Psycholegal Abilities and Restoration of Competence to Stand Trial

Transcription

1 Behavioral Sciences and the Law Behav. Sci. Law 30: (2012) Published online 18 September 2012 in Wiley Online Library (wileyonlinelibrary.com).2040 Psycholegal Abilities and Restoration of Competence to Stand Trial Douglas R. Morris, M.D.* and Nathaniel J. DeYoung, M.S. Criminal defendants adjudicated incompetent to stand trial are typically hospitalized for competence restoration in state institutions. Prolonged restoration hospitalizations involve civil rights concerns and increasing financial costs, and there remains interest in determining which individuals are likely to be successfully restored. We retrospectively reviewed hospital records of 455 male defendants admitted to a forensic treatment center for competence restoration in an effort to determine whether psychiatric diagnoses, demographic factors, or psycholegal abilities were predictive of successful or failed restoration. At varying stages of restoration efforts, psychotic disorder, mental retardation, and previous state hospitalization predicted unsuccessful restoration, while substance use and personality disorders were predictive of successful restoration. Psycholegal abilities were predictive of successful restoration and appeared to form a continuum, with basic behavior and outlook, factual legal understanding, and rational attorney assistance factors demonstrating progressively increased importance in successful restoration. Copyright # 2012 John Wiley & Sons, Ltd. INTRODUCTION Assessment of competence to stand trial (CST), or adjudicative competence, remains the most common judicial referral for mental health evaluation (Melton, Petrila, Poythress, &Slobogin,2007)withrecentestimates of 50,000 to 60,000 such evaluations annually in the United States (Bonnie & Grisso, 2000; Skeem, Golding, Cohn, & Berge, 1998). Of those defendants evaluated, approximately one-quarter are deemed incompetent to proceed (Appelbaum & Gutheil, 2007; Melton et al., 2007). Most of these individuals are subsequently referred to inpatient hospital settings for restoration to competence (RTC) (Miller, 2003), resulting in thousands of annual state hospital and forensic treatment center admissions for competence restoration. Prior to the United States Supreme Court s 1972 Jackson v. Indiana decision, defendants adjudicated incompetent to stand trial (IST) often underwent indefinite hospitalization under their IST status (Appelbaum & Gutheil, 2007; Melton et al., 2007; Roesch & Golding, 1980). However, the Jackson court ruled that such indefinite hospitalizations violated defendants constitutional due process and equal protection rights and held that an individual committed solely on account of his incapacity to proceed to trial cannot *Correspondence to: Douglas R. Morris, M.D., Logansport State Hospital, IRTC, Logansport, IN 46947, U.S.A. drdmo@hotmail.com Logansport State Hospital, IRTC, Logansport, IN 46947, U.S.A. Department of Psychological Sciences, Purdue University, West Lafayette, IN U.S.A. Copyright # 2012 John Wiley & Sons, Ltd.

2 Psycholegal Abilities and Competence Restoration 711 be held more than the reasonable period of time necessary to determine whether there is asubstantialprobabilitythathewillattainthatcapacityintheforeseeablefuture. If this probability does not exist, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant (Jackson, 1972,p.738). While most states modified their statutes following Jackson, commentators continue to note that many states circumvent or resist the spirit of the decision (Fisher & Grisso, 2010; Hoge, 2010; Miller, 2003). The Jackson court did not define substantial probability or the reasonable period of time for restoration efforts, and states such as Indiana continue to lack statutory provisions to address either the length of time charges may persist for IST defendants or the disposition of defendants believed to be permanently incompetent. Other states link the period of restoration efforts to potentially long sentence lengths of the alleged charges, and prosecutors often may reinstitute criminal charges if it appears that an IST defendant is likely to be released to the community. While these practices do not per se violate Jackson s mandates, they continue to allow individuals to remain institutionalized for lengthy periods related to their IST status and continue to raise civil rights concerns. Further concerns about the fairness of civil commitment proceedings for IST defendants were recently confirmed in an Arizona study comparing unrestorable IST defendants undergoing civil commitment and matched involuntary community admissions (Levitt et al., 2010). The IST group met fewer admission criteria and received court-ordered treatment more often than did the community patients. The IST patients also had longer hospital stays despite being found less dangerous to themselves or others than the community sample. The results suggest that, despite Jackson s mandated protections, unrestorable IST defendants continue to be treated differently than other civilly committed individuals. The implications of these practices are important. In addition to ongoing due process and equal protection concerns, prolonged restoration hospitalizations involve increasing financial costs to already stressed state budgets. Long jail waiting lists for restoration beds have also led to conflicts between courts ordering defendants hospitalized for restoration and state mental health authorities unable to provide these services in a timely manner (Wortzel, Binswanger, Martinez, Filley & Anderson, 2007). Restoration referrals and prolonged hospitalizations of individuals unlikely to be restored exacerbate these problems. Despite these concerns, many commentators have noted a dearth of restoration research (Pinals, 2005; Scott, 2003; Zapf & Roesch, 2011). Competency restoration research is challenging to conduct due to the ethical and methodological obstacles inherent in working with criminal defendants who have mental disorders, including difficulty obtaining informed consent from individuals already deemed incompetent in one area, satisfying required federal protections involving prisoners, and minimizing confounding diagnostic and treatment variables (Scott, 2003). The restoration research that exists, outside of some descriptions of treatment programs for competence restoration, has involved efforts to identify variables associated with restoration success or failure through either (1) retrospective evaluation of factors associated with successful RTC following restoration efforts or (2) differentiation of clinical, demographic, and legal factors between defendants predicted restorable or not restorable at the time of their initial findings of incompetence. Unfortunately, early attempts to identify factors associated with restoration

