Forensic Mental Health Evaluation and Treatment of the Dually Diagnosed Criminal Defendant _______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ Jeff Feix, Ph.D. Director, Office of Forensic and Juvenile Court Services Tennessee Department of Mental Health and Substance Abuse Services

TDMHSAS Forensic Mental Health Services Pre-trial evaluation of criminal defendants Trial Competence & Mental Condition at the Time of the Offense Juvenile Court-Ordered Evaluations Dx? Rx? Commitment? + Forensic Issues NGRI Commitment, & Discharge Planning Mandatory Outpatient Treatment BOP Evaluations

Mental Health Experts in the Courts Melton et al: “an uneasy alliance” Adversarial vs. Scientific worldview Federal Rule of Evidence 702: expert testimony allowed if based on sufficient facts, reliable principles and methods applied reliably to this case Trial Court Judge is gatekeeper (Daubert v. Dow Chemical, 1993; Kumho Tire Co. v. Charmichael, 1999)

Forensic v Therapeutic Evaluation Originates from Third Party (e.g. court) Roles and Relationships: Who is the client? Limits of Confidentiality Importance of Collateral Information Assessing Response Set Expert Consultation Model Outcome up to the Trier of Fact

Forensic Mental Health Service Providers Certified Forensic Evaluators 9 community agencies by contract with TDMHSAS OFS DIDD experts designated for forensic certification Four Regional Mental Health Institutes (TDMHSAS) Forensic Services Program (TDMHSAS) Harold Jordan Center (DIDD)

Lay of the Land: Forensic Mental Health Law as Framework T.C.A. § 33-7-301(a) Competency to Stand Trial and/or Mental Condition at the Time of the Crime Must be Outpatient Evaluation First Evaluator “designated” by the Commissioner Inpatient evaluation “if and only if” outpatient evaluator recommends an inpatient evaluation Inpatient evaluation limited to maximum 30 days

Competency to Stand Trial “. . . whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v US (1960), Macky v State (1975), State v Johnson (1984)

Competency to Stand Trial Competency underlies elements of 5th and 6th Amendments of the US Constitution Assessment of Current Functioning Includes Rational and Factual Elements Includes interacting with attorney as well as understanding proceedings Assumes assistance of attorney or pleading guilty, but NOT to conduct your own trial (see Indiana v Edwards, 2008)

Jackson v. Indiana (1972) Landmark Case Limiting Hospitalization of Criminal Defendants Robbery X 2 Incompetent, hospitalized until “sane” “Mentally Defective Deaf Mute” Commitment without end for purse snatching Better off committed as “feebleminded”?

Jackson v. Indiana (1972) “ . . . a person . . . who is committed solely on account of his incapacity to proceed to trail cannot be held more than a reasonable period of time necessary to determine whether there is substantial probability that he will attain that capacity in the foreseeable future.”

Lay of the Land: Forensic Mental Health Law as Framework T.C.A. § 33-7-301(a) Must be Outpatient Evaluation First Evaluator “designated” by the Commissioner Inpatient evaluation “if and only if” outpatient evaluator recommends an inpatient evaluation Inpatient evaluation limited to maximum 30 days Must meet commitment criteria for longer hospitalization or for HJC

T.C.A. § 33-7-301(a)

Evolution of the MH/ID Interface Previously, if defendant might be IST or NGRI due to ID, MH evaluator requested ID Assist during the evaluation, outpatient or inpatient DIDD expert provided recommendations on ID issues to MH expert who communicates with the court DIDD recommendations addressed full range of forensic issues

Intellectual Disability Expert Opinions

Evolution of the MH/ID Interface FY 14: Reducing ID Assists No ID Assist requested on ID defendants considered competent or incompetent and untrainable ID Assist requested immediately for defendant who might be committable to HJC ID Assist for incompetent defendant who might be trainable; recommendation made to court which may or may not order training

Intellectual Disability Expert Opinions 41 total for FY 16 includes 33 competency training and 8 for possible commitment (80% training): 5 of the 8 were committed (62.5%); for FY 15: 26 total, 20 for training and 6 for commitment (77% training)

MH/ID Interface DIDD expert makes recommendations on court ordered issues + whether defendant is committable under T.C.A. § 33-5-403 Dually Diagnosed Defendant may be referred to RMHI to stabilize MI first (with or without ID Assist) ID Assist may originate from RMHI If no MI or MI stable, DIDD expert may provide outpatient competency training either instead of inpatient -301(a) or afterwards Competency Training may be done at HJC

CST Assessment Instruments Competency Assessment Instrument 13-item semi-structured interview MacCAT-CA 22-item semi-structured interview; understanding, reasoning and appreciation CAST-MR 50 items, 40 of which are multiple choice (understanding and assistance of counsel) and 10 open-ended specifically about case ID Training: Slater method

Special Issues: DD Defendant Diagnostic Overshadowing (both ways) Agreeability Self-Determination essential for adversarial system Conditional conclusions are acceptable Diversion considered on a case-by-case basis; offered (not recommended) to court

T.C.A. § 39-11-501: Insanity Defense It is an affirmative defense to the prosecution that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature or wrongfulness of such defendant’s acts. Mental disease or defect does not otherwise constitute a defense. The defendant has the burden of proving the defense of insanity by clear and convincing evidence. As used in this section, “mental disease or defect” does not include any abnormality manifested only by repeated criminal or otherwise antisocial conduct. No expert witness may testify as to whether the defendant was or was not insane as set forth in subsection (a). Such ultimate issue is a matter for the trier of fact alone.

Insanity Acquittals: the last 10 years

T.C.A. § 39-11-501: Insanity Defense No constitutional basis Assessment of functioning in past Collateral data crucial Threshold condition must be linked to offense ID threshold condition unlikely to be competent Raised in < 1% of all cases; successful 25% Usually stipulated, full range of offenses, and often results in longer detention

Jeff Feix Ph.D. (615) 532-6747 jeff.feix@tn.gov