Criminal Law and Psychiatry June 21 & 23, 2017

Everything you always wanted to Agenda know about • Competence to • Involuntary Stand Trial Treatment Criminal Law and Psychiatry* • Other Criminal • Mental Health Competencies Courts • Insanity Defense • Assisted Outpatient *BUT WERE AFRAID TO ASK • Civil Commitment Treatment • Juvenile • Attacking Mental Stephen Noffsinger, M.D. Competency Health Expert • Mitigation Testimony

Pre-Test 1 Pre-Test 2 A defendant who is Incompetent to A psychotic defendant who is Stand Trial for Aggravated Murder Incompetent to Stand Trial for may have the charges dropped, Aggravated Murder may refuse based on his incompetency. antipsychotic medication.

A. True A. True B. False B. False

Pre-Test 3 Pre-Test 4 A defendant who is Incompetent to Stand Trial and fails competency Defendants acquitted by reason of restoration may still proceed to a insanity for Murder are released into trial. society.

A. True A.True B. False B.False

Stephen Noffsinger, M.D. 1 Criminal Law and Psychiatry June 21 & 23, 2017

Pre-Test 6 Pre-Test 5 A defendant found NGRI on a Grand John was found NGRI twenty years Theft Motor Vehicle charge will ago on a Murder charge. John can remain under the jurisdiction of the only be committed if he is presently trial court for the remainder of his mentally ill and dangerous. life.

A.True A.True B.False B.False

Generic Definition of Competence

Competence to Stand Trial • The capacity to understand a concept and rationally proceed through a decision- making process

• Competence is the quality of the thought process involved, not just the eventual decision

Generic Definition of United States Constitution Competence Competence to stand trial guaranteed by: • Competence is a present-state evaluation • Fourteenth Amendment – Substantive Due • Mental illness does not necessarily = Process Incompetence • Sixth Amendment

Stephen Noffsinger, M.D. 2 Criminal Law and Psychiatry June 21 & 23, 2017

Sixth Amendment Dusky v. United States (1960)

In all criminal prosecutions, the accused shall Test for Competence to Stand Trial is: enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district “[W]hether defendant has sufficient present shall have been previously ascertained by law, and to be informed of the nature and cause of the ability to consult with his lawyer with a accusation; to be confronted with the witnesses reasonable degree of rational understanding against him; to have compulsory process for - and whether he has a rational as well as obtaining witnesses in his favor, and to have the factual understanding of the proceedings Assistance of Counsel for his defence. against him.”

Ohio Revised Code Ohio Revised Code Summarized

Section 2945.37 - “A defendant is presumed • Presumption of competence to stand trial competent to stand trial, unless it is proved • Incompetence to stand trial proven by by a preponderance of the evidence in a preponderance of the evidence hearing…that because of his present mental • Competence to stand trial addressed in condition he is incapable of understanding competence hearing the nature and objectives of the proceedings • Incompetence must be due to a present against him, or of presently assisting in his defense.” mental condition

Ohio Revised Code Summarized Competency vs. Sanity

Due to present mental condition, defendant Competency Sanity lacks capacity to: • present state • assessment at time of assessment offense 1. Understand the nature and objectives of proceedings, • triability • responsibility OR 2. Assist in defense

Stephen Noffsinger, M.D. 3 Criminal Law and Psychiatry June 21 & 23, 2017

Progression of Competency to Evaluating Competence to Stand Stand Trial Evaluation Trial

1. Arrest/Arraignment • Record review 2. Competence issue raised • Discussion with referring attorney (possible) 3. Competence evaluation at local forensic – History of mental illness center (or inpatient evaluation) – Bizarre nature of offense – Difficulty working with client – Irrational refusal of plea bargain

Evaluating Competence to Stand Evaluating Competence to Stand Trial Trial • Interview defendant – standard psychiatric interview with: • Formulate opinion on competence to stand – Chief complaint/history of present illness trial – Background histories – Past psychiatric history – Mental Status Examination • Written report/opinion • Diagnosis • Competence Evaluation • Competence to Stand Trial Assessment tool (optional)

