Immigrant status, absence of suspected feigning according to psychological testing and evaluator opinion, and being prescribed no medications or oral medications at the time of discharge from the initial hospitalization were significant predictors of readmissions. By identifying and addressing these factors during initial hospitalizations, evaluators and treatment teams may effectively decrease the rate of readmissions. This is the bottom line of a recently published article in the Journal of Forensic Psychology Research and Practice. Below is a summary of the research and findings as well as a translation of this research into practice.
Featured Article | Journal of Forensic Psychology Research and Practice | 2021, Vol. 21, No. 2, 91-117
Mollimichelle Cabeldue, Fairleigh Dickinson University
Debbie Green, Private Practice
Robert McGrath, Fairleigh Dickinson University
Brian Belfi, Kirby Forensic Psychiatric Center
In Drope v. Missouri (1975), the Supreme Court expanded the standard for competency outlined in Dusky v. United States (1960) requiring that judges be attuned to changes in defendants’ presentations throughout court proceedings, including following competency restoration. As such, concerns about competency to stand trial must be raised even for those defendants previously found competent or who underwent restoration treatment. This can result in multiple hospitalizations for defendants undergoing restoration, which can impact defendants’ abilities to resolve their legal cases, and has financial implications for hospitals. The literature offers little information on factors that may differentiate defendants requiring multiple hospitalizations for competency restoration from those restored following a single hospitalization. The current exploratory study sought to identify factors (i.e., diagnosis, severity of pending charges, level of intellectual functioning, chronicity of mental illness, modality of prescribed medication, and treatment compliance) that would differentiate those defendants requiring a single versus two or more admissions for restoration of competency. This retrospective study utilized psychological testing, hospital records, and demographic data for 465 English-speaking pretrial defendants, 123 (26.5%) of whom underwent more than one period of restoration, admitted for treatment over a period of nine years in New York State. Overall, immigrant status, absence of suspected feigning according to psychological testing and evaluator opinion, and being prescribed no medications or oral medications at the time of discharge from the initial hospitalization were significant predictors of readmissions. By identifying and addressing these factors during initial hospitalizations, evaluators and treatment teams may effectively decrease the rate of readmissions.
competency to stand trial, readmission, restoration, feigning
Summary of the Research
“Competency to stand trial evaluations are the most common of forensic evaluations and are continuing to grow in number. Extrapolating from data conducted by Bonnie and Grisso, an estimated 92,000 defendants are evaluated annually for competency to stand trial. Once individuals are found incompetent to stand trial, most receive competency restoration treatment in state psychiatric or forensic facilities. However, length of hospitalization and time to adjudication of competency varies across defendants and may vary by statutory guidelines” (p. 92).
“Repeat hospital admissions impact the ability of defendants to address legal charges in a reasonable time frame. Lengthy or frequent forensic hospitalizations can result in wait lists that delay treatment for other defendants and can contribute to further deterioration of functioning in jails. As of 2016, 37 states reported maintaining a wait list for inpatient competency restoration admissions, with wait times ranging from 7 to 252 days. Defendants may decompensate during lengthy delays, and individuals previously opined incompetent may become non-restorable. Further, delays may negatively impact the capacity of attorneys and defendants to strategize. The process of restoration has important financial implications as well, which are multiplied when defendants require repeat admissions. Given the impact on defendants’ due process rights and the financial burden associated with repeat restoration treatment, understanding factors related to repeat admissions is critical” (p. 92)
“Although there is considerable research focused on factors that predict opinions of competency to stand trial and restorability, as well as factors that relate to civil psychiatric readmissions, little is known about potential factors predictive of readmissions for competency restoration, despite the financial and personal implications for both the state and defendants. This exploratory study was the first of its kind, investigating differences between defendants with a single admission to a secure forensic psychiatric facility and defendants with multiple admissions based on the same charge. Overall, several variables significantly predicted readmission and may provide an understanding of factors that can be targeted in initial hospitalizations in order to decrease the rate of readmissions” (p. 105).