3 712 D. R. Morris and N. J. DeYoung outcomes yielded only limited success and little guidance for courts and clinicians determining restoration likelihood. Rhodenhauser and Khamis (1988) noted that diagnoses of schizophrenia and personality disorders were not significantly related to ultimate restoration success, but defendants without a diagnosis of schizophrenia or a prior history of incarceration and, surprisingly, individuals who refused medication for more than one week while hospitalized were relatively successful with competency restoration. Bennett and Kish (1990) determined that race, education, and marital status did not affect average length of stay (LOS) for inpatient restoration efforts. While Nicholson, Barnard, Robbins, & Hankins (1994) also determined that demographic factors were not predictive of restoration success or restoration LOS, they identified an overall pattern suggesting that greater impairment in psycholegal ability and severe psychopathology were associated with unsuccessful restoration, and a history of criminality and substance use were associated with more successful outcomes. Carbonell, Heilbrun, and Friedman (1992) identified demographic, historical, and clinical variables that predicted competent vs. not competent with an accuracy rate of 72.2%. However, predictive accuracy dropped to 59.5% in the cross-validation sample, and the results of the cross-validation changed the authors interpretation from cautious optimism to skepticism regarding the ability of clinical and historical data to predict who will attain trial competency. Attempts to predict restoration potential when defendants are initially found incompetent to proceed have also met with mixed results. Despite statutory direction to provide an estimate of the likelihood of successful restoration (Alabama Rules, 2010), Hubbard, Zapf, and Ronan (2003) found that examiners either could not or did not render such an opinion for nearly half (42%) of the IST defendants. The authors postulated that complex psychiatric histories made restoration more difficult to predict and that political pressure to prosecute violent offenders may have influenced examiners to provide a restoration probability. Individuals charged with murder and those with previous criminal histories were more likely to be opined restorable, and individuals without criminal histories were more often opined unrestorable. Other characteristics of incompetent defendants predicted restorable included diagnosis of a nonpsychotic minor disorder (e.g., adjustment disorder or a personality disorder), ability to understand the criminal justice process, and younger age at evaluation. In a similar study, Warren et al. (2006) found that only prior convictions and diagnosis significantly distinguished restorable defendants from those with uncertain or unlikely restoration potential. Defendants deemed unrestorable had prior convictions less often and were less often diagnosed with psychotic or affective disorders, but more often had organic or intellectual/learning deficit disorders. Fortunately, rates of competence restoration are generally high, and studies of restoration success have revealed that 75 90% of individuals are restored in approximately six months of inpatient restoration efforts (Pinals, 2005; Zapf & Roesch, 2011). The low base-rate of failed restoration, however, makes it difficult to differentiate which defendants are likely or unlikely to be restored (Nicholson & McNulty, 1992; Zapf & Roesch, 2011), and clinicians tend to overpredict restorability (Cuneo & Brelje, 1984). For these reasons, authors have urged caution in attempting to predict restoration success (Carbonell et al., 1992; Nicholson et al., 1994; Nicholson & McNulty, 1992). In contrast to the limited findings of earlier restoration and prediction studies, more recent restoration studies have shown increasingly consistent trends in identifying