Nature and Objectives of Ohio Revised Code Summarized Proceedings Due to present mental condition, defendant • Charge lacks capacity: • Severity of charge • Appreciate situation as defendant 1. To understand the nature and objectives of • Possible sentence proceedings, • Pleas OR • Roles of courtroom personnel 2. To assist in defense • Adversarial nature of trial

Stephen Noffsinger, M.D. 4 Criminal Law and Psychiatry June 21 & 23, 2017

Ability to Assist in Defense Ability to Assist in Defense

• Ability to work with defense attorney • Sufficient memory and concentration to • Plea bargain understand events at trial • Ability to give rational/coherent account of • Understand appropriate courtroom behavior offense • Absence of self-defeating behavior • Testify relevantly on own behalf • Evaluate evidence • Willingness to consider mental illness • Estimate chances of conviction defense • Develop plan of defense • Make reasonable defense decisions

Distrust of attorneys • 45% of pro se defendants: “Lawyers are more concerned with their own self-promotion than ’ ” What to do with a defendant who their client s best interest.

is unable/unwilling • Many habitual offenders: to trust his attorney? – do not regard court appointed attorneys as trustworthy – view the system as unfair and stacked against them

• Experience-based and not delusional

Reasons for Incompetency Reasons for Incompetency

• Low intelligence or dementia - impairs the • Mania - impairs the defendant’s ability to defendant’s factual understanding of the act appropriately in the courtroom. charge; pleas; trial process; etc. • Paranoid delusions - impair the defendant’s • Depression and self-defeating behavior - ability to work with their defense counsel. limit the defendant’s motivation for the best outcome at trial. • Disorganized thinking - impairs the defendant’s concentration and attention

Stephen Noffsinger, M.D. 5 Criminal Law and Psychiatry June 21 & 23, 2017

Reasons for Incompetency Incompetency

• Irrational decision-making about their • Incompetence: Males = females defense – due to delusions, disorganized thinking, low intellect or dementia. • Reason for Incompetence • Hallucinations - distract the defendant from – Elderly - dementia attending to the trial. – Young adults - psychosis, mood disorder, low IQ – Teens - low IQ

Progression of Competency to Incompetency Stand Trial Evaluation • Psychotic Disorders – 45-65% found incompetent 1. Arrest/Arraignment • Mood Disorders – 23-41% found 2. Competence issue raised incompetent • Intellectual Disability– 12.5-36% found 3. Competence evaluation at local forensic incompetent center (or inpatient evaluation)

Progression of Competency to Progression of Competency to Stand Stand Trial Evaluation Trial Evaluation 4. Competence hearing - if competent = trial 6. If Incompetent and Restorable - opinion on least restrictive treatment setting for 5. If incompetent - opinion on whether there is restoration to competence to stand trial. a substantial probability of Restoration to Competence within one year if treated. If Incompetent, Unrestorable, go to #10

Stephen Noffsinger, M.D. 6 Criminal Law and Psychiatry June 21 & 23, 2017

Progression of Competency to Restoration to Competence to Stand Trial Evaluation Stand Trial 7. Restoration to Competence program outpatient vs. inpatient (civil vs. max) • Treatment of mental illness

8. Updates to court due: a. when restored b. six month interval • Education c. expiration of statutory time limit for restoration

Statutory Time Limits for Progression of Competency to Restoration to Competence Stand Trial Evaluation M3-M4: 30 days 9. If restored = trial 10. If unrestorable (Incompetent to Stand M1-M2 – 60 days Trial, Unrestorable) a. charges dropped - no criminal court F3, F4, F5: 6 months jurisdiction b. possible civil commitment - probate F1- F2: 12 months court c. possible reindictment

Confidentiality and Competence Legal Regulation Evaluation • Evaluation shared with defense, prosecution of and court. Competence to Stand Trial • ORC - no information gathered in competence evaluation can be used to prove guilt.

