10/4/2017. Terry Kukor, Ph.D. ABPP and Dan Davis, Ph.D., ABPP Board Certified Forensic Psychologists Netcare Forensic Center

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1 Terry Kukor, Ph.D. ABPP and Dan Davis, Ph.D., ABPP Board Certified Forensic Psychologists Netcare Forensic Center 1. Brief overview of the current law 5 minutes 2. Mental Health data of youth in juvenile justice system, including incidence, prevalence, and common diagnoses 10 minutes 3. Methodology of Assessment 15 minutes 4. What to look for in forensic reports best practices 15 minutes 5. Overview of the Netcare Outpatient Competency Attainment Program 45 minutes 2 Section to of the Ohio Revised Code Became effective on 9/27/11 The forensic examiner must first rule in a threshold condition such as mental illness, intellectual disability, developmental disability, or other lack of mental capacity. There must be a clear connection between the threshold condition and problems with the functional legal capacities, i.e., the problem with understanding courtroom procedures or being able to assist in one s defense must be due to the threshold condition 3 1

2 The presumption of competence (which is rebuttable) extends only to juveniles 14 or older who do not have mental illness or developmental disabilities Consistent with research conducted by the MacArthur research network on Adolescent Development and Juvenile Justice (Steinberg, L. et al. (2003) approximately 30% of 11 to 13 year olds and approximately 20% of 14 to 15 year olds were as impaired in functional legal capacities as are seriously mentally ill adults who would likely be considered incompetent to stand trial 4 No statutory definition (for the purposes of competency determination) of mental illness Person with intellectual disability: means a person having significantly subaverage general intellectual functioning existing concurrently with deficiencies in adaptive behavior, manifested during the developmental period. Forensic examiners of juveniles need to be astute in the diagnosis of youths developmental capacities as well as juveniles mental disorders 5 The competency standard for adults is typically seen by the Court as a black or white standard, i.e., one either is or is not competent If the evaluator concludes that the child's competency is impaired but that the child may be enabled to understand the nature and objectives of the proceeding against the child and to assist in the child's defense with reasonable accommodations, the report shall include recommendations for those reasonable accommodations that the court might make 6 2

3 A competency assessment report shall address the child's capacity to do all of the following: 1. Comprehend and appreciate the charges or allegations against the child 2. Understand the adversarial nature of the proceedings, including the role of the judge, defense counsel, prosecuting attorney, guardian ad litem or court appointed special assistant, and witnesses 3. Assist in the child's defense and communicate with counsel; 4. Comprehend and appreciate the consequences that may be imposed or result from the proceedings 7 Comprehend To understand the nature or meaning of; grasp with the mind; perceive (e.g., He did not comprehend the meaning of Dr. Kukor s remark. ) To take in or embrace; include; comprise Appreciate To fully grasp the scope and meaning To recognize the significance or magnitude (e.g., He did not grasp the significance of Dr. Davis remark. ) To take full or sufficient account of something 8 Comprehend: the juvenile s cognitive understanding of the charges cognitive understanding of the possible consequences Appreciate: the juvenile s Grasp of the scope and meaning of the charges & consequences Recognition of the significance or magnitude of the charges & consequences 9 3

4 The report shall not include any opinion as to 1. the child's sanity at the time of the alleged offense 2. details of the alleged offense as reported by the child 3. an opinion as to whether the child actually committed the offense or could have been culpable for committing the offense Grisso T (2013) Forensic Evaluations of Juveniles. Second Edition. Sarasota: Professional Resources Press In Juvenile Pre Trial and Juvenile Correctional Centers Approximately 2/3 of youth meet criteria for one or more serious mental disorders About 20% of these youth not only meet criteria for a serious mental disorder but also have chronic and multiple disorders that will persist into their adult years 12 4

5 This is about twice the prevalence of Seriously Emotionally Disturbed Adolescents in the general population Conduct Disorder 40% Substance Dependence 40% Mood Disorders 15 20% Anxiety Disorders 15 20% PTSD estimates range from 10 40% 13 Comorbidity: Meeting criteria for more than one disorder Found in about 50% of all youth in juvenile justice settings About 80% of youth with Conduct Disorder diagnoses meet criteria for one or more other disorders 14 Gender: Prevalence in females much greater than in males Race: Current research reports few reliable differences in prevalence for adolescents of various racial backgrounds. Somewhat lower rate of substance abuse for African American youth 15 5

6 16 MH Caseload in DYS: 1. Males: 47% 2. Females: 100% 3. Average total age Census as of 08/17= 508, of which 68 are in alternative placements 5. In addition, 626 youth are placed in 12 community based correctional facilities The class action suit S.H. v. Reed (mental health federal suit) dismissed