4 Psycholegal Abilities and Competence Restoration 713 demographic and clinical factors associated with restoration success or failure. Using demographic characteristics, diagnoses, and criminal and psychiatric information commonly available at the time of forensic evaluation, Mossman (2007) used logistic regression to create predictive equations to identify the probability of restoration. His findings identified two types of IST defendant with well-below-average probabilities of restoration: chronically psychotic defendants with histories of lengthy inpatient hospitalizations and defendants whose incompetence stemmed from irremediable cognitive disorders such as mental retardation. Through analysis of a state database of defendants hospitalized for competence restoration, Morris and Parker (2008) similarly identified psychotic diagnoses and mental retardation as associated with decreased restoration success. Admission to a state hospital with specialized forensic treatment services, female gender, and mood disorder diagnoses were associated with restoration success. Both studies identified increased age at hospital admission as associated with decreased RTC. Colwell and Gianesini (2011) found that nonrestorable patients had more prior hospitalizations, incarcerations, and episodes of incompetence, had lower level charges, were diagnosed with psychotic and cognitive disorders, were prescribed more medications, and had lower GAF scores. Restored patients were more likely to be diagnosed with personality disorders. These findings are consistent with Wolber s (2008) survey of clinicians/administrators at forensic hospitals regarding the conditions and diagnoses related opinions that a defendant was permanently unrestorable. Developmental disability, severe dementia and brain injury, and refractory and persistent mental illness (e.g., chronic schizophrenia) were the conditions most frequently associated with opinions of not restorable. Many responders also noted the influence of contextual factors, such as statutory lengths of allowed restoration efforts, type and severity of the alleged offense, perceived dangerousness of defendants, and pressure to free restoration beds and reduce waiting lists, on judgments of permanent incompetency. Overall, both recent empirical studies and clinician opinions have increasingly identified older individuals with chronic, treatment refractory severe mental illness or mental retardation as less likely to meet with successful restoration. Individuals with criminal histories and those with personality and nonpsychotic disorders appear more likely to be restored. While these trends are becoming more established, they remain general and of limited utility for forming opinions regarding a given individual s restoration potential. The practical utility of these trends is further diminished because courts may still deem low probabilities of success to be substantial enough to warrant restoration attempts (Mossman, 2007). Like other states, Indiana s competence to stand trial standard is based upon the Supreme Court s Dusky v. U.S. decision (Dusky, 1960) and requires that a defendant possess the ability to understand the proceedings and assist in the preparation of the defendant s defense (Indiana Code, 2010a). In Indiana, individuals adjudicated incompetent to stand trial are remanded to the custody of Indiana s Division of Mental Health and Addiction (DMHA) for competence restoration (Indiana Code, 2010b). While Indiana statute allows outpatient competence restoration, these services do not currently exist, and all defendants adjudicated IST undergo restoration efforts at Indiana state mental hospitals. Indiana statute allows a 90-day hospitalization for restoration efforts, which may be extended for an additional 90 days without formal court proceedings. Following these six months of restoration efforts, individuals not having achieved competence are referred for judicial determination of whether further hospitalization is warranted under civil commitment standards for dangerousness to

5 714 D. R. Morris and N. J. DeYoung self or others or grave disability (Indiana Code, 2008b). If civil commitment is granted, individuals continue competence restoration efforts in addition to typical state hospital treatment focused on treating symptoms of mental illness and promoting improved functioning. The primary goal of this study was to improve upon the existing understanding of factors associated with successful or failed competence restoration for the promotion of better direction to clinicians charged with restoration efforts and courts determining whether restoration efforts should be initiated or continued. While we first sought to solidify appreciation of the effects of clinical diagnoses and demographic factors on restoration success, we acknowledged the likely limitations of these factors. Diagnostic and demographic factors alone appear to be blunt instruments for dissecting restoration potential, and we sought to expand potential areas of inquiry to more functional defendant abilities. To this end, we examined defendants competency-related, or psycholegal, abilities during restoration efforts and whether such abilities were predictors of successful or unsuccessful competence restoration. METHODS This study received approval and monitoring from the Indiana University Institutional Review Board. Hospital records of individuals admitted to Logansport State Hospital s Isaac Ray Treatment Center (IRTC), a male forensic treatment center, for competency restoration from 2001 to 2009 were reviewed. Through review of hospital records, a database of clinical, legal, and demographic data was created. The psycholegal functions known as the McGarry criteria (Table 1) were formulated by McGarry (1973) during the development of the Competency to Stand Trial Assessment Instrument (CAI). Although McGarry s original monograph is no longer available from the National Institute of Mental Health, authors continue to detail the development, strengths, and weaknesses of this instrument that has influenced the development of almost all other instruments for CST evaluations (Grisso, 2003; Melton Table 1. McGarry criteria (adapted from McGarry, 1973) McGarry ability Shorthand notation* 1. Ability to appraise the legal defenses available. Appraise defenses 2. Level of unmanageable behavior. Manage behavior 3. Quality of relating to attorney. Relate to attorney 4. Ability to plan a legal strategy. Plan strategy 5. Ability to appraise the roles of various courtroom participants. Court participants 6. Understanding of court procedure. Court procedure 7. Appreciation of the charges. Appreciate charges 8. Appreciation of the range and nature of possible penalties. Possible penalties 9. Ability to appraise the likely outcome. Likely outcomes 10. Capacity to disclose pertinent facts surrounding the offense. Disclose pertinent info 11. Capacity to realistically challenge prosecution witnesses. Challenge witnesses 12. Capacity to testify relevantly. Testify relevantly 13. Manifestation of self-serving versus self-defeating motivation. Appropriate motivation *Shorthand notation of McGarry criteria used throughout the manuscript and relevant tables.