Stephen Noffsinger, M.D. 7 Criminal Law and Psychiatry June 21 & 23, 2017

Jackson v. Indiana Wilson v. United States

• United States Supreme Court 1972 • US Court of Appeals, 1968

• “Due process requires that the nature and • Competence for amnestic defendants duration of commitment bear some decided on a case-by-case basis, based on reasonable relation to the purpose of the extent that: commitment.” 1. amnesia effected ability to consult/assist • Required “substantial probability” of attorney restoration to justify commitment 2. amnesia effected ability to testify

Wilson v. United States Drope v. Missouri

3. evidence could be extrinsically • US Supreme Court 1975 reconstructed • Question – what events should trigger competency 4. government assisted in reconstruction evaluation? 5. strength of prosecution’s case • Holding: 6. any other facts regarding fairness of trial – Defense, prosecution or judge can raise competence as an issue – Defendant’s strange behavior at trial, suicide attempt and psychiatric testimony should have triggered competence evaluation.

Cooper v. Oklahoma Indiana v. Edwards

• US Supreme Court 1996 • 554 U.S. 164 (2008) • Issue – what is the standard of proof • US Supreme Court required to prove incompetence to stand • Issue trial? • Facts • Holding – Preponderance of the evidence

Stephen Noffsinger, M.D. 8 Criminal Law and Psychiatry June 21 & 23, 2017

Competence to Represent Oneself Indiana v. Edwards (Pro se) • Godinez v. Moran (1993) • Holding - a state may require an otherwise Same standard applied to competence to competent criminal defendant to proceed to stand trial and competence to represent trial with the assistance of counsel. oneself. • Indiana v. Edwards (2008) A different standard allowed (but not defined) for competence to represent oneself.

ISTU-CJ ISTU-CJ

• Incompetent to Stand Trial • Violent Felony 1 or Felony 2 charges • Unrestorable • If defendant Incompetent to Stand Trial, • Court Jurisdiction Unrestorable • Prosecutor files motion requesting ISTU-CJ status • Court determines if clear and convincing evidence defendant committed the offense

ISTU-CJ ISTU-CJ

• If ISTU-CJ – commitment remains in Court • Upheld by Supreme Court of Ohio 2011 of Common Pleas, not transferred to Probate Court • State v. Williams • Court retains jurisdiction over issues such as commitment, privilege levels • Conditional Release, not discharge from hospital

Stephen Noffsinger, M.D. 9 Criminal Law and Psychiatry June 21 & 23, 2017

Top 20 Errors in Competence Top 20 Errors in Competence Evaluations Evaluations

20. Equating knowledge deficit with 16. Equating incompetence in one area with incompetency. incompetence in other areas. 19. Minimizing impact of single delusion on 15. Not knowing competence to stand trial competency. standard. 18. Equate mental illness with incompetency. 14. Not conducting a specific competence to stand trial assessment. 17. Giving ultimate issue opinion. 13. Confusing sanity with competency.

Top 20 Errors in Competence Top 20 Errors in Competence Evaluations Evaluations 12. Not reviewing medical records. 8. Failing to consider that deficits are not due 11. Confusing various types of competencies. to a present mental condition (ignorance, personality, “Freeman” beliefs, etc.). 10. Failing to address restorability 7. Failing to perform a Mental Status Exam 9. Making up your own competence to stand (missing delusions, cognitive deficits, trial standard. etc.). 6. Overly rigid knowledge requirements (charges, sentence, pleas, etc.). 5. Failure to evaluate decision-making capacity.

Top 20 Errors in Competence Evaluations

4. Failure to consider malingering potential. 3. Equating amnesia with incompetence. Other Criminal Competencies 2. Failure to frame opinion in language of the competence standard. . 1. Not explaining rationale for opinion that defendant is competent/incompetent.

