The Conundrum of the UnrestorableIncompetent Defendant

The National Association of Mental Health Program Directors (NASMHPD) Forensic Division

Atlanta, GA September 23, 2014

Sue Austin, Ph.D, Louisiana Office of Behavioral HealthJuliet Follansbee, J.D. Executive Director, Oregon Psychiatric Security

Review Board

It is long established that a Defendant has a Constitutional Right to Participate in the Criminal

Proceeding Against Him

Legal Standard: Whether the accused "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. United States (1960)

By the Numbers

• Nation-wide, approximately 50,000 competency evaluations are performed each year

Louisiana

The Path to a Finding of Incompetent to Stand Trial (IST)/(ITP)

Defendant is Charged with a Crime

Issue of competency is raised

Judge orders a Sanity Commission Evaluation

Sanity Commission makes recommendation to court (see flow chart)

Judge rules Incompetent to Proceed (ITP)/Incompetent to Stand Trial (IST),

Three options

Hospital based restoration

90-Day Jail-Based restoration 648A(2)(a)

Community Based restoration 648A(1); 648(A)(2)(b); 648(A)(2)(c)

Time allowed for custody, care and treatment is limited 648(B)(1)

Once restored, criminal proceedings may commence

Determination of Unrestorable

• May be made:

– After hospital-based competency restoration

– After 90 day jail-based competency restoration

– Prior to receiving competency restoration

• Individual is remanded to DHH to determine need for civil commitment within 10 business days

– Psychiatric evaluation is ordered

– Doctor makes recommendation

If Commitment Recommended• DHH attorney files petition with court for:

• Hospital

• Nursing home

• Group home

• Forensic Aftercare Clinic

• Appropriate persons become involved to find recommended placement

If Commitment Not Recommended

• DHH attorney sends letter to court indicating that commitment is not recommended

• Court orders jail to release individual

• DHH connects individual with local behavioral health clinic for services

Louisiana Data

• 722 ordered to DHH as IST between 7/1/11 and 8/26/14

(includes hospital, jail-based and community restoration)

• 70% restored (505)

• 30% unrestored (217)

Louisiana Data

• 131 unrestored between 9/27/12 and 9/24/14

– 34% committed to hospital

– 10% committed for DD services

– 22% committed to other services

• Forensic Aftercare Clinic (10)

• Forensic Supervised Transitional Residential Aftercare Program (3)

• Nursing Home (2)

• Group Home (1)

• Residential Substance Treatment Facility (1)

• Assertive Community Treatment (1)

Oregon’s Response to Those Defendants Who Are not Restorable

The Path to a Finding of Incompetent to Stand Trial (IST)

Defendant is Charged with a Crime

Defense Counsel raises competency concerns

Judge orders an “Aid and Assist” Evaluation

If evaluation determines unable to Aid and Assist, judge orders restorative care (either at the hospital or in the community)

Once restored, criminal proceedings may commence (or dropped)

If not restorable, criminal proceedings are dismissed

Oregon Data Perspective

Since 2010, Oregon has seen an 89% rise in its Aid and Assist population, majority committed misdemeanors

In Oregon, 3 year maximum one can receive restoration services at the state hospital; may include involuntary medication

Oregon Addictions and Mental Health estimates approximately 10 patients per year are unrestorable who meet commitment criteria (or as we say in Oregon - “never ables”). Our State’s population is 3.9 million

Oregon’s SB 421 (2013)

• Driven by a high-profile murder case; workgroup/consensus bill • Hybrid of insanity aquittee and civil commitment processes but

essentially removes defendant from the Criminal Justice System and inserts patient into the Mental Health System

• Requires placement under the Psychiatric Security Review Board (PSRB) jurisdiction for supervision and monitoring with the option of indefinite 2 year re-commitment terms

• Includes Victim Rights • Hearings Open to the Public• Permits Board to place a client on conditional release

Commitment Criteria

LEGAL STANDARD: In order to be committed, the Court must find, by clear and convincing evidence the 3 prongs:

1st Prong

• The person is “extremely dangerous”– A person is extremely dangerous if he or she:

• (A) is at least 18 years of age; • (B) is exhibiting symptoms or behaviors of a mental disorder

substantially similar to those that preceded their dangerous act;• (C) because of their mental disorder, presents a serious danger to

the safety of other persons by reason of an extreme risk that the person will inflict grave or potentially lethal physical injury on other persons; and

• (D) unless committed, will continue to represent an extreme risk to the safety of other persons in the foreseeable future.

2nd Prong

• The person suffers from a mental disorder that is resistant to treatment;

– A mental disorder is “resistant to treatment” if, after the defendant receives care from a licensed psychiatrist and all reasonable psychiatric treatment options have been exhausted, or after refusing psychiatric treatment, the defendant continues to be significantly impaired in his or her ability to make competent decisions and to be aware of and control extremely dangerous behavior

– Mental disorder does not include someone who is diagnosed solely with a developmental disability/anti-social/personality disorder

3rd Prong Must have committed a“Dangerous Act” aka Crimes

• caused the death of another person;• caused serious physical injury to another person by means of a dangerous

weapon;• caused physical injury to another person by means of a firearm or

explosive;• engaged in oral-genital contact with a child under 14 years of age;• forcibly compelled sexual intercourse, oral-genital contact or the

penetration of another person’s anus or vagina; or • caused a fire or explosion that damaged the protected property of another

or placed another person in danger of physical injury, and the fire or explosion was not the incidental result of normal and usual daily activities.

Results of Commitment

• If the 3 prongs are found, the person is committed to the jurisdiction of the Psychiatric Security Review Board for 2 years

• Entitled to an initial hearing at 6 months; primarily focused on current placement

• Will not appear before the PSRB unless hearing is initiated by the hospital or community provider

• Returns to court at the 2 year mark for consideration of recommitment (could be indefinitely committed every 2 years)

Where Will the Client Receive Treatment?

• Probably the hospital at first

• Can be placed on Conditional Release by the Commitment Court or PSRB at any time

– Likely at a Licensed Secure Residential Treatment Facility (Operated by a Community Mental Health Agency)

– Must engage in treatment and follow conditions of release

– PSRB has revocation authority

Conditional Release (CR)

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• Process for conditional release:

– Treatment and risk assessments conducted by OSH

– OSH recommends CR

– Community reviews records, accepts for placement and submits a plan with recommended conditions

– Hearing, subsequent to four step review; hospital MD and community MD attend

Typical Conditions

• Treatment

– Twelve-step meetings

– Therapies (group, individual, DBT, sex offender treatment)

– 20 hours per week of structured activities that is up to the client and case manager

• Prohibited Conduct

– Alcohol Use

– Driving

• Interventions (probably always supervised by staff):

– Employment

– Education

– Volunteering

– Peer Support

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Oregon Stats (as of 9/1/14)

• Became Law in August 2013

• 2 Clients Under its Jurisdiction

• 1 male, 1 female

• 1 has been accepted for Conditional Release

– will be placed on conditional release at about the 1 year mark - a faster rate than the typical “Guilty Except for Insanity” client

• So far, most hearings have been stipulated

Oregon Resources

• Oregon Laws 2013, Chapter 715https://olis.leg.state.or.us/liz/2013R1/Measures/Text/SB421/Enrolled

• Oregon Administrative Rules 859-200-005 to 310 http://arcweb.sos.state.or.us/pages/rules/oars_800/oar_859/859_200.html

Juliet Follansbee, 503-229-5596Juliet.Follansbee@psrb.org

Questions/Discussion – How are other States managing these individuals?