6 Psycholegal Abilities and Competence Restoration 715 et al., 2007). The purpose of this instrument, consisting of a series of 13 functions related to a defendant s ability to cope with the trial process in an adequately selfprotective manner, was to standardize, objectify, and quantify the relevant criteria for competency (McGarry, 1973, p. 24) and provide legally relevant information to courts regarding a defendant s ability to cooperate with his attorney in his defense and understand the nature, objectives, and consequences of the legal proceedings (Grisso, 2003). The CAI s McGarry items were originally meant to be scored on fivepoint Likert scales for individually forming testimony when combined with other sources of information. While the scoring criteria and coverage of the CAI have been criticized (Skeem, Golding, & Emke-Francis, 2004), the McGarry criteria have remained a useful tool for structuring competency evaluations (Appelbaum and Gutheil, 2007; Zapf and Viljoen, 2003), and the high face validity of the 13 functions may facilitate their acceptance among judges and attorneys (Melton et al., 2007). To promote thorough and consistent competency evaluations, Logansport State Hospital asks its psychiatrists to assess each evaluee s McGarry abilities and document these findings in their competency reports. Through information obtained from competency reports, we were able to ascertain which McGarry criteria an individual satisfied at three-month and, if unrestored at three months, six-month competency evaluations. During the study period, 460 adult defendants were admitted to IRTC for competency restoration. To avoid duplication of data from individuals with multiple IST admissions, only the first admission for a given individual during the study period was analyzed. For study inclusion, an individual must have undergone at least one formal CST evaluation during his hospitalization. Three potential subjects were excluded from the study: one each due to death, serious medical decompensation requiring transfer, and charges dropped prior to formal CST evaluation. Two other subjects were excluded because they began their restoration commitments at another state hospital before transfer to IRTC. An additional subject died prior to the second CST evaluation and was not included in the six-month analysis. The final subject pool of 455 individuals was eligible for 649 formal competency evaluations during the study period. Full evaluations with McGarry criteria were available for 628 of these evaluations (96.8%). Clinical diagnoses were categorized as psychotic disorder (schizophrenia, schizoaffective disorder, delusional disorder, and psychotic disorder not otherwise specified (NOS)), mood disorder (major depressive disorder, bipolar I or II disorder, and mood disorders NOS), substance use disorder (substance abuse or dependence), personality disorder, and mental retardation (MR). Individuals with multiple diagnoses were identified as suffering from disorders in all applicable categories, and a mental retardation/mental illness (MR/MI) category was created for individuals with mental retardation and a psychotic, mood, substance use, or personality disorder. Demographic data including race, age at admission, presence of previous state hospitalization, and severity of referral charges was documented. Dates of admission and formal competency assessments were recorded, and length of hospitalization and times to first and second competency evaluations were calculated. Restoration success was based upon evaluator judgment that an individual had attained the ability to proceed with his charge(s) and the hospital s certification of such to the referring court. Following such certification, Indiana statute requires that a defendant immediately return to continue his proceedings as if no delay or postponement had occurred (Indiana Code, 2008a) and without another formal

7 716 D. R. Morris and N. J. DeYoung competency hearing. In this study, from both practical and legal perspectives, clinician judgment of successful restoration was indicative of successful restoration. 1 Data Analyses To address the primary research questions, dichotomous patient diagnostic and demographic variables were coded as +1 or 0 to indicate presence or absence. The 13 individual McGarry criteria were also coded + 1 or 0 to indicate whether a subject was assessed as having this ability. The data were used to predict competence within three and six months. The first series of analyses focused on the full patient sample and variables that predicted competence to stand trial at the three-month evaluation (i.e., the first formal evaluation) using data collected from this evaluation. Odds ratios and logistic regression were used to predict the likelihood of successful restoration at three months using the demographic and diagnostic variables. The high correlations and uneven response distributions of the individual McGarry criteria interfered with the standard error estimate for each variable and subsequently made a maximum likelihood estimate inappropriate. Furthermore, the quasi-complete separation of many of the McGarry criteria in relationship to predicting competency presented instances where the odds ratios were incalculable because the odds ratio would be either zero or infinite (i.e. a large number of items possessed a cell with zero observations in the 2 2 matrices). In light of these conditions, the positive and negative predictive values of the individual McGarry criteria for successful or failed restoration are presented. Because the McGarry criteria could not be tested individually, an exploratory principal component analysis (Varimax rotation) was used to determine the factor structure of the McGarry criteria. The resulting factors were used in a logistic regression equation to predict the probability of a successful restoration. Using the separation of items revealed in the three-month principal component analysis, we further characterized the McGarry criteria by the general psycholegal abilities they most represent. After moving the manage behavior item to a basic behavior and outlook group (because this item had a better conceptual fit to that subgroup), we were left with three subgroups of McGarry items corresponding to basic behavior and outlook (manage behavior and appropriate motivation), factual legal understanding (possible penalties, appreciate charges, likely outcomes, court participants, court procedures, appraise defenses), and rational attorney assistance (plan strategy, testify relevantly, challenge witnesses, disclose pertinent info, relate to attorney). We then determined proportions of expected responses within the three subgroups for each individual (i.e., psycholegal abilities present for individuals opined competent and these abilities absent from individuals remaining incompetent) and subjected these proportions to analysis of variance (ANOVA) to determine whether our McGarry subgroups significantly differed in ability to predict restoration success or failure. The second group of analyses assessed individuals who were not successfully restored at the three-month evaluation. This group of analyses judged predictors of being found competent to stand trial at the six-month evaluation (the potential second formal evaluation) using data collected at the six-month evaluation. The analyses in these sections 1 If as proceedings continue, the trial court again becomes concerned that a defendant may be incompetent to proceed, the court may seek de novo evaluations of a defendant s competence. If the defendant is opined incompetent, he is again referred to the Indiana s DMHA for restoration efforts.