Stephen Noffsinger, M.D. 10 Criminal Law and Psychiatry June 21 & 23, 2017

Competence to Confess Competence to Confess

• Voluntariness - • Whether the defendant knowingly, intelligently (Johnson v. Zerbst, 1938) and • Intelligently - voluntarily waived the right. • Knowingly -

Voluntary, Intelligent and Knowing Competence to be Sentenced

• Confess • Defendant’s understanding: – convicted of a crime – reason for the conviction • Plead Guilty – reasons that a sentence will be imposed • Rationally participate in a pre-sentence • Waive Counsel investigation • Assist defense attorney: – minimize negative impact of conviction – offer mitigating factors

Competence to Waive Appeals Competence to be Executed

Current symptoms impair defendant’s ability • The general concept of punishment to: • The nature of the death penalty • The nature of death row • The personnel present at the execution • Rationally make a decision whether to • The role of the defense attorney pursue appeals; and • What will happen when their execution is carried out • The reason that the death sentence has been imposed • Symptoms that may impact their perception of reality • Assist defense counsel in that pursuit

Stephen Noffsinger, M.D. 11 Criminal Law and Psychiatry June 21 & 23, 2017

Juvenile Competencies O.R.C. 2152.51

Juveniles have right to competence: “…A child is incompetent if due to mental illness, due to developmental disability, or • Bindover hearing otherwise due to a lack of mental capacity, the child is presently incapable of understanding • Trial the nature and objective of proceedings against the child, or of assisting in the child’s defense.” (2011)

Affirmative Defense

• Defendant affirms they committed the actus reus Not Guilty by Reason of Insanity • Asserts not criminally liable, OR

• Asks for acquittal due to special circumstances

• Burden of proof shifts to defendant to prove affirmative defense

Affirmative Defenses Affirmative Defenses

Justification Excuse • Self defense • Defense of others • Not guilty by reason of insanity • Defense of property • Duress • Necessity (choice of evils) • Infancy • Consent • Involuntary intoxication • Use of force to make arrest • Entrapment • Use of force by public authority

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Not Guilty by Reason of Insanity Insanity Standard Trends

• Raised in 1% of all felony cases • Right/Wrong test (global) • 25% overall success rate • Wild Beast 5% - jury trials • Irresistible Impulse 35-40% bench trials • Offspring of a Delusion • NGRI is infrequently successful when • Specific Wrongfulness medical opinions conflict

Trial of Earl Ferrers McNaughten Trial

• 1760 • 1843 • First example of psychiatric expert • McNaughten had paranoid delusions testimony • Stalked Prime Minister Peel, shot and killed • Unsuccessfully used irresistible impulse test Drummond for insanity • Every psychiatrist thought McNaughten was insane • Found insane by jury after brief deliberation

McNaughten standard McNaughten Trial “…it must be clearly proved that, at the time of committing the act, the party • Public outrage led to appellate review accused was laboring under such a defect of • McNaughten Rules led to new McNaughten reason, from disease of the mind, as to not standard for insanity know the nature and quality of the act, or if • Combination of wild beast test and he did know it that he did not know he was Spigurnel’s right/wrong test doing what was wrong…and whether the accused at the time of the doing the act knew the difference between right and wrong…in respect to the very act with which he is charged.”

Stephen Noffsinger, M.D. 13 Criminal Law and Psychiatry June 21 & 23, 2017

Federal Insanity Defense Reform Insanity in America Act of 1984 • Isaac Ray - Treatise on Medical • Reaction to John Hinckley Jurisprudence of Insanity - 1838 • “It is an affirmative defense to a prosecution under any federal statute that at • New Hampshire Doctrine 1869 the time of the commission of the acts…the defendant, as a result of severe mental disease or defect, was unable to appreciate • Durham Test 1954 the nature and quality or the wrongfulness of his acts.” • American Law Institute 1955

Present-Day Ohio Revised Code 2945.39 American Insanity Standards • Several states have abolished NGRI • Presumption of sanity • Insanity proven by preponderance of • Of states with NGRI statutes: evidence by defense – 2/3 states have strict McNaughten • Standard is at time of act a: – 1/3 have irresistible impulse arm, in addition to 1. severe mental disease or defect that McNaughten causes actor 2. to not know wrongfulness of act

Procedures for Obtaining NGRI Sanity Evaluations Evaluation • Focus on: • Defense enters NGRI plea – mental state at time of offense • Court orders NGRI evaluation at forensic – criminal responsibility for offense center • Possible other NGRI independent • Present mental state not the issue evaluations by defense and/or prosecution

