Featured Article
Article Title
Forensic psychiatric issues in intellectual disability
Authors
Mark J. Hauser - Department of Psychiatry, Harvard Medical School, Newton, Massachusetts, USA
Robert Kohn - Brown University School of Public Health, Providence, Rhode Island, USA
Abstract
Forensic psychiatrists and neuropsychiatrists are likely to encounter individuals with intellectual disability as they are over-represented in the judicial system. These individuals may have the full range of mental illnesses and comorbid conditions, including physical infirmity, sensory deficits, language impairment, and maladaptive behaviors. They are frequently disadvantaged in the judicial system due to lack of comprehension, lack of accommodations, and stigmatization. Decision-making capacity may need to be assessed for health care, sexual autonomy, marriage, financial management, making a will, and the need for guardianship. The usual approach to conducting an evaluation needs adaptation to fit the unique characteristics and circumstances of the individual with intellectual disability. The forensic consultant can assist attorneys, defendants, and victims in recommending accommodations, and the expert witness can provide education to juries.
Keywords
capacity, caregivers, criminal justice system, death penalty, intellectual disability, victimization
Summary of Research
“[Intellectual disability] (ID) is defined in DSM‐5 as a disorder with onset during the developmental period that includes both intellectual and adaptive functioning deficits in conceptual, social, and practical domains. DSM‐5 no longer relies predominantly on intelligence quotient (IQ) test scores in defining severity of ID; instead it focuses on deficits in intellectual function, such as reasoning, problem solving, planning, abstract thinking, judgment, academic learning, and learning from experience, confirmed by both clinical assessment and individualized standardized intelligence testing, and on deficits in adaptive function that result in failure to meet developmental and sociocultural standards for personal independence and social responsibility… At times in forensic proceedings, the fallacious argument has been made that the relevant deficits in adaptive behavior must be caused by low intelligence. However, no causal link is required with IQ or low intelligence and deficits in adaptive behavior. ID is a heterogenous disorder with a broad range of etiologies and a range of severities” (p. 206).
“People with ID experience more difficulty accessing health care compared to people without ID and therefore may have more untreated behavioral issues… The life expectancy, although lower than the general population, is approaching that of the general population, except for severe and multiple disabilities. The increased longevity has placed additional demands on specialized services and supports for the aging population, in particular residential services. The chance of encountering forensic issues has increased” (p. 207).
“Individuals with a disability from age 12 and older are at increased risk of criminal victimization; however, those with cognitive disorders are at the highest risk, including those with ID… Individuals with ID may be unable to report the crime, they may not realize that the victimization is a crime, may think that how they are being treated is normal, and may view the perpetrator as a friend. Individuals with sexual and violent offending have a higher rate of having been victimized than offenders without ID…
There is a misperception that individuals with ID cannot serve as a witness as their deficits may preclude accurate testimony. In fact, they can often relate accurate accounts of events they have witnessed. The ADA protects the access to the legal system for individuals with disabilities, which is one of the conditions specifically identified (Public Law 101‐336, 1990). No mental qualifications for testifying as a witness are specified for criminal cases based on the Federal Rule of Evidence 601 (Public Law 93–595, 2020)…
Individuals with ID are disadvantaged, and their rights are placed at risk at each stage of the judicial process from contact with police, interrogation, criminal court proceedings and trial, and sentencing. There are multiple reasons that individuals with ID are at a higher risk of being disadvantaged in the criminal justice systems” (p. 209).
“Among the prison population, there is an overrepresentation of individuals with ID, comprising 4%–10% of the prison population. Most individuals with ID involved with the justice system have mild impairment. Rates of conviction and incarceration are higher for those without ID, and their sentences are longer. They are more likely to experience physical violence, sexual assault, theft, and manipulation by other prisoners. They are more likely to be denied due process in prison disciplinary, grievance, and other administrative proceedings, and are historically denied equal access to good time credits and prison services, including medical and mental health care” (p. 211).
