EVALUATOR CHALLENGES IN JUVENILE COMPETENCY EVALUATIONS REPORT WRITING

EVALUATOR CHALLENGES IN JUVENILE COMPETENCY EVALUATIONS: REPORT WRITING & ATTAINMENT RECOMMENDATIONS IVAN KRUH, PH. D. FORENSIC & CLINICAL PSYCHOLOGY – OSSINING, NY DSAMH Annual Forensic Examiner Training October 17, 2013

Competency to Proceed – Utah Law Juvenile Court Act (Chapter 6) 78 A-6 -105(30). Definitions. “Not competent to proceed” means that a minor, due to a mental disorder, intellectual disability, or related condition as defined, lacks the ability to (a) understand the nature of the proceedings against them or of the potential disposition for the offense charged; or (b) consult with counsel and participate in the proceedings against them with a reasonable degree of rational understanding.

Competency to Proceed – Utah Law Juvenile Court Act (Chapter 6) 78 A-6 -1301(7). Juvenile Competency. In conducting the evaluation and in the report determining if a minor is competent to proceed as defined in Subsection 78 A-6 -105(30) the examiner shall consider the impact of a mental disorder, intellectual disability or related disorder on a minor’s capacity to: (a) comprehend appreciate the charges or allegations; (b) disclose to counsel pertinent facts, events, or states of mind; (c) comprehend appreciate the range and nature of possible penalties, if applicable, that may be imposed in the proceedings against the minor; (d) engage in reasoned choice of legal strategies and options; (e) understand the adversarial nature of the proceedings; (f) manifest appropriate courtroom behavior; and (g) testify relevantly, if applicable.

Conceptualizing Competency to Proceed Several models to operationalize legal standard A four factor general model summarizes them Factual Understanding Rational Appreciation Accurate “beliefs” about what is understood about court Assisting Counsel Basic, concrete knowledge of the legal process Ability to participate with and meaningfully aid defense counsel in developing and presenting the defense Legal Decision Making Ability to consider legal alternatives and reach adequately contemplated legal choices

Evaluation Model (Grisso, 2003) Functional Are there deficits? Causal What is their cause? Contextual How will any deficits impact this defendant in their case? Conclusory Are the deficits adequately impairing to meet the legal test? Remedial (Attainment) Can the deficits be remediated?

Evaluator Challenges in Juvenile Competency Evaluations Report Writing

Forensic Evaluation Reports Everything of importance to forensic psychological assessment culminates in the expert’s report. (Gagliardi & Miller, 2007, p. 539).

Primary Purposes of Forensic Evaluation Reports Inform attorneys and legal decision-makers so that sound legal decisions can be reached. Create a legal record Current Case Judicial Assessment of Veracity of Conclusions Informs Attorney Decision to Challenge Conclusions If so, allows for Meaningful Cross-Examination Structures Direct Examination Reference Resource for Examiners in Testimony Appellate Process Future Cases Examinee is Involved In

Primary Purposes of Forensic Evaluation Reports The Forensic Audience Forensic evaluations are consumed by others who may have no background in mental health Document must be understood by legal professionals and by general public Greater need to educate – on clinical issues and sometimes even legal issues! If attorneys are confused, issues may not be addressed well, or at all, in court

Secondary Uses of Forensic Evaluation Reports Reduce the need for expert testimony Professional record of potential clinical value Mechanism for examiner’s analysis Modeling for professional colleagues

Report Writing High Quality Forensic Evaluation Reports

Common Report Writing Errors (Grisso, 2010) Reviewed reports of ABPP Applicants failed by the expert panel reviewing their work 36 psychologists / 62 reports Psychologists already passed in depth written exam Identified Top 10 List of most common errors http: //www. abfp. com/pdfs/certification/Guidancefor. Improving. Forens ic. Reports. pdf

Common Report Writing Errors (Grisso, 2010) #10: Improper test uses Use of inappropriate tests Misinterpretation of test data #9: Language problems Use of jargon lacking meaning to judges & juries Use examples or descriptions to illustrate #8: Over-reliance on a single source of data Did not pursue corroborating sources of information when they were needed

Common Report Writing Errors (Grisso, 2010) #7: Data and interpretation mixed Reader unable to differentiate fact and inference #6: Inadequate data The referral question, case circumstances, or final opinion required additional types of data that were not obtained, were not reported, and for which absence was not explained. #5: Failure to consider alternate hypotheses Data could support alternative interpretations, but report did not explain how they were ruled out