8 Psycholegal Abilities and Competence Restoration 717 mirrored those used in the first section. Finally, we used regression analysis of diagnoses, demographic factors, and psycholegal abilities at the three-month evaluation to form a predictive equation for subsequent probability of successful restoration at the six-month evaluation. RESULTS Sample Demographics Demographic information for the 455 eligible subjects revealed that 51.9% of the subjects were white, 45.1% black, and 2.2% Hispanic. Mean admission age was 35.9 years (SD = 11.67) and ranged from 18 to 69 years. Table 2 provides diagnostic information for the sample. High comorbidity was present within the study population, with 63.4% of subjects holding diagnoses in two or more of the defined diagnostic categories. Thirty-three percent had a single diagnosis, and sixteen patients (3.5%) did not have a diagnosis defined in the study. The index restoration hospitalization was the first state hospitalization for 78.5% of the subjects. The other 21.5% of subjects had undergone one or more previous state hospital admissions. The median length of stay for the episode of interest was 113 days. Pending felony charges were held by 92.1% of subjects. The remainder held only misdemeanor charges. Competence Restoration at Three Months The average length of hospitalization at formal competency evaluation during the initial three-month restoration commitment was 71.1 days (SD = 19.7), and 260 of the 455 subjects (57.1%) were opined competent at this evaluation. The mean age of the restored and unrestored groups did not differ. Table 2 illustrates diagnostic and demographic prevalence rates between individuals restored and remaining unrestored. Significance was tested for differences in the prevalence rates using a two-proportion z test. Tests of proportions did not reveal significant differences in regards to race, previous state hospitalization, or presence of pending felony charges between patients who were restored and those who remained unrestored. While there was no difference in restoration rate based on the presence of a mood disorder, there were significant differences in restoration rates for the other diagnoses. Psychotic disorders, mental retardation, and comorbid MR/MI were significantly more prevalent in the group that remained incompetent at the three-month evaluation. Personality disorders and substance use diagnoses were significantly more prevalent in the group found competent at the three months. Odds ratios and phi coefficients for each disorder in relationship to successful restoration at the three-month evaluation are also presented in Table 2. Odds ratios less than one indicate decreasing likelihood that individuals with a diagnosis were successfully restored compared to individuals without the diagnosis. Diagnosis of a psychotic disorder, mental retardation, and comorbid MR/MI suggested a decreased chance of restoration at the three-month evaluation. A personality disorder or substance use diagnosis had the opposite effect, predicting greater likelihood of successful restoration at the three-month evaluation. The phi coefficients mirror this pattern.

9 718 D. R. Morris and N. J. DeYoung Table 2. Diagnostic and demographic prevalence rates for individuals restored and remaining unrestored at three and six months of restoration efforts Criteria Overall n Total prevalence (%) Prevalence in individuals restored (%) Prevalence in unrestored individuals (%) p value Odds ratio Phi coefficient 3-month evaluation 6-month evaluation Diagnosis Psychotic disorder < Mood disorder Substance use disorder Personality disorder Mental retardation < Comorbid MR/MI < Race White Black Hispanic Current felony charges Previous state hospitalization Diagnosis Psychotic disorder Mood disorder Substance use disorder < Personality disorder Mental retardation Comorbid MR/MI Race White Black Hispanic Current felony charges Previous state hospitalization Note: p values are the result of the two proportion z test for the differences in prevalence rate between restored and unrestored groups. Due to insufficient sample sizes, significance testing for Hispanic race was not completed.

10 Psycholegal Abilities and Competence Restoration 719 Multivariate logistic regression was used to assess each variable s effect on restoration success at three months. A backward stepwise approach evaluated the demographic and diagnostic variables to create a prediction equation. The removal criterion was set at p > 0.10 and the reentry criterion was set at p < A three-variable equation (Equation (1)) was produced to predict the probability of restoration success: logit p ¼ 0:80 þ 0:52ðsubstance DxÞ 1:59ðMR DxÞ 0:95ðpsychotic DxÞ (1) When predicting the probability of restoration success, psychotic disorder and mental retardation diagnoses significantly decreased the probability while a substance abuse diagnosis significantly increased the probability of restoration success at three months. A principal component analysis (PCA) of the 13 McGarry criteria from the threemonth evaluation suggested a two-factor solution accounting for 71.2% of the cumulative variance in the data (Table 3). The six items loading on the first factor (possible penalties, appreciate charges, likely outcome, court procedures, court participants, appraise defenses) can best be described as relating to factual understanding of legal proceedings. The second factor captured six items related to ability to provide rational assistance to one s attorney (plan strategy, testify relevantly, challenge witnesses, disclose pertinent info, relate to attorney, manage behavior). Items were then summed by respective factor (a score of 1 6) and placed into a multivariate logistic regression to assess their ability to predict restoration success at three months. The diagnostic variables in Equation (1) were controlled by forcing them into the regression as covariate variables. They are not reported since none of them reached significance. Both the factual understanding and rational assistance McGarry factors remained significant predictors of the successful restoration at three months after controlling for diagnostic variables. Table 3. Principal component analysis of McGarry criteria Rotated component matrix 3-month components* 6-month component Items Possible penalties Appreciate charges Likely outcomes Court participants Court procedures Appraise defenses Plan strategy Testify relevantly Challenge witnesses Disclose pertinent info Relate to attorney Manage behavior Appropriate motivation % variance *For the three-month components, scores > 0.6 (component 1) are grouped to form the factual understanding factor. Scores > 0.6 for component 2 form the rational assistance factor.