7 1. Consultation with defense counsel 2. Interview(s) with family members 3. Obtaining and reviewing relevant 3 rd party sources of information 4. Clinical interview of the youth 5. Psychological testing (if needed) 6. Juvenile Adjudicative Competence Interview (JACI) Specific questions/concerns a. Factual understanding b. Rational understanding c. Specific concerns about capacity to assist Confusion, detachment, inattentive/distracted, difficulty communicating, memory problems, peculiar behavior, immaturity, hostility 2. Availability of pertinent records a. Allows one to place interview behavior in context and interpret it in terms of known history and development Pertinent History a. Developmental b. Educational c. Mental Health d. Alcohol/Drug e. Legal 2. Adaptive Functioning: abilities to meet life demands in communication, self care, home living, interpersonal skills, use of community resources, selfdirection, academic skills, health, and safety 21 7

8 1. Types often needed a. Educational b. Medical c. Mental health services d. Juvenile justice e. Social services 2. Relevance for evaluation a. Integrity of data (contrasted to caretaker and child information only) 3. Psychological data for children and adolescents as perishable Can be useful in identifying youth s developmental status 2. Data pertinent to capacity to assist: ability to track a give and take conversation, impulsivity, self defeating motivation, regulation and control of affect, coherence of self disclosure, cognitive sophistication (e.g., difference between pleading guilty and feeling guilty) 3. How they problem solve (e.g., developmental capacity to understand hypotheticals) 4. Forming abstractions (proverbs for abstract thinking) 23 Common tests for cognitive abilities: ruling in ID or DD Wechsler Wide Range Achievement Woodcock Johnson Assessment of adaptive functioning Vineland Street Survival Skills Questionnaire 24 8

9 Common tests for adolescent psychopathology: ruling in mental illness Minnesota Multiphasic Personality Inventory Adolescent (MMPI A) Millon Adolescent Clinical Inventory (MCMI) Achenbach Tests Child Behavior Checklist (caretaker, teacher) Youth Self Report 25 Tests for developmental maturity Social development Vineland Social Maturity Behavioral Assessment System for Children (BASC 2): ADLs, social skills, structured developmental history Abstract thinking WISC Similarities Do not yet have formal developmental measures suitable for clinical use for time perspective, risk perception, or peer influence 26 The Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST MR) Assesses the individual s knowledge/ability in the areas of basic legal concepts, skills to assist in defense, and ability to relate factual events about the case. No norms for individuals under the age of 18 Can be useful as an unscored structured clinical assessment of court related knowledge, beliefs, and attitudes 27 9

10 Developed by Thomas Grisso, Ph.D., ABPP (Forensic) Not a test: no rating, scoring, or norms The purpose is guided clinical judgment Assesses relevant functional abilities What juvenile defendants know, understand, believe, or can do that is relevant for CST Assesses capacity to remediate deficits with instruction Inquiry is structured by: Types of abilities Areas of content Notification of Purpose clear assessment of the youth s understanding 2. Multiple sources of information 3. Assessment of relevant threshold condition (mental illness, development disability, intellectual disability) 4. Identification of specific clinical problems and symptoms that interfere with functional legal capacities 5. Use of the Juvenile Adjudicative Competency Interview (JACI) to assess relevant functional abilities 30 10

11 6. Differentiation of capacities to comprehend and appreciate (e.g., parroting factual information) 7. Reasonable accommodation recommendations if appropriate 8. Absence of opinions on issues that are to be determined by Finder of Fact (e.g., opinion on likelihood of guilt or innocence) 9. Avoidable bias: e.g., an evaluation that should be neutral and objective being prepared by an advocate such as a clinician providing treatment Absence of gratuitous comments about 3 rd parties 11. Absence of unnecessary, non objective comments about the youth (e.g., physical attractiveness) 12. Consideration of bias in 3 rd parties 13. If a diagnosis is rendered: a. It should be in the current version of the DSM b. Criteria should be met c. Other possible dx should be considered Not indulging irrelevant detail (e.g., confusing present mental condition with mental state at the time) 15. Assessment of developmental sophistication (e.g., verbal abstraction ability) 16. Assessing for acquiescence in youth with intellectual disability 17. Avoid over reaching (e.g., misinterpreting normal fatigue or minor distractibility in a long assessment session as symptoms) 33 11