Stephen Noffsinger, M.D. 14 Criminal Law and Psychiatry June 21 & 23, 2017

Procedures for Obtaining NGRI Procedures for Conducting NGRI Evaluation Evaluation • “Sound Discretion” used in determining • Determine exact NGRI standard in number of NGRI evaluations (State v. Hix). jurisdiction

• “Abuse of Discretion” is standard by which • Determine facts of case failing to order NGRI evaluation is reviewed on appeal (State v. Nelson). • Apply NGRI standard to facts and formulate opinion on NGRI

NGRI Evaluation Ohio Revised Code 2945.39

Determine facts of case by: • Presumption of sanity • Review past medical/psychiatric records • Insanity proven by preponderance of • Review psychiatric records around time of evidence by defense act • Standard is at time of act a: • Witness/victim/police observations of 1. severe mental disease or defect that defendant at time of offense causes actor • Personal interview of defendant, including 2. to not know wrongfulness of act defendant’s account of act

Which Mental Illnesses Qualify as Severe Mental Disease or Ohio Revised Code 2945.39 Defect? • Presumption of sanity Mental Disease Mental Defect • Insanity proven by preponderance of • psychotic disorders • mental retardation evidence by defense • mood disorders • Standard is at time of act a: • dementia, delirium 1. severe mental disease or defect that • possibly PTSD, MPD causes actor • not personality disorders, voluntary 2. to not know wrongfulness of act intoxication, paraphilias

Stephen Noffsinger, M.D. 15 Criminal Law and Psychiatry June 21 & 23, 2017

Evaluating Knowledge of Three Types of Wrongfulness Wrongfulness at Time of Act • Legal Wrongfulness standard - knowledge Look at of illegality • Defendant’s statements/behavior at time of • Subjective Moral standard - personal belief act acts were morally justified, despite • Defendant’s later account of act knowledge of illegality • Attempts to hide/discard evidence • Objective Moral standard - lack capacity to • Attempts to evade detection or capture know society considers acts are wrong

Knowledge of Wrongfulness NGRI and Premeditation

• Lying about offense Is premeditation relevant to NGRI defense? • Refusing to cooperate with investigation • Calling police vs. calling for help • If delusion were true, would act be right • Rational alternative motive versus overriding moral justification

NGRI Appeals NGRI Release in Ohio

• State v. Thompson • Finding of NGRI results in civil • Ohio Court of Appeals, 3rd District (1994) commitment hearing through original trial • Appellate court should defer to the trier of court, not probate court. fact’s interpretation of the evidence in • Trial court retains jurisdiction of defendant. deciding insanity • 98% of NGRI acquittees civilly committed • Insanity verdict will be reversed only where • Issue of Least Restrictive Alternative of overwhelming and uncontradicted evidence Treatment to the contrary is arbitrarily ignored • Majority of NGRI acquittees placed in state hospital

Stephen Noffsinger, M.D. 16 Criminal Law and Psychiatry June 21 & 23, 2017

Hospitalization of Insanity Ohio Commitment Standard Acquittees 5122.01 Purpose: Threshold of mental illness, defined as “A • Treatment of mental illness substantial disorder of thought, mood, • Public protection orientation, perception or memory that grossly impairs: • Continual violence risk assessment • judgment • Minimize risk of future offenses • behavior • capacity to recognize reality • No Conviction = NO PUNISHMENT • ability to meet ordinary demands of life

Ohio Commitment Standard In re Burton 5122.01 Mental illness causes: • Ohio Supreme Court 1984 1.Substantial risk of physical harm to self • Issue 2.Substantial risk of physical harm to others • Facts 3.Unable to provide for needs AND • Holding hospitalization is least restrictive placement • Rationale 4.Benefit from hospitalization AND infringe on rights of self/others

Burton Criteria Burton Criteria

1. Substantial risk of physical harm to self/ 5. Person’s history of conforming to laws others and values of society 2. Present mental/physical state. 3. Person’s insight into his condition so that 6. If person’s mental illness is in remission, he will continue treatment. consider the cause and degree of remission 4.Grounds upon which the state relies for the and the probability the person will continue proposed commitment. treatment to maintain the remission.