11 720 D. R. Morris and N. J. DeYoung A two-variable equation (Equation (2)) was produced to predict the probability of restoration success (non-significant covariates omitted): logit p ¼ 43:99 þ 5:13ðsum rational assistance Þþ3:56ðsum factual understandingþ (2) As expected, this model reveals that higher scores on either of the McGarry factors lead to an increase in the probability of restoration success at three months. However, an increase in the rational assistance score will have a larger impact on increasing the odds of a successful restoration. The odds ratio for the factual understanding factor is 35.2, whereas the odds ratio for the rational assistance factor is Table 4 presents the positive and negative predictive values for the individual McGarry items at three months on ultimate competency determinations at that time. For the majority of items, failure to successfully demonstrate a given ability coincided with failed restoration with negative predictive values (NPVs) of % for 12 of the 13 individual McGarry items on restoration success. Positive predictive values (PPVs) of the McGarry items were more variable and ranged from 65.1% to 88.3%. For many McGarry items at the three-month evaluation, there was a substantial probability that individuals who met a given ability would not be successfully restored, with eight of the items having PPVs of less than 80%. Less than two-thirds of individuals meeting the manage behavior and appropriate motivation items were successfully restored. To examine the ability of subgroups of McGarry abilities to predict successful or failed restoration outcomes, we used a 3 2 ANOVA to compare the proportions of expected responses within each subgroup. Items that perform well have higher proportions of psycholegal abilities present in individuals opined competent and higher proportions Table 4. Positive and negative predictive values of individual McGarry criteria for successful competence restoration at three and six months Three months Six months Items Negative predictive value (percent) Positive predictive value (percent) Negative predictive value (percent) Positive predictive value (percent) Plan strategy Challenge witnesses Relate to attorney Likely outcomes Testify relevantly Disclose pertinent info Possible penalties Court procedure Court participants Appraise defense Appreciate charges Manage behavior Appropriate motivation Positive predictive value (PPV) equals the percentage of subjects successfully restored and possessing a given McGarry ability among all subjects possessing that ability. Negative predictive value (NPV) equals the percentage of subjects remaining unrestored and failing a given McGarry ability among all subjects failing that ability.

12 Psycholegal Abilities and Competence Restoration 721 of absent psycholegal abilities in individuals remaining incompetent. A significant main effect was present between the abilities of the subgroups to predict successful versus failed restoration (F(1, 1306) = , p <.001). Overall, significantly higher proportions of expected item responses within the McGarry subgroups were found for successful restoration compared to failed restoration. For individuals successfully restored, the McGarry subgroups significantly differed in their ability to predict successful restoration (F(2, 248) = 7.95, p <.001). The basic behavior and outlook items had significantly lower proportions of expected responses (M = 0.976; SD = 0.116) compared to the factual understanding (M = 0.999; SD = 0.015) and rational assistance (M = 0.996; SD = 0.028) items. As a group, basic behavior and outlook items were not as good at predicating a successful restoration compared to the other two subgroups. The McGarry subgroups also significantly differed within individuals who were not successfully restored (F(2, 185) = 96.59, p <.001). The basic behavior and outlook subgroup had a significantly lower proportion of expected responses (M = 0.305; SD = 0.345) compared to the factual understanding (M = 0.614; SD = 0.346) and rational assistance (M = 0.772; SD = 0.299) subgroups. Post hoc comparisons indicated that all three groups of items significantly differed from each other at the p <.001 level. Rational assistance items were the best at predicting a negative outcome while the basic behavior and outlook items fared the worst. Competence Restoration at Six Months Individuals who were not successfully restored during the initial three months of hospitalization were again evaluated for competency three months later. The length of stay at this evaluation, the six-month or second formal evaluation, was days (SD = 19.2). One hundred and ten of the remaining 194 subjects (56.7%) were opined competent at this evaluation. Similar to the three-month results, the mean age between groups did not differ. Table 2 illustrates the group differences in the prevalence rates of specific diagnoses at the second evaluation. In contrast to the three-month comparison, the only clearly significant difference was in the prevalence of a substance use diagnosis (p <.001). Those who were successfully restored at six months had a higher likelihood of having a substance use diagnosis compared to those who were not restored. The difference in the prevalence of personality disorder diagnoses trended towards significance (p =.050). All other diagnostic, demographic, and legal variables did not significantly vary between groups. Odds ratios and phi coefficients for each disorder s relationship to successful restoration at the six-month evaluation are also presented in Table 2. Presence of a substance use diagnosis or personality disorder increases the odds of successful restoration at the six-month evaluation. The phi coefficients mirror this pattern. A backward stepwise approach used the demographic and diagnostic variables to create a prediction equation. The removal criterion was set at p > 0.10, and the reentry criterion was set at p < This produced a four-variable equation; however, two of the variables did not contribute to the model and were removed. The final equation (Equation (3)) mirrored the results from the odds ratio analyses. When predicting the probability of restoration success at six months, a previous hospitalization significantly decreased the probability of restoration, and a substance use diagnosis significantly increased the probability of restoration.

