JUDGE’S GUIDE TO HANDLING CASES INVOLVING PERSONS WITH MENTAL DISORDERS JUDGES GUIDE: Handling Cases Involving Persons with Mental Disorders Prepared By: Stephanie Rhoades District Court Judge Alaska Court System [email protected] Colleen Ray Committing Magistrate/Master Alaska Court System [email protected] Edited By: Mary “Meg” Greene Senior Superior Court Judge Alaska Court System [email protected] Administrative Support Jennie Marshall-Hoenack [email protected] July 2008 Judges’ Guide: Handling Cases Involving Persons with Mental Disorders ___________________________________________________________________________________ JUDGE’S GUIDE TO HANDLING CASES INVOLVING PERSONS WITH MENTAL DISORDERS TABLE OF CONTENTS PART I. COMPETENCY FOR LEGAL PROCEEDINGS 1. Competency for Legal Proceedings Flowchart 2. Competency – First Evidentiary Hearing 3. Competency –Second Evidentiary Hearing 4. Competency - Third Evidentiary Hearing 5. Competency—Final Hearing 6. Forms: CR260 Order for Psychiatric Examination CR265 Order of Commitment and Transport 7. Juvenile Delinquency—Order for Competency Evaluation 8. Mental Health Evaluations: Guidelines for Judges and Attorneys 9. Court-ordered Medication for Competency 10. Harvard Law Review Excerpt PART II. INVOLUNTARY COMMITMENT 11. Emergency Initiation of Commitment (out of court) 12. Non-Emergency Initiation and Hearing 13. 30-Day Commitment Hearing 14. 90-Day Commitment Hearing 15. 180-Day Commitment Hearing 16. Hearing on Involuntary Administration of Medication 17. Appendix 1 Mentally, Gravely Disabled, Danger to Self or Others 18. Appendix 2 Notice 19. Appendix 3 Rights 20. Appendix 4 No Less Restrictive Alternative 21. Appendix 5 Finding Placement at Closest Facility 22. Appendix 6 Mental Commitment Forms 23. Appendix 7 Ability to Give and Withhold Consent 24. Appendix 8 Best Interest Finding PART III. GUARDIANS AND CONSERVATORS 25. Points to Consider in an Adult Guardianship 26. Points to Consider in an Adult Conservatorship PART IV. MENTAL HEALTH AND MEDICATIONS MATERIALS 27. Alphabetical DSM IV 28. Medications List 29. Handbook for Working with Defendants & Offenders with Mental Disorders 30. Commonly Used Acronyms 31. Quick Reference to Psychotropic Medication 32. Judge’s Guide to Mental Health Jargon Judges’ Guide: Handling Cases Involving Persons with Mental Disorders ________________________________________________________________________________ Judges’ Guide: Handling Cases Involving Persons with Mental Disorders ___________________________________________________________________________________ COMPETENCY TO PROCEED FLOWCHART INITIATION OF INQUIRY AND EXAMINATION Competency may be raised at any time May be raised by prosecutor, defense, or judge Court issues order for competency examination (Court Form CR-260) Schedule hearing and report due date w/in 90 days of order 1. Competency for Legal Proceedings Flowchart Defendant is examined by API doctors, in jail usually First Hearing (held within 90 days of examination order) Competent Not Competent Not Competent but capable of restoration not capable of restoration Schedule next Commit to API for up to 90 days for Case dismissed w/o prejudice, proceeding in treatment & competency school further commitment governed criminal case by AS 47 Defendant usually housed at API TAKU unit No involuntary medication w/o order after Sell hearing Schedule Second Hearing w/i 90 days Second Hearing (held within 90 days of First Hearing) Competent Not Competent Not Competent but capable of restoration not capable of restoration Schedule next Re-commit for up to 90 days Dismiss w/o prejudice, further proceeding in commitment governed by criminal case as soon AS 47 as possible Schedule Third Hearing w/i 90 days 1 Judges’ Guide: Handling Cases Involving Persons with Mental Disorders ________________________________________________________________________________ Third Hearing (held within 90 days of Second Hearing) Competent Not Competent Not Competent but capable of restoration AND Schedule next Dismiss w/o prejudice, a. Crime involves use of hearing as soon as further commitment force against a person possible governed by AS 47 b. Defendant poses substantial danger of physical injury to others, AND c. There is a substantial probability that defendant will regain competency w/i reasonable period, THEN Re-commit for up to 6 months and schedule Final Hearing If one or more of a-c are not true, then, dismiss w/o prejudice, further commitment governed by AS 47 Final Hearing (held within 6 months of Third Hearing) Competent Not Competent Schedule next Dismiss w/o prejudice hearing as soon as possible 2 Judges’ Guide: Handling Cases Involving Persons with Mental Disorders ___________________________________________________________________________________ Competence for Legal Proceedings Hearing Checklist FIRST EVIDENTIARY HEARING Hold within 90 days of Order for Psychiatric Examination Burden of Proof Preponderance of the evidence Who has the burden Party arguing for fi nding of incompetence Statutory references AS 12.47.070, AS 12.47.100, AS 12.47.110, AS 12.47.130 Law Defendant presumed competent unless, due to a mental 2. Compentency - First Evidentiary Hearing disease or defect, the defendant is: 1. unable to understand the proceedings against him/her AND/OR 2. unable to assist in own defense. Evidence 1. API REPORT OF EXAM Report shall contain the following: • Description of nature of the exam • Diagnosis of mental condition • Opinion as to whether defendant suffers from mental disease or defect, lacks capacity to understand the proceedings or assist in own defense • Whether exam could not be conducted due to defendant’s unwillingness • Opinion as to whether the unwillingness is result of mental disease or defect • If requested, opinion as to whether the defendant is capable of self representation 2. OPINION OF DEFENSE COUNSEL Defense counsel’s estimation of competence should be accorded substantial weight1) however, defense counsel’s estimation of client’s incompetence need not be given the same weight. 2 3. OTHER EVIDENCE Other expert testimony proffered by the prosecutor or defense; defendant may testify. 1 Fajeriak v. State 520 P.2d 795, 802-03 (Alaska 1974) 2 McKinney v. State, 566 P.2d 653, 660 (Alaska 1977) 3 Judges’ Guide: Handling Cases Involving Persons with Mental Disorders ________________________________________________________________________________ Statutory Considerations for the Court (AS 12.47.100): Determining Intellectual Functioning • Does defendant have a driver’s license? • Is defendant able to maintain employment? • Is defendant competent to testify as a witness under Rules of Evidence? Determining Ability to Understand Proceedings • “Understand the proceedings” mean “the defendant has a reasonably rational comprehension of the proceedings.” (AS 12.47.130(5). • Does the defendant understand that he or she has been charged with a crime and what penalties could be imposed? • Does the defendant understand the roles of judge, jury, prosecutor, defense counsel? • Can defendant be expected to tell defense counsel the circumstances surrounding the alleged offense? • Can the defendant distinguish between a guilty and not guilty plea? • Any other relevant factors. Determining Ability to Assist in Own Defense • Can defendant recall and relate facts re: his/her actions at times relevant to the charges? If not, is the failure of recall due to the mental disease or defect? • Can defendant respond coherently to counsel’s questions? • Any other relevant factors. Note: Defendant is considered able to assist counsel even if: memory is impaired, s/he refuses to accept course of action that counsel or court believes is in defendant’s best interest, or is unable to suggest a strategy or unable to chose a defense. 4 Judges’ Guide: Handling Cases Involving Persons with Mental Disorders ___________________________________________________________________________________ FINDINGS AND ACTIONS FINDING 1: DEFENDANT NOT COMPETENT, CAPABLE OF RESTORATION ACTION: 1. Court shall commit in felony case; may commit in misdemeanor case for restoration 2. Case stayed 3. Rule 45 tolled 4. Use Court Form CR-265 Order of Commitment and Transport Order 5 Must schedule second hearing within 90 days Note best practice: ask psychologist how long it took for the defendant to 2. Compentency - First Evidentiary Hearing respond to previous treatment in last API stay, if any. Schedule second hearing within that amount of time. Also note: the defendant may not be involuntarily medicated under the Order for Psychiatric Examination for Legal Competence or the Order of Commitment and Transport. A hearing pursuant to Sell v. United States, 539 U.S. 166 (2003) must be requested by the prosecutor and held by the court. (See Involuntary Medications for Competency Restoration Hearing Checklist) FINDING 2. DEFENDANT NOT COMPETENT, NOT CAPABLE OF RESTORATION ACTION: 1. Case dismissed without prejudice 2. Any further commitment governed by the civil commitment process. (AS 47.30.700-47.30.915) FINDING 3. DEFENDANT COMPETENT ACTION: Stay lifted, schedule case for further proceedings (trial, plea, or sentencing Best practice: Schedule further proceedings as soon as possible. Defendant may not remain competent – competency is a dynamic process. Once found competent, defendant is returned to the Department of Corrections. Competence may not continue in that environment. 5 Judges’ Guide: Handling Cases Involving Persons with Mental Disorders ________________________________________________________________________________