Recommendations for treatment in jail of 15(b) defendants being discharged after the evaluation period (or after restoration in competency).
Not infrequently, after completion of the competency evaluation (or after restoration to competency of a patient committed pursuant to section 16(b) or (c), the Care and Treatment section includes recommendations for the type of treatment or monitoring necessary if the defendant is to be incarcerated. For example, reports may include recommendations that the defendant continue to receive mental health treatment, including psychotropic medications and/or that the defendant should be monitored for decompensation or suicidal behavior if incarcerated. The DFP Committee has discussed the limitations of the practice of making these recommendations in the report without taking additional steps to increase the likelihood that these recommendations will indeed by implemented. Since the reports are not sent by the Court to the correctional facility, there is no clear mechanism for the jail or house of correction to be made aware of these recommendations. The DFP Committee recommends that in such situations, where there are concerns about the defendant posing a risk of harm to self or others within the correctional setting, , the forensic evaluator should work in conjunction with the treatment team, to consider mechanisms for conveying these concerns to the correctional facility. The particular mechanism used will likely vary depending on the practices of each facility, including who is responsible for the communication. It is recommended in these cases that the court clinic to which the defendant is returning, or other appropriate court personnel, be contacted to alert them to the recommendations so that they may be able to assist the court in understanding and implementing the recommendations.
The DFP Committee recognizes that, even when these, or other steps, are taken, the information may not be conveyed to the relevant parties in the correctional facility and that the forensic evaluator cannot ensure that the recommendations will be followed.
Care and Treatment recommendations for patients found Incompetent to Stand Trial
Across different DMH and DOC facilities (i.e., Bridgewater State Hospital), there are different practices regarding the roles of the forensic evaluators and the clinical treatment team in recommending need for care and treatment (including hospitalization) of defendants being re-evaluated under sections 17a or 16b/c. In some facilities, the forensic evaluator addresses the need for care and treatment in the evaluation which addresses current competency to stand trial. In other facilities, the forensic evaluator addresses only competency issues in his/her evaluation and the decision about whether to seek commitment is made by the treatment team. The Committee agreed that both models represent acceptable practice.
GUIDELINES WHEN DEFENDANT’S VERSION CANNOT BE OBTAINED IN A CR EVALUATION
TheDFP Training and Certification Committee has been asked to provide guidance regarding situations in which a Criminal Responsibility evaluation has been ordered but the evaluator cannot obtain the defendant's version of the alleged offense (either due to denial on the part of the defendant, the defendant's refusal to discuss the alleged offense, the defendant’s report of no memory for the alleged offense, or because the defendant is so impaired that he/she cannot provide an account). In such situations, evaluators must decide whether to submit a report based on other sources of data, offering an opinion on relevant issues to the extent possible (e.g. mental state at the time of the offense), or to write a letter to the court, stating that the evaluator cannot complete or conduct the evaluation. The Committee agreed that each case needs to be assessed individually, with the following guidelines offered:
1. The defendant's inability or unwillingness to provide an account of the alleged offense does not per se prevent an evaluator from submitting a report, although it may often result in a qualified or limited opinion.
A. If there is adequate information from other sources (including collateral sources, records, and the defendant's clinical presentation) to address the presence/absence of mental illness at the time of the alleged offense, the evaluator could aid the court by providing the relevant data and analysis (even if a full analysis of the defendant’s abilities to appreciate wrongfulness and conform conduct cannot be offered). The evaluator should make clear in the report the limits due to lack of information from the defendant and qualify the opinion accordingly.
B. In some cases, it may be possible for the evaluator to render an opinion based on available data even without a full account by the defendant.
C. If there is no meaningful information relevant to the presence or absence of mental illness at the time of the alleged offense, a letter rather than a report would be appropriate.
2. On a related issue, there are ethical and legal concerns when a defendant does not comprehend the "Lamb" warning. In such circumstances, the evaluator should contact the defense attorney. The defense attorney may consent to the evaluation on behalf of his or her client, and this should be noted in the report. If the attorney objects to the evaluation, the attorney should be asked to contact the court directly and have the order vacated. If the attorney does not follow through on having the order vacated, the evaluator can exercise either one of the following two options:
A. Communicate with the court, apprising of the situation and asking for guidance.
i) If the court orders that the evaluation proceed, the report should include detailed information about the defendant’s capacities related to comprehension of the “Lamb” warning, the substance of the communication with the defense attorney and the court, and the court’s response.
B. Proceed with the evaluation, documenting in detail information regarding the defendant’s capacities related to comprehension of the “Lamb” warning as well as the substance of the communication with the defense attorney.
3. Similarly, in the case of a defendant who does understand the “Lamb” warning but the defense attorney communicates to the evaluator that he/she does not want the Criminal Responsibility evaluation to proceed, the evaluator should recommend that the attorney contact the court and have the order vacated. If the attorney does not follow through on having the order vacated, the evaluator can exercise either of the options above (2.A. or 2.B.).