Common Report Writing Errors (Grisso, 2010) #4: Irrelevant data or opinions Data and/or opinions included in the report were not relevant for the referral questions Violates due process, self-incrimination, and/or dignity #3: Organization problems Information was presented in a disorganized manner (lacked a reasonable logic for its sequence) #2: Forensic purpose unclear The legal standard, legal question, or forensic purpose was not stated, not clear, inaccurate, or inappropriate Recommendation: Quote the relevant statute

Common Report Writing Errors (Grisso, 2010) #1: Opinions without sufficient explanations Major interpretations or opinions were stated without sufficiently explaining their basis in data or logic

Keys to High Quality Forensic Mental Health Reports (Grisso, 2008; 2012) Relevance Speaks directly to the question asked by the court – and no more. Credibility Explains why the reader should believe the examiner. Accurate and Objective Factual Basis Expertise on Issues at Hand Facts and Opinions are Distinguished Links Made Between Facts and Opinions to Explain Opinions Rejection of Competing Opinions Also Explained Clarity Is written clearly so as to be understood by the reader. Writing Style Sequencing & Organization

Clarity: Writing Style Avoid or explain jargon and colloquialisms Write scientifically, not over-dramatically Avoid language that suggests a bias Use quotes liberally – let the source(s) speak Clearly identify sources for facts Clearly differentiate facts and opinions Write in a manner that is readable (Grisso, 2008) Use words of fewest syllables (utilize > use; necessities > needs) Sentences of 18 -24 words 8 th or 9 th grade reading level Use active voice, not passive Avoid typos, errors, and grammatical mistakes!

Report Writing Clarity: Organization

Forensic Report Organization Introductory Material Why the examiner conducted this evaluation Identifying and referral information Legal question(s) being addressed Informed Consent / Notification of Rights Methods Used and Sources Relied Upon What the examiner did to conduct the evaluation What the examiner wanted to do, but was unable Description of how this information was obtained Identify source(s) – and credibility of source(s)!

Forensic Report Organization Observations, Assessment Results & Other Data What the examiner discovered by conducting the evaluation Relevant mental states, capacities, abilities, knowledge, &/or skills relevant to the legal question Opinions What the findings of the evaluation mean in relation to the reason for the evaluation Proposed causal connection between facts obtained and the legal question Interpretations & Conclusions Limits of the Interpretations & Conclusions If necessary, address different versions of the facts

Juvenile Competency to Proceed Report Organization Identifying Information & Evaluation Referral Juvenile: Name; Date of Birth; School Grade; Case # Evaluation: Date Interviewed; Date of Report Referral Question: Specific Charges; Referral Source; Reason for Competency Concerns Notification or Preparation of Participants Contents of Notification; Youth’s Understanding of Notification; Others’ Understanding of Notification; Signing of Notification Form(s) Scope & Process of Evaluation Specific Issues of Concern; Examiner’s Understanding and/or Conceptualization of Competency

Juvenile Competency to Proceed Report Organization Procedures or Database or Information Sources Interview of Youth: Date; Duration; Location; Conditions Psychological Testing: Test Name; Date Administered; Subject of Administration Records Reviewed: Type; Source; Date Span Interviews Conducted: Type; Subject; Date(s); Duration Validity Concerns: Data Source; Specific Concerns; Management of Concerns Unobtained Data: What was Pursued and Not Obtained; Why it was Pursued; Limits Caused by No Access

Juvenile Competency to Proceed Report Organization Data Then Opinions Model Clinical and Developmental Data Competence Data Functional, Causal, Contextual, Conclusory, & Remedial Opinions Clinical and Developmental Data Mental Health and Diagnostic Opinions Competence Data Functional, Causal, Contextual, Conclusory, & Remedial Opinions Opinion Then Forensic Model And Supporting Data Model Functional Opinion & Supporting Data Causal Opinion & Supporting Data Contextual Opinion & Supporting Data Conclusory Opinion & Supporting Data Remedial Opinion & Supporting Data