“The current study suggests that the odds of immigrants being readmitted for competency restoration are twice that in comparison to defendants born in the United States born. Notably, the vast majority of immigrants were not readmitted, but their proportion does exceed that of United States born defendants who were readmitted in this study. The rate of immigrant defendants in this sample (22.0%) is consistent with rates found in other related research conducted in New York. … It is not clear from the current results what about immigration status might be contributing to risk. Paradis et al. (2016) suggested that immigrants may be more likely to defer to those in authority positions, including their defense attorney. In the face of apparent acquiescence, an attorney may question a defendant’s rational ability to make case-relevant decisions, even after competency has been initially restored. Additionally, attorneys may misattribute communication barriers to mental illness or intellectual limitations, rather than to language or culture. Language issues may also interfere with a defendant’s understanding of aspects of the legal process and may lead to a superficial understanding of the concepts, which may be difficult to maintain after returning to jail. Language issues may also impact an immigrant defendants’ ability to communicate their understanding of particular legal concepts. … Further, immigrants may face unique diagnostic challenges that may delay effective treatment. … Overall, it is unclear why immigrant status would predict readmissions and there is ample room for additional research in this area, as better understanding of acculturation factors may inform this finding” (p. 105-106).
“Being on injectable medications compared to no medications or oral medications at the time of discharge decreased the odds of readmission. There is vast research demonstrating that injectable medication increases compliance and leads to better outcomes. Therefore, it is likely that being on injectable medications may have helped some defendants remain psychiatrically stable even after returning to jail post competency restoration. …. Of course, injectable medication may not be clinically indicated for some defendants and some defendants may not require medication. As such, it would be helpful to determine which defendants are prescribed injectable medication as there may be additional variables that signify the need for long-acting medication that may also impact readmissions. Although the vast majority of defendants in this sample were prescribed medications upon discharge, just over one in ten defendants were discharged on no psychiatric medications, and it is these defendants that had the highest odds of being readmitted in comparison to those who were prescribed medications at the time of discharge” (p. 106-107).
“The odds of defendants being readmitted who were exaggerating psychopathology based on testing results or opinions of evaluators was less likely. Evaluators of competency may be attuned to symptom exaggeration and, in situations where a subsequent competency to stand trial evaluation is requested, incorporate this information into their decision making. … Even though we used a low threshold for classifying feigning in this study and additional testing would be necessary to classify someone as “malingering,” it is possible that evaluators were at least noting concerns related to suspected exaggeration in their reports. Although evaluators should be considering all clinically-relevant information, including psychological testing in many cases, this does not always occur for a variety of factors (e.g., insufficient review of records, timing between testing and evaluation such that response style results may be of less utility). However, it is possible that results of testing were made available to the judge, attorney, or future evaluators and therefore used in competency decisions. … It is also important to note that 22% of the sample included immigrants, which also may have impacted the findings related to suspected exaggeration of psychopathology as recent research has shown that predictive and classification accuracy of feigning assessment measures with diverse populations varies widely” (p.107-108).
“Despite being developed in consideration of related literature diagnosis, level of intellectual functioning, whether a TOO [treatment over objection] order was pursued, length of potential sentence, length of initial hospitalization, and age of first psychiatric hospitalization, and history of civil psychiatric hospitalizations did not predict readmission. Neither diagnoses of psychotic disorders and cognitive disorders predicted readmissions, although a higher proportion of defendants with a psychotic diagnosis were readmitted than those without such a diagnosis. Two-thirds of the sample had a psychotic disorder diagnosis, so although psychotic disorder diagnoses may help evaluators reach an overall opinion about incompetency, it likely has less to do in differentiating those defendants who are readmitted in comparison to other variables” (p. 108).