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Maximum Security State Levels of Care Hospital • Maximum security state hospital • Twin Valley Behavioral Healthcare - • Civil hospital Columbus • Conditional Release • High staff/patient ratio discourages physical violence • Environment discourages escape

Civil State Psychiatric Hospital Privilege Increases

Five Levels of Movement: Evaluation, violence risk assessment or • Level 1 - restricted to unit review: • Level 2 - supervised on grounds • Treatment Team/HCR-20 • Level 3 - unsupervised on grounds, for • Forensic Review Team programs, work and free time • Chief of Forensic Services (review) • Level 4 - supervised off grounds • Forensic Center (L5 or CR) • Level 5 - unsupervised off grounds • Trial Court

Conditional Release State v. Mahaffey

• Release into community, with conditions • Ohio Court of Appeals, 4th District • Similar to probation/parole • November 2000 • Conditional release revoked if conditions • State has the burden of establishing by clear violated, in effort to prevent reoffense and convincing evidence that increased • Frequent conditions include compliance privilege level should not be granted due to with medications/treatment, abstinence threat to public safety or safety of any from drugs/alcohol, living arrangements person.

Stephen Noffsinger, M.D. 18 Criminal Law and Psychiatry June 21 & 23, 2017

O.R.C. 2947.06

Trial court may hear testimony in mitigation: Mitigation • Psychiatric Factors in Offense

• Psychiatric Recommendations

Components of Informed Informed Consent Consent 1. Information & 2. Voluntariness Involuntary Treatment 3. Competency

Information and Informed Models of Information Consent Disclosure in Informed Consent

• Nathanson v. Kline (1960) How much information about the proposed (reasonable medical practitioner standard) treatment must be disclosed? • Canterbury v. Spence (1972) (materiality of information standard)

Stephen Noffsinger, M.D. 19 Criminal Law and Psychiatry June 21 & 23, 2017

Components of Informed Voluntariness Consent 1. Information • Patient must be free of coercion • Cannot link acceptance/decline of treatment 2. Voluntariness with privileges, food, clothing, discharge, etc. 3. Competency • Can link acceptance/decline of treatment with medical or risk issues

Components of Informed Competency and Informed Consent Consent 1. Information Competency is • present state evaluation 2. Voluntariness • assessment of patient’s decision-making process, not their consent or refusal 3. Competency • quality of patient’s thought process and ability to rationally manipulate information

Right to Refuse Treatment Right to Refuse Treatment

• Justice Cardozo (1914) - “Every human of • Treatment without consent = battery adult years and sound mind has a right to • Competent patients can refuse live-saving determine what shall be done with his own treatment ” body. • Mind control via psychiatry (Thomas Szaz) has always been a fear

Stephen Noffsinger, M.D. 20 Criminal Law and Psychiatry June 21 & 23, 2017

Arguments For Arguments Against Right to Refuse Treatment Right to Refuse Treatment

Constitutional Arguments: • Parens Patriae • Right to privacy (1st, 5th and 14th) • Right to freedom of thought (1st) • Police Powers • Cruel and unusual punishment (8th) • Due process (14th)

Right to Refuse Treatment Separate Liberty Interests

• Voluntary patients have always had right to Civil Commitment Right to Refuse refuse treatment Treatment • Involuntary patients • Right to freedom • Right to body integrity • Right to privacy, – 1960s - need for treatment is basis of • Right to not be freedom of hospitalization arbitrarily or erroneously detained speech/thought, etc. – 1970s - commitment based on danger

Right to Refuse Treatment Psychiatric Emergencies

Commitment vs medication • Require actual or threatened danger to self • separate liberty interests or others. • separate standard for competence: – to make hospitalization decisions vs. • No actual violence to self or others is – medication decisions required, but danger or threat of violence must be imminent.