“Individuals with ID are at increased risk to remain in pretrial incarceration. Bail is less accessible as they may lack funds to pay bail and their living situation might be unstable. The individuals with ID are disadvantaged at sentencing and are less likely to be able to competently plea bargain. Some individuals place themselves at increased risk by having provided incriminating evidence. Their testimony may be viewed as less reliable. Those with ID who are incarcerated may have more difficulty obtaining parole than other inmates. Due to the lack of accommodation, they may have a poor record of program participation. Once eligible for parole they may have an inability to impress the parole boards on interview. Once released, individuals with ID often have problems meeting parole requirements and find it more difficult than the average inmate to get a job” (p. 212).
“Individuals with ID deserve thorough consideration of their cognitive abilities and their adaptive functioning, especially when they come to the attention of forensic psychiatrists or neuropsychiatrists. An awareness of the special circumstances that face these individuals and complicate their assessment is necessary. The forensic psychiatrist or neuropsychiatrist can assist the legal process in navigating the gray areas of uncertainty in the assessment of various competencies and the issues of responsibility” (p. 215).
Translating Research into Practice
“When interviewing individuals with ID in a forensic setting, beginning with open‐ended questions may maximize accurate recall. Subsequently, proceed to more specific questions with clear simple vocabulary as needed” (p. 209).
“...Forensic psychiatrist or neuropsychiatrist with clinical and forensic knowledge specific to ID may have a role beyond that of an expert witness, as a consultant for both defendants and victims with ID. The evaluation, assessment, and treatment are frequently complicated by the impairments inherent in an ID diagnosis. When conducting an evaluation circumstances of the underlying condition and the acute presentation needs attention. The usual approach to conducting an evaluation needs adaptation to fit the unique characteristics and circumstances of the individual with ID. Certain strategies can improve the likelihood of a successful evaluation, including observation in natural settings, seeking information from collateral sources, taking steps to reduce the stress of the evaluation, and involvement of familiar caregivers” (p. 214).
“The forensic expert witness may educate the court and juries that a comorbid mental disorder does not erase the static nature and cognitive and adaptive deficits associated with ID, and about relevant etiological medical conditions. The consultant may suggest involvement of other medical professionals such as pediatrics, neurology, and genetics. In addition, the forensic consultant can help guide the legal team by providing education and assisting in mediation, deposition, and trial preparation. The forensic consultant can help assist with witness credibility, provide a better understanding of stereotypes that jurors may have about the defendant or witness with ID, and be able to educate the jury about the individual's disability. The forensic consultant can assist in improving communication by evaluating potential cognitive interpreters, as well as providing consultation regarding other potential accommodations such as courtroom configuration, need for a closed courtroom, and adapting direct and cross‐examination” (p. 215).
Other Interesting Tidbits for Researchers and Clinicians
“In Clark v California (United States, 1997) the court mandated that California should provide accommodations for individuals with developmental disabilities to be safe and be able to participate in meaningful facility activities” (p. 211).
“The Rehabilitation Act (Public Law 93‐112, 1973) and the Americans with Disabilities Act (ADA, Public Law101‐33, 1990) require that prison and jail officials avoid discrimination, individually accommodate disability, maximize integration of prisoners with disabilities with respect to programs, service, and activities, and provide reasonable treatment for serious medical and mental health conditions. The exception to the ADA is if a prisoner’s participation poses significant safety risks that cannot be mitigated, undue financial and administrative burdens, or require a fundamental alteration in the nature of the program. In addition, some courts allow discriminatory practices against disabled prisoners as long as the discriminatory policies serve legitimate penological interests. These exceptions may contribute to individuals with ID to frequently not receive the needed supports and services in prison” (p. 212).
“There is no federal standard on how to define ID. However, the court held in Hall v. Florida that states must follow current medical standards and that in testing standard errors of measurement need to be considered. Although the Supreme Court does not require that DSM‐5 be followed, in Moore v.Texas (2017) they defined the current medical manuals as the medical standard or the determination of ID but left it to the states to determine if the criteria were consistent with medical consensus. Subsequently, in Moore v.Texas (2019), the inclusion of adaptive deficits reported outside of prison needed to be considered in capital cases” (p. 212).
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