psychiatric history, it is more so focused on how such history has manifested into symptoms at the present time, and how such symptoms are impacting the prongs of competency at the present time. An example I often give is an individual with cardiovascular disease. This individual may have risk factors that increase their chances of a heart attack, but they are not walking around with an active heart attack every moment of everyday. In this scenario, the risk factors could be viewed as psychiatric symptoms, and the heart attack can be viewed as a finding of incompetence. Simply having psychiatric symptoms are not sufficient in and of itself for a finding of incompetence, but rather, it is the severity of these symptoms and how they impact the legal prongs of competency.
How is competency assessed?
Each forensic evaluator may have differences in how they assess for competency. In general, there are key concepts that can be broadly applied and expected. These include a thorough review of available records, collateral interviews (if appropriate), a clinical interview with the defendant, and a written report that is provided to the Court.
Remediation is an important aspect of a competency evaluation. In addition to assessing one’s general fund of knowledge as it relates to the courtroom, their ability to learn, retain, and utilize new information, should also be assessed. This can make the difference between a finding of competence and incompetence, especially in cases that straddle the barrier between competence and incompetence.
In my practice, I also use testing. I believe this adds clinical value to the evaluation because it provides a somewhat objective measure of one’s level of competence, and it also helps to keep biases in check. Testing can also be used to gauge one’s motivation and can be used to examine any potential impression management. The test results do not dictate the ultimate opinion, but rather, they serve as an additional data point to prove or disprove a hypothesis. In fact, forensic evaluations in general are about piecing together different data points and arriving at an opinion. In the ideal world, the data points would converge and support one answer, but that is often not the case. The forensic evaluator is not uncommonly tasked with making sense of discrepant information and arriving at an opinion.
What happens if opposing counsel does not stipulate?
Once the doctor’s report is submitted, the opposing counsel generally needs to stipulate to the findings. This essentially means they have to agree with it. In the event that the opposing counsel does not agree with the findings, there can be a competency trial during which the judge will hear the evidence and decide on the defendant’s competence. Alternatively, another evaluation (usually conducted by a different doctor) can be requested. Each evaluator brings a different perspective to the case, and can offer unique considerations of relevant contextual information. It is also important to keep in mind that like psychiatric symptoms, competency can also wax and wane. One’s presentation can fluctuate - what may look like competence today, can look like incompetence next month.
What happens if an individual is deemed incompetent?
If a defendant is deemed incompetent, they are usually committed to a facility for competency restoration. The facility they are sent to depends on the severity of the alleged offense(s), and can also depend on the local jurisdiction. Oftentimes, in California, defendants involved in felony cases are committed to the Department of State Hospital. In misdemeanor cases, there are sometimes competency restoration programs within or around the county of commitment.
What is involved in a competency restoration program?
There is no one size that fits all when it comes to competency restoration. It is oftentimes a multifaceted approach that involves therapy, remediation, psychotropic medications, and/or other adjunctive services. The length of the program depends greatly on individual factors and how (or if) they respond to treatment. Milder symptoms may respond quicker, whereas more severe symptoms may take longer. Despite best treatment efforts, there are cases where a defendant is deemed non-restorable. In this situation, depending on the severity of the allegation(s) and/or the local jurisdiction, the outcome may involve a dismissal of charges or civil commitment.
Dr. Chan is a forensic psychologist from San Francisco who provides forensic evaluations and expert witness testimony on forensic psychological matters such as competency. Want to discuss a case? Please email, call, or complete the contact form.