12 34 Operational since February of 2013 Designed to meet the needs of Courts who had adjudicated juveniles as incompetent to stand trial and have been recommended as suitable for outpatient attainment services. Fully comports with the statutory requirements of Sections of the Ohio Revised Code 35 Frequency of services: tailored to individual needs, most typical arrangement is once per week individual sessions Treatment duration: per the ORC, outpatient competency attainment services are provided for a period not exceeding: 3 months if charged with an act that would be a misdemeanor if committed by an adult 6 months if charged with an act that would be a F3, F4, or F5 if committed by an adult 1 year if the child is charged with an act that would be a F1, F2, aggravated murder, or murder if committed by an adult 36 12

13 What is the least restrictive level of care available for attainment within the time frame identified by statute? All youth referred to this program must have been recommended as suitable for outpatient attainment 37 What specific symptoms and/or problems result in the present lack of capacity? What specific capacities are lacking? Excluding focus on problems that do not contribute to incompetency Treatment plans should focus on the key factors identified in the juvenile competency evaluation report that are amenable to therapeutic change 38 Formal progress reports, which describe in detail treatment compliance and progress towards competency attainment goals, are filed with the Court thirty days after initiation of services and every 30 days thereafter until treatment ends Formal re assessments of competency are done by either the Clinical Specialist or experienced forensic psychologists from the Netcare Forensic Center employing the Juvenile Adjudicative Competency Interview (JACI), and are filed with the Court in the form of a formal report 39 13

14 A multidisciplinary program that is clinical in nature Staffed by an independently licensed Master s level Clinical Specialist and doctoral forensic psychologists Behavioral health treatment services for the mental illness, intellectual disability, developmental disability, or other lack of mental capacity identified in the juvenile competency examination report are provided by Master s level clinician and supervised by a boardcertified forensic psychologist 40 Guided by an individualized treatment plan, which is constructed to meet the specific competency related issues as identified in the competency evaluation report Tailored to help the child: 1. comprehend and appreciate the legal charge(s) 2. understand the adversarial nature of the proceedings, including the roles and functions of key courtroom personnel 3. assist in one s defense and communicate with counsel 4. comprehend and appreciate the consequences that may be imposed or result from the legal proceedings 41 Our program is clinical in nature: targets the clinical bases for problems with functional legal capacities (e.g., problems with capacity to assist that are related to symptoms associated with mental illness and/or development disability) Clinical emphasis on a skills based approach that youth adjudicated as incompetent helps them develop: 1. Symptom management techniques 2. Managing attitude and behavior 3. Interpersonal skills relevant to assisting in defense 4. Education to help them understand the legal process 5. Decision making and reasoning 42 14

15 For youth who have primary problems with comprehension of factual court related knowledge, we employ a training resource guide that was initially developed by the Department of Mental Health Law & Policy, The Louis la Parte Florida Health Institute at The University of South Florida, Tampa, which was modified to be consistent with the provisions of juvenile law in Ohio Quality of relating to attorney (e.g., ability to trust and communicate with attorney) 2. Capacity to disclose available pertinent facts to attorney (e.g., provide a rational, relevant, and consistent account of the offense(s)) 3. Capacity to realistically challenge prosecution witnesses (e.g., recognize distortions in prosecution testimony) 4. Self defeating attitude vs. motivation for favorable outcome 45 15

16 5. Stress tolerance a. Unmanageable behavior b. Ability to tolerate stress of trial or open court proceedings where the child may be fearful or embarrassed 6. Capacity to testify relevantly a. testify with coherence, relevance, and independence of judgment b. based on mental status examination and how they related to the Clinical Specialist and the examiner Capacity to comprehend instructions and evaluate legal advice regarding decisions 8. Ability to tolerate the stress of disclosing embarrassing details to defense counsel a. Can be a concern for younger children charged with sex crimes 47 Securing cooperation from parents/legal guardians Being mindful about timeframes at what point does the clock start ticking on attainment? Careful coordination with court officials 1. Ongoing communication about progress or lack thereof 2. Communication re non compliance: Who has the leverage? 48 16

17 Overemphasis on factual understanding Assuming that the ability to parrot taught information implies appreciation or comprehension Not accounting for developmental complications (e.g., the socially immature youth who is simply not able to discuss a charged sex offense without shutting down) Overlooking opportunities to identify reasonable accommodations Failing to identify subtle but important differences between comprehending and appreciating 49 Parents who are disorganized and miss appointments Youth who are exerting less effort that they are capable of putting forth Youth who run away from placements Parents who may be passively discouraging or actively subverting attainment efforts Rigid attainment periods that are indifferent to the number of kept appointments Youth who are incompetent for developmental as well as clinical or cognitive reasons, i.e., how is immaturity treated?