13 722 D. R. Morris and N. J. DeYoung logit p ¼ 0:20 þ 1:26ðsubstance DxÞ 0:74ðprevious hospitalizationþ (3) The PCA of the McGarry criteria from the six-month evaluation suggested a one-factor solution accounting for 84.6% of the variance in the data (Table 3). All 13 items were summed to create an overall competence score (1 13) and placed into a multivariate logistic regression to assess its ability to predict restoration success at six months. The significant diagnostic variables from the previous equation were controlled by forcing them into the regression as covariate variables, but they did not remain significant after introducing the competence score variable. A one variable equation was produced to predict the probability of restoration success (non-significant covariates omitted). Not surprisingly, the model indicates that a higher sum score on the McGarry competency items leads to an increase in the probability of restoration success at six months. logit p ¼ 24:48 þ 2:16ðsum competence scoreþ (4) However, the overall competence score does not provide information regarding the function of individual McGarry items. Table 4 again presents the positive and negative predictive values for each McGarry item on the ultimate restoration decision at six months. Similar to the McGarry criteria at three months, NPVs remained high, typically %, and PPVs were lower and more variable ( %). Although PCA analysis for the McGarry items at six months produced only a one-factor solution, we again evaluated whether proportions of expected responses within our three previously defined McGarry subgroups significantly differed at six months. ANOVA results mirrored those at three months. For individuals successfully restored, basic behavior and outlook items had significantly lower proportions of expected responses (M = 0.967; SD = 0.124) compared to the factual understanding (M = 0.995; SD = 0.028) and rational assistance (M = 0.991; SD = 0.042) items. Among individuals who were not successfully restored, proportions of McGarry abilities again significantly differed (F(2, 243) = 53.85, p <.001). Rational assistance (M = 0.790; SD = 0.274) items had higher proportions of failed abilities than factual understanding (M = 0.634; SD = 0.313), and both groups had higher proportions failed abilities than basic behavior and outlook (M =0.293; SD=0.351). Post hoc comparisons indicated that all three groups of items significantly differed from each other at the p <.001 level. Rational assistance items remained best at predicting a negative outcome while the basic behavior and outlook items again fared the worst. Using diagnostic and demographic variables and three-month McGarry abilities to predict successful restoration at six months produced a three-variable equation (Equation (5)) with substance use diagnosis and the sum of the factual understanding items increasing the probability of successful restoration at six months. Psychotic disorder again had a negative influence on restoration. logit p ¼ 0:28 þ 1:21ðsubstance DxÞþ0:24ðsum factual understandingþ 0:77ðpsychotic DxÞ (5) DISCUSSION The results of this study are generally consistent with the trends reported in recent restoration studies. The 81.3% restoration success coincides with the 75 90% of