Juvenile Competency to Proceed Report Organization Background (Clinical and/or Developmental) Relevant History: Family; Early Development; Trauma; Medical; Academic; Social/Recreational; Behavioral; Legal; Mental Health Mental Status Exam: Appearance; Attitude; Motor Functioning; Speech and Communication; Cognition; Thought Process; Affect Current Mental Health Symptoms/Domains of Immaturity Psychological Test Results: Past Testing; New Testing Opinions (Clinical and/or Developmental) Summary of Clinical and/or Developmental Data Diagnoses Assigned and Rationale for Each Diagnoses Ruled out and Manner in Which Ruled Out Domains of Developmental Immaturity

Juvenile Competency to Proceed Report Organization Competence to Proceed Data Dusky: Capacity to Factually Understand; Capacity to Rationally Assist Juvenile Adjudicative Competence Interview (JACI): The Juvenile Court Trial and Its Consequences; Roles of the Participants; Assisting Counsel and Decision Making; Participation at a Juvenile Court Hearing Utah Statute: Comprehend appreciate the charges or allegations; Disclose to counsel pertinent facts, events, or states of mind; Comprehend appreciate the range and nature of possible penalties; Engage in a reasoned choice of legal strategies and options; Understand the adversarial nature of the proceeding; Manifest appropriate courtroom behavior; Testify relevantly.

Juvenile Competency to Proceed Report Organization Competence Opinions or Competence Conclusions or Competence Interpretations Functional: Summary of Competence-Related Abilities Causal: Clinical & Developmental Causes of Abilities Contextual: Potential Consequences of Deficit Conclusory: Competence Opinion Includes Rationale for Rejecting Alternative Opinions Remedial: Potential for Remediation (Attainment)

Report Writing Utah Juvenile Competency Evaluation Report Template

Forensic Report Templates Can ENHANCE REPORT ORGANIZATION Serve as a Memory Aide for Best Practices Enhance Report Writer’s Efficiency “Plugging Enhance Report Reader’s Efficiency Finding in” new information Enhance Report Quality Forces thinking about key issues

How To Best Use Templates are Suggested Guides Templates offer a Common Starting Point Templates are Never Written in Stone Templates are Not Intended to Eliminate Evaluator Style of Expression or Creativity Templates are Intended to Assist the Evaluator, Not Limit the Evaluator

Use of the Template Text Fields Notes to Evaluator (Bracketed and Italicized)

Headings

Reason for Referral

Summary of Opinions Clinical Summary Diagnostic Opinions

Summary of Opinions About Competency to Proceed

Summary of Opinions About Attainment of Competency

Evaluation Data Explanation of Evaluation Procedures and Process Interview(s) of Juvenile Assessment(s) of Juvenile Parent Report Legal Information Additional Information

Evaluation Data Statement of Forensic Warning Forensic Evaluator vs. Traditional Mental Health Prof Court is the client. Recipients of report. Juvenile and Family not recipients Report will be used to help determine Competency Court and/or DHS could use in other ways. Evaluator may testify in court Juvenile’s statements cannot be used to incriminate Mandatory reporting requirements Right to refuse participation despite mandatory evaluation Participation assumes assent to be audio or video taped

Evaluation Data Statement of Forensic Warning

Evaluation Data Pertinent Developmental & Psychosocial History Family History Developmental History Trauma History Medical History Academic History Psychosocial History Behavior History Delinquency History Mental Health History

Evaluation Data Pertinent Developmental & Psychosocial History

Evaluation Data Current Mental Status General Presentation Psychomotor Activity and Speech Behavior Mood, Emotions and Affect Thought Process and Perceptual Issues Cognition and Intelligence

Evaluation Data Assessment of Response Style Psychological Testing Past Testing Current Testing

Evaluation Data Competency-Specific Interview Capacity to Understand the Nature of the Proceedings Against Them With a Reasonable Degree of Rational Understanding Consult with Counsel and Participate in the Proceedings Against Them with a Reasonable Degree of Rational Understanding 1. Capacity to Comprehend and Appreciate the Charges or Allegations 4. Capacity to Disclose to Counsel Pertinent Facts, Events & States of Mind 2. Capacity to Comprehend and Appreciate the Range and Nature of Possible Penalties, if Applicable, that may be Imposed in the Proceedings Against the Juvenile 5. Capacity to Engage in a Reasoned Choice of Legal Strategies and Options 3. Capacity to Understand the Adversarial Nature of the Proceedings 7. Capacity to Testify Relevantly, if applicable 6. Capacity to Manifest Appropriate Courtroom Behavior

Evaluation Data Competency-Specific Interview

Thoughts? ?

