Mr. P, age 39, attacks a convenience store clerk with a knife and is charged with aggravated assault. The judge grants the defense attorney’s request that Mr. P’s competency to stand trial be evaluated. Mr. P’s medical records show paranoid schizophrenia diagnosed at age 22, multiple psychiatric hospitalizations, and chronic medication noncompliance.
You may be called on to determine capacity—such as whether a patient can provide informed consent for a medical procedure. Judges or juries make decisions about competency—often based on a psychiatrist’s opinion about a person’s capacity.
This article describes how to prepare a report stating your opinion about whether a defendant such as Mr. P is competent to stand trial.
What is competency?
The defendant’s attorney usually raises the question of whether a defendant is competent to stand trial, but a judge or prosecuting attorney also may suggest an evaluation. Defense attorneys question their clients’ competence to stand trial in approximately 8% to 15% of felony cases, and up to 50,000 defendants are referred for competency evaluations each year.1-4 Competency may be questioned when the defendant:
- is obviously mentally ill or has a history of mental illness
- appears to be making irrational decisions
- has difficulty interacting with the court or defense counsel.5
“Competency” and “sanity” are often used together in discussions of criminal prosecution of mentally-ill defendants. This article describes evaluating competence to stand trial; we will discuss how to evaluate sanity in a future issue of Current Psychiatry.
Competency is dynamic; the law defines many types, each with a legal definition and requisite capacity. A person may be competent in one area but incompetent in another. He may be incompetent to make a decision about psychiatric hospitalization, for example, yet retain competency to give or withhold informed consent for treatment.
Evaluating competency also is dynamic, depending on the patient’s present state:
- She might be incapable of giving informed consent for surgery while delirious but capable to make a competent decision about treatment after sensorium clears.
- A psychotic defendant may be incompetent to stand trial initially but may be restored to competency after treatment.
The ‘dusky standard’
Courts have long recognized that the mentally ill may be incapable of defending themselves against criminal charges (Box).6 The U.S. Supreme Court in 1960 established in Dusky v. United States that the legal standard for competence to stand trial is “whether [the person] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.” This standard has been adopted in principle by all states and the federal jurisdiction.7
The “Dusky standard” indicates that a defendant is incompetent to stand trial if, because of a mental illness or other condition, he is unable to:
- understand the nature and objectives of the court proceedings
- or assist in his defense (Table 1).
Judges ultimately determine defendants’ competence to stand trial, but psychiatrists’ opinions are adopted in 90% of cases.8,9
‘Mute by malice’ or ‘visitation of God’
Table 1The concept of competence to stand trial originated in 13th-century England. Persons charged with a crime were required to enter a plea in the King’s Court. Defendants who refused to enter a plea were either:
- confined and starved (“prison forte et dure”)
- or slowly crushed under the weight of stones (“peine forte et dure”).2
Before this punishment was exacted, the reason the alleged criminals did not enter a plea had to be determined. Defendants deemed mute by malice (intentionally withholding a plea) were subjected to the aforementioned cruelties. A defendant deemed mute by visitation of God (unable to comprehend that he was required to enter a plea because of mental illness/retardation) was spared, and a plea of not guilty was entered for him.
In the United States, a person’s right to be competent in legal proceedings is implicitly guaranteed by two constitutional amendments:
- right to counsel (Sixth Amendment)
- right to due process (Fourteenth Amendment).
The ‘Dusky standard’ of competence
| A defendant is incompetent to stand trial if he is: |
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| ‘Nature and objectives’ of a trial include: |
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| ‘Assisting in own defense’ includes ability to: |
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| Source: Dusky v US (1960) |