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Steele v. Hamilton County Psychiatric Emergencies Mental Health Board • Emergency treatment measures are used in • Ohio Supreme Court, 2000 psychiatric emergency, unless lesser intrusive means are available, and feasible. • Facts

• Emergency measures include forced • Question - Must a mentally ill person be medications, seclusion and/or restraint. imminently dangerous for a court to order forced medication?

Steele v. Hamilton County Steele v. Hamilton County Mental Health Board Mental Health Board Forced medication may be administered in an Holding - A court may authorize forced medications emergency, which is a medical decision that without a finding of dangerousness, when clear and requires: convincing evidence exists that: • The patient lacks the capacity to give or withhold • Imminent dangerousness to self or others informed consent regarding treatment; • No less intrusive means of avoiding harm • The proposed medication is in the patient’s best • Medication is appropriate for patient interest, and; • No less intrusive treatment will be as effective in treating the mental illness.

Procedures for Evaluating Steele v. Hamilton County Competence to Make Treatment Mental Health Board Decisions Two different procedures for forced medication: • Interview patient 1. Non-emergency - judicially based, • Review current medical record evaluation of competence, best interests • Perform Mental Status Examination model • Competency (capacity) evaluation 2. Emergency - professional judgment and • Develop opinion dangerousness required

Stephen Noffsinger, M.D. 22 Criminal Law and Psychiatry June 21 & 23, 2017

Assessment of Competency to Competency and Informed Make Medical Decisions Consent Patient must understand: Competency is • nature of illness • present state evaluation • reason for treatment • assessment of patient’s decision-making • risks and benefits of proposed treatment process, not their consent or refusal • treatment alternatives • quality of patient’s thought process and • prognosis if treated ability to rationally manipulate information • prognosis if not treated

Steele v. Hamilton County Steele v. Hamilton County Mental Health Board Mental Health Board Due Process requirements: • Patient attends hearings • Attorney representation • Right to present witnesses • Independent 2nd opinion • Right to cross examine witnesses – capacity – appropriateness of treatment • Notice of all hearings

Sell v. United States Sell v. United States

• United States Supreme Court (2003) Holding - Due Process allows for forced antipsychotic medications solely to restore • Question - Is Due Process violated by competence to stand trial, but only under involuntarily administering antipsychotic narrow circumstances. medication to render a criminal defendant competent to stand trial?

• Facts -

Stephen Noffsinger, M.D. 23 Criminal Law and Psychiatry June 21 & 23, 2017

Sell v. United States Sell v. United States

• Important governmental interests are at • Involuntary medication is necessary to further the stake. important governmental interests.

• Administration of the drugs is medically • Involuntary medication will significantly appropriate further the important governmental interests and be substantially likely to render the Preferred to pursue involuntary treatment based on defendant competent to stand trial. lack of capacity

Deinstitutionalization

Mental Health Courts

Mental Illness Seriously Mentally Ill

• Overrepresented in jail and prison • Higher arrest rates population • Longer periods of incarceration • Serious Mental Illness: • Higher recidivism rates – General population = 5% • Limited access to healthcare – Corrections population = 17%

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Mental Health Courts Mental Health Courts • Intercept 3 from Sequential Intercept Model • Limited docket • 1st goal = treatment (medications) • Specially assigned judge • Chance to voluntarily comply with • Problem-solving treatment – Expanded scope of non-legal issues • Move defendant to treatment setting from – Hope for outcomes beyond law’s application jail – Foster collaboration among many parties • Once stable, return to court • New roles for judge, attorneys, and • Enter Mental Health Court program treatment system (Petrile & Poythress, 2002)

Mental Health Courts Mental Health Courts

• Akron (1st in Ohio) • Methods: • 2-year intensive outpatient treatment-based – Case management program – Probation officers • Goals: – Medication management – Compliance with treatment – Regular appearances in court – Prevent recidivism – Sobriety (if issue) – Housing – Employment