Evaluator Challenges in Juvenile Competency Evaluations Attainment Recommendations

Juvenile Competency Evaluation Model (Grisso, 2003) Functional Are there deficits? Causal What is their cause? Contextual How will any deficits impact this defendant in their case? Conclusory Are the deficits adequately impairing to meet the legal test? Remedial (Attainment) Can the deficits be remediated?

Breaking Down the Remedial (Attainment) Question What deficits were identified during the evaluation that yielded the opinion of incompetence? What is the identified cause(s) of each deficit? What intervention(s) offer the best possibility of remediating those deficits? How long is successful intervention expected to take? How does that fit with statutory timeframes? What is the likelihood of successful attainment of each deficit? What is the overall likelihood of successful attainment?

Data Useful in Answering the Remediation Questions The Clinical and Empirical Literature The Youth: Current Functioning Past Response(s) to Intervention(s) The Nature of Available Attainment Services

Data Useful in Answering the Remediation Questions The Clinical and Empirical Literature

Clinical Literature Juvenile Competency Remediation Certain sources of CST deficits decrease the likelihood of successful attainment: Normal Developmental Immaturity Delayed Development Disorders That Are Less Responsive to Treatment Intellectual Disabilities Autism Disorders That Require Long-Term Interventions Posttraumatic Stress Disorder Receptive & Expressive Language Disorder Grisso, 2005 Otto et al. , 2006 Schouten, 2003

Clinical Literature Juvenile Competency Remediation Successful attainment may depend on the area(s) of deficit: Factual Understanding deficits generally more remediable Appreciation, Assisting, and Decision-Making deficits generally less remediable Grisso, 2005; 2013 Peterson-Badali & Abramovitch, 1993 Viljoen & Grisso, 2007 Viljoen & Roesch, 2007

Empirical Literature Juvenile Competency Remediation ~ 70% Returned to Court Competent Success may depend on: Source of deficits: Mental Illness Intellectual Disability Both 85 -90% 50 -55% 50 -65% Age: Younger Adolescents Middle Adolescents Older Adolescents 60 -75% 75 -80% 65 -70% Mc. Gaha, Otto, Mc. Claren & Petrila, 2001 Warren, Du. Val, Komarovskaya, Chauhan, Buffington-Vollum & Ryan, 2009

Empirical Literature Juvenile Competency Remediation “…developmental and maturity issues that are often focused upon in the discussions of juvenile competence are not as insurmountable as previously thought. ” “…many young juveniles can be remediated in their competence-related abilities if they are provided developmentally tailored educational processes provided in the context of a consistent relationship with trained restoration counselors who meet with youth multiple times a week…” “…when the youth suffers from mental retardation, at times combined with severe mental illness, the impact of the interventions is far more limited…” Warren, Du. Val, Komarovskaya, Chauhan, Buffington-Vollum & Ryan, 2009

Empirical Literature Juvenile Competency Remediation Studies of time-frames Very brief interventions are rarely successful Cooper, 1997 Viljoen, Odgers, Grisso, & Tillbrook, 2007 Four-Month to Six-Month Period seems Essential: Most youth ordered for attainment successfully attained by 6 months If did not attain by 6 months, likelihood of success drops markedly Mc. Gaha et al. , 2001 Warren et al. , 2009

Empirical Literature Child & Adolescent Treatment Review the treatment literature for the disorder or symptoms causing deficits. But Remember, Successful Attainment Does Not Require: Complete remission of relevant symptoms Complete cure of relevant disorders Only adequate improvement to be competent.

Data Useful in Answering the Remediation Questions The Youth

Youth Factors to Consider in Answering Remedial Questions Youth’s Current Functioning Developmental Status Current Mental Health Symptoms Current Mental Status Youth’s Response to Teaching During Evaluation Youth’s Past Response to Relevant Interventions Pharmacological Psychotherapeutic Educational

Data Useful in Answering the Remediation Questions Available Attainment Services

Types of Attainment Interventions Pharmacological The “Psychotic Adult” Model Goal: Remission of symptoms causing deficits Less Straightforward with Childhood Disorders Psychotherapeutic Less Common Model with Adults Goal: Remission of symptoms causing deficits May augment or replace pharmacology There is a literature – should be consulted However: Target in literature is not competence