14 Psycholegal Abilities and Competence Restoration 723 individuals typically restored within six months of restoration efforts (Pinals, 2005; Zapf & Roesch, 2011). Psychotic disorders and mental retardation remained consistent with expert opinions of decreased restoration potential (Wolber, 2008) and recent empirical findings of unsuccessful RTC (Morris & Parker, 2008; Mossman, 2007). Prior state hospitalization was also a predictor of decreased restoration success at six months, a finding consistent with previous findings linking lengthy periods of psychiatric hospitalization with poor restoration outcome (Mossman, 2007). As Mossman noted, extended prior hospitalizations are a clinical indicator implying poor response to past treatments and probable poor response to future efforts. With nearly 70% of our subjects diagnosed with a psychotic disorder, responsiveness to treatment with antipsychotic medications likely had a large impact on restoration efforts. At least one-fifth to one-third of all patients with schizophrenia are resistant to antipsychotic medications (Conley & Kelly, 2001), and treatment resistant symptoms increase the probability that an individual has undergone repeated hospitalizations. Clinical factors such as earlier illness onset, number of psychotic episodes, and increased duration of untreated psychosis have correlated with treatment resistant schizophrenia (Henna & Elkis, 1999; Lindenmayer, 2000), and it is likely that such factors would continue to contribute to diminished treatment response during restoration efforts. Identification of symptom clusters and treatment variables associated with poor treatment response is beyond the scope of this study, but these factors most certainly contribute to our findings that both psychotic disorder and previous state hospitalization decrease the probability of restoration success. Separation of these factors during further studies of competence restoration would advance understanding of the complex interplay between symptoms and competence-related abilities that may be associated with lack of adjudicative competence and challenges to restorability (Rotter & Greenspan, 2011). Personality disorders were associated with restoration success. During initial CST evaluations while defendants are incarcerated, reliable personal and psychiatric history is often limited. Under such circumstances, the cognitive, affective, and interpersonal impairments of personality disorders, potentially in conjunction with Axis I mental disorders, can lead to sufficient concern to produce an opinion that an individual is incompetent and hospitalization for RTC is warranted. However, while individuals with personality disorders have persisting and inflexible maladaptive traits, these individuals do not typically experience persistent psychotic and cognitive impairments (APA, 2000). With sustained treatment and observation in a structured hospital setting, Axis I and Axis II pathology is differentiated, and the contributions of maladaptive personality characteristics are less likely to result in protracted incompetence. The presence of a substance use disorder remained a predictor of restoration success throughout the study. At first glance, this finding appears easily explained, as one would expect impairments from substance-induced symptoms to clear with abstinence and render defendants better able to process information and participate in their proceedings. However, based on our experience, the time between arrest and initial assessment of CST is typically two to six months, sometimes longer, and most defendants are held in jail during this time. During this period of abstinence prior to determination that a defendant is incompetent and requires restoration services, most acute intoxication and withdrawal effects should resolve. The positive predictor of a substance use diagnosis likely does not result from the reduction of the acute intoxication and withdrawal effects of substances, but may result from reduced disease burden of substance use disorders on other mental disorders (Dixon, 1999; Green, Drake, Brunette & Noordsy, 2007; Jané-Llopis &

15 724 D. R. Morris and N. J. DeYoung Matytsina, 2006) and/or more subtle long-term cognitive improvements with protracted substance abstinence, especially when alcohol, methamphetamine, and cocaine are involved (Fernández-Serrano, Pérez-García, & Verdejo-García, 2011; Iudicello et al., 2010; Vik, Cellucci, Jarchow, & Hedt, 2004). The unique feature of this study involved the ability to retrospectively examine defendants psycholegal abilities at the time of their competence evaluations, and this information yielded several interesting findings. First, principal component analysis of individuals McGarry abilities at the three-month evaluation grouped these abilities into two factors generally corresponding to the Dusky prongs with one factor related to basic factual legal understanding and the other grouping rational attorney assistance abilities. Increasing abilities in both groups predicted restoration success, but regression analysis revealed that the attorney assistance abilities appeared to carry more weight in competency determinations. High negative predictive values were found with 12 of the 13 McGarry items. This is not surprising, as failure of any of these abilities would be expected to cause serious doubt regarding a defendant s competence to proceed. However, positive predictive values of the McGarry items for restoration success were more variable. Certain items, such as manage behavior and appropriate motivation, had low PPVs, and more than a third of individuals who possessed these abilities were nonetheless opined unable to proceed. Like the item separation observed in the principal component analysis, items with intermediate PPVs tended to group with factual legal understanding abilities, and items with greater PPVs tended to group with the rational attorney assistance abilities. After observing apparent separation of the McGarry items with PCA and positive predictive values, we further divided the McGarry items into three subgroups: basic behavior and outlook, factual understanding, and rational attorney assistance. We tested the significance of these apparent differences in McGarry subgroups by comparing proportions of expected responses within each subgroup through ANOVA. Consistent with the differences in positive and negative predictive values among the individual items, individuals who were successfully restored had high proportions of positive responses within all three psycholegal subgroups of items. This was as expected, as failure of any single McGarry ability is likely to result in a finding of continued incompetence and place an individual within the group of unrestored subjects. Among unrestored subjects, the McGarry subgroups significantly differed with basic behavior and outlook, factual understanding, and rational attorney assistance demonstrating progressively higher proportions of failed psycholegal abilities and revealing progressively greater consistency of failed psycholegal abilities within these subgroups. A failed psycholegal ability within the rational assistance subgroup is more likely to be associated with other failed rational assistance abilities. Failure of a given psycholegal ability within the other subgroups tells one less about an individual s other abilities within these subgroups, and achieved or failed individual items within these subgroups are less consistent an ultimate opinion restoration success. Taken together, the results of the PCA, predictive values, and ANOVA support the McGarry subgroups separating into a tiered continuum with basic behavior and outlook, factual legal understanding, and rational attorney assistance demonstrating progressively increased consequence in successful restoration. These findings were encouraging and consistent with the importance of increasing focus on defendants rational understanding of their legal situations beyond a mere factual understanding of their proceedings (Brakel, 2003; Felthous, 2011). Given these findings, it was interesting that the factual legal