Mental Health Courts Assisted Outpatient Treatment

• Results: • Effective 9/17/14 via SB 43 – Use fewer jail bed days • Expands definition of “mentally ill person – Use fewer hospital bed days subject to court order” via O.R.C. – Lower costs 5122.01(B) – Better treatment outcomes • Allows for court-ordered outpatient – Lower rates of reoffense treatment

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Ohio Commitment Standard Ohio Commitment Standard 5122.01 5122.01 Threshold of mental illness, defined as “A Mental illness causes: substantial disorder of thought, mood, 1.Substantial risk of physical harm to self orientation, perception or memory that 2.Substantial risk of physical harm to others grossly impairs: 3.Unable to provide for needs AND • judgment hospitalization is least restrictive placement • behavior 4.Benefit from hospitalization AND infringe • capacity to recognize reality on rights of self/others • ability to meet ordinary demands of life

Ohio Commitment Standard Ohio Commitment Standard 5122.01 5122.01 5. a. Would benefit from treatment as I. At least twice within the thirty-six months prior to the manifested by evidence of behavior that filing of an affidavit seeking court-ordered treatment of indicates all of the following: the person under section 5122.111 of the Revised Code, the lack of compliance has been a significant factor in i. The person has a history of a lack of compliance without supervision, based on a clinical necessitating hospitalization in a hospital or receipt of determination. services in a forensic or other mental health unit of a ii. The person has a history of lack of compliance correctional facility, provided that the thirty-six-month with treatment for mental illness and one of the period shall be extended by the length of any following applies: hospitalization or incarceration of the person that occurred within the thirty-six-month period.

Ohio Commitment Standard Ohio Commitment Standard 5122.01 5122.01 II. Within the forty-eight months prior to the filing of an iii. The person, as a result of the person's mental affidavit seeking court-ordered treatment of the person illness, is unlikely to voluntarily participate in under section 5122.111 of the Revised Code, the lack of necessary treatment. compliance resulted in one or more acts of serious violent behavior toward self or others or threats of, or attempts at, serious physical harm to self or others, provided that iv. In view of the person's treatment history and the forty-eight-month period shall be extended by the current behavior, the person is in need of length of any hospitalization or incarceration of the treatment in order to prevent a relapse or person that occurred within the forty-eight-month period. deterioration that would be likely to result in substantial risk of serious harm to the person or others.

Stephen Noffsinger, M.D. 26 Criminal Law and Psychiatry June 21 & 23, 2017

Ohio Commitment Standard 5122.01 Dealing 5. b. An individual who meets only the with criteria described in division (B)(5)(a) of Forensic Mental Health this section is not subject to hospitalization Professional Expert Testimony

Direct Examination Qualification Challenges

• Qualifications of Examiner Issues with: • Sources of Information reviewed • Licensure • Board certification • Summary of offense accounts given by • Forensic fellowship defendant, victim, witnesses, police • Training in specific issue • Opinion on diagnosis at time of act • Experience in specific issue • Opinion on severe mental disease/defect • Publications/Research/Teaching • Opinion on knowledge of wrongfulness • Honors/Awards

160

Methodology Challenges Methodology Challenges

• Inadequate sources of data • Lack of/wrong psychological test measure • Lack of collateral data • Ignored conflicting data • Accept subject self-report at face value • Fail to consider critical evidence • Ignorance of legal standard • Fail to investigate plausible alternative theory

161 162

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Opinion Challenges Objectivity Challenges

• Facts don’t support opinion • Defense or plaintiff bias • Leaps in logic • Defense or plaintiff referral pattern • Speculation • Personal interest in outcome • Faulty reasoning • Financial interest in outcome • Applying incorrect legal standard • Frequent referrals from attorney • Level of certainty of opinion • Promise of future referrals • “Hired Gun”

163 164

Content of Cross Examination

Scope of Cross Examination: [email protected] Eight Impeachment Points: 1. Perceptions 2. Memory & psychiatric issues 3. Distortions caused by communication 4. Bias, interest, prejudice, emotional traits 5. Prior criminal convictions 6. Prior misconduct/dishonesty 7. Prior inconsistent statements 8. Bad reputation for truth and veracity

165 QUESTIONS?

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