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

2. 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

3. 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)

4. 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

5. 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)

6. Lay of the Land: Forensic Mental Health Law as Framework
T.C.A. § (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

7. 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)

8. 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)

9. 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”?

10. 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.”

11. Lay of the Land: Forensic Mental Health Law as Framework
T.C.A. § (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

12. T.C.A. § (a)

13. 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

14. Intellectual Disability Expert Opinions

15. 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

16. 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)

17. MH/ID Interface
DIDD expert makes recommendations on court ordered issues + whether defendant is committable under T.C.A. §
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

18. 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

19. 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

20. 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.

21. Insanity Acquittals: the last 10 years

22. 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

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