“Maximum potential sentence did not significantly differentiate between the two groups as expected. The literature has demonstrated mixed findings related to this variable, with some studies finding that severity of legal charge is not associated with opinions related to competency, and some finding that it is related. Further, chronicity of mental illness (i.e., age of first hospitalization, presence of previous civil hospitalizations) did not predict readmissions either in our sample, despite previous literature showing that psychiatric history is a significant predictor of both incompetency and restorability decisions. Given the high rate of psychiatric history within the current sample, it appears that this variable is not a useful way to differentiate defendants requiring a single admission versus multiple admissions. … Length of initial hospitalization was not a significant predictor of readmissions for competency restoration either. Length of hospitalization may capture variable presentations of defendants. … Lastly, having a TOO order pursued was not a significant factor in readmissions, despite the fact that a TOO order reflects a level of treatment resistance that might relate to psychiatric stability” (p. 108-109).
Translating Research into Practice
“These findings suggest some variables may be useful to attend to when defendants are initially admitted for competency restoration or throughout their initial hospitalization. Perhaps most importantly, some defendants may benefit from being prescribed injectable medications, particularly those who may spend a long period of time incarcerated prior to addressing their charges and for whom injectable mediations are clinically indicated and available. As there is high potential for medication discontinuation and destabilization while incarcerated, a focus on increasing adherence may result in fewer readmissions. This finding has important implications for policy, both in forensic psychiatric settings as well as in correctional settings. As our findings suggest that hospital readmissions may be reduced for those on injectable medications, it may be important to consider policy regarding access and prescription of injectable medication; however, this may difficult in accounting for the need to consider least restrictive alternatives. At this time, it appears important to determine which defendants are being prescribed injectable medication and for which reasons physicians decide to prescribe long-acting medications, as research has yet to examine these issues” (p. 109).
“[C]ommunication of performance on psychological testing appears particularly important. Suspected exaggeration captured by test data was more prevalent in this study as compared to suspected exaggeration captured by evaluators’ opinions alone. The findings emphasize the importance of documentation of testing interpretations and observations related to feigning. When defendants are suspected of exaggerating symptoms, evaluators should be clear about documenting their concerns, particularly when genuine symptoms are also present, so that future evaluators can factor this information into decisions of competency and need for readmission. Of course, the fluctuating nature of response style needs to be considered. Conversely, it is also helpful to include a statement indicating that consideration for response style was made even when a defendant’s presentation is considered genuine” (p. 110).
Further, evaluators should ensure they are taking a culturally sensitive approach to competency evaluations, as is highlighted in The American Academy of Psychiatry and the Law Practice Guidelines for the Psychiatric Evaluation of Competency to Stand Trial. Immigrants were twice as likely to be readmitted for competency restoration in comparison to United States born defendants. … [G]iven that many competency to stand trial referrals are initiated by attorneys, it is also important to consider cultural factors at this point of the process. Evaluators and treatment teams should be particularly attuned to unique needs that immigrants have when hospitalized for competency restoration. These defendants may require translators in psychoeducational groups to ensure they develop an adequate factual understanding that can be maintained throughout the entire court process. Additionally, these defendants may require additional psychoeducation about the nature of their illness and necessity of long-term medication compliance, given the influential role of culture in perspective on mental illness. This is especially note-worthy given findings that showed that immigrants had less substantial psychiatric histories in comparison to United States born defendants in this sample. Our study did not assess interactions; however, it may be that such factors impact how evaluators possess or perceive immigrant defendants” (p. 110).
Other Interesting Tidbits for Researchers and Clinicians
Several of the study variables were coded dichotomously, including those assessing chronicity of mental illness and suspected exaggeration of psychopathology. Examining this information in a limited way likely impacted the findings and makes it difficult to draw conclusions about the results. The results are also limited by data that was unobtainable or not collected. For example, adherence to medication while in jail following initial discharge as restored was unknown. Similarly, data collection was limited by information that was available in medical records and by patient self-report. Some reported information such as number of previous hospitalizations and age of first
hospitalization was reported by defendants and could not be corroborate for accuracy. This may have impacted the results, which showed that chronicity of mental illness was unrelated to competency restoration readmissions. Additionally, data were limited by diagnostic opinions provided by evaluators, which varied based on individual evaluator. Recent research has demonstrated that evaluators are more likely to disagree than agree on diagnostic impressions of pretrial defendants, with perfect agreement only occurring in 18.3% of cases. (p. 111-112).
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