Types of Attainment Interventions Educational The “Mentally Retarded” Adult Model Goal: Teaching of skills to alleviate deficits More Widely Applicable with Youth Types of Educational Curricula: Traditional Training Curricula Criticized for focus on memorization of facts 21 st Century Training Curricula Multi-Modal and Active-Learning Techniques Systematic and Explicit Instruction Focus on Development of Specific Skills Abstraction Skills with Cognitive Acceleration Communication Skills Training

The “Development Dilemma” What should be done with youth who need to “grow up” to become competent? Courts torn on how to handle Some courts allow dismissal of charges Some with prejudice Some without prejudice Some courts continue for extended period, allow the youth to grow up, and revisit after Unique complexity of these issues in Utah

Answering the Remediation Question The Analysis

Analysis of the Remediation (Attainment) Question What are the specific functional deficits? What are the sources of those deficits? A treatable mental disorder Weak cognitive skills (normal &/or pathological) Weak psychosocial skills (normal &/or pathological) What types of interventions are most likely to help each deficit? Factual Understanding Rational Appreciation Assisting Counsel Legal Decision Making Psychiatric Interventions Psychotherapeutic interventions Educational Interventions How long is intervention expected to require for each deficit? How did youth respond to training efforts during the evaluation? How has youth responded to similar interventions in the past? What does empirical and clinical literature suggest?

COMPETENCE DEFICIT SOURCE(S) OF DEFICIT Poor Appreciation of the Roles of Courtroom Personnel Poor Legal Decision -Making Poor abstraction skills from young age and Borderline IQ Inattention and Distractibility from untreated ADHD POSSIBLE INTERVENTIONS Repeated and Multi -modal teaching of concepts and discussion Pharmacological intervention; Focused training in weighing advantages and disadvantages of decisions Poor Ability to Verbal processing Speech and Engage in and expression Language Functional deficits from Mixed Therapies Conversations with Receptive and Attorney Expressive Language Disorder Poor Ability to Poor frustration Progressive Understand tolerance with training in concepts Appreciate Plea learning new related to plea Agreement Process information related agreements and to Learning repeated exposure Disability until mastery is achieved NEEDED / AVAILABLE TIME-FRAME Need: 6 months to 1 yr Available: 6 months to 1 yr. LIKELIHOOD OF SUCCESS Moderate Need: 3 months High Available: 6 months to 1 yr. Need: At least two months Moderate Available: 6 months to 1 yr. Need: 3 to 6 months High Available: 6 months to 1 yr.

Maintaining Objectivity

Answering the Remediation Questions Communicating Attainment Opinions

The Forensic Mental Health Divide: Bridging the Legal & Mental Health Worlds Differences of conventions Legal System > Definitive Statements Mental Health > Degrees of Certainty Different expectations regarding advocacy Attorneys advocate for an outcome Mental health professionals advocate for a conceptualization (opinions).

The “Ultimate Issue” Issue Ultimate Issue = the court’s legal question Is there a substantial probability that the minor may attain competency in the foreseeable future? Ultimate Issue = unresolved debate about whether forensic clinicians should answer it. Against For Answering is the domain of the judge because the answer is a legal, social, moral matter – not clinical The court is aware any opinion is only advisory. Some laws forbid these opinions Many laws allow and many judges demand these opinions Current science is not precise enough to answer these questions Science has advanced so that reasonable answers can be given

Communicating Attainment Opinions If may be found competent, use “if-then” statement Opinions based on clinical judgment Explicitly inform the court Remind yourself! Make Opinion Reasoning Explicit Detail different response estimates with multiple deficits Highlight the complexity when relevant Do your best to offer reasonable guidance… …but also be clear about the limits of what can be said Remember: Your interests Court’s interests “Low Probability of Success” may still be an adequately substantial likelihood

Recommending the Least Restrictive Appropriate Setting Psychiatric Hospitalization Only if treatment of clinical issue typically warrants it Detention Only if youth’s risk to community or potential to abscond warrants it Some Unique Scenarios Vast Majority of Youth Treatable in Community

Contact Information Ivan Kruh, Ph. D Forensic & Clinical Psychology P. O. Box 1754 Ossining, NY 10562 PH: (845) 219 -2421 Ivan. Kruh. Ph. D@gmail. com www. Dr. Kruh. com