CHPR: Can you define competency to stand trial?
Dr. Landess: Competency to stand trial is a legal term referring to a criminal defendant’s present ability to participate meaningfully in an adversarial legal process. Other terms for this concept include “adjudicative competence” and “fitness to proceed.” I want to emphasize that competency reflects a defendant’s present ability, as evaluated at the time of the examination. This process is similar to how we evaluate decision-making capacity in an inpatient psychiatric unit or on a consultation service. However, there’s an important distinction: “capacity” refers to the clinical opinion provided by an expert evaluator, such as a psychiatrist or psychologist, about the defendant’s ability to stand trial, while “competency” is the legal determination made by the judge based on that opinion.

CHPR: How does competency to stand trial differ from responsibility for a crime?
Dr. Landess: Competency to stand trial and criminal responsibility are separate issues. Competency refers to the defendant’s current ability to understand and participate in the legal process, while criminal responsibility relates to the defendant’s mental state at the time of the crime. Since the crime could have occurred years earlier, determining responsibility is inherently more challenging due to the retrospective nature of the assessment.  “Not guilty due to insanity” (NGI) is a common legal term used if someone is found to lack criminal responsibility due to a mental disease or defect at the time of the crime. In other cases, a defendant’s history of mental illness may be considered as a mitigating factor during sentencing.

CHPR: What are the key criteria for assessing an individual’s competency to stand trial?
Dr. Landess: Defendants have a constitutional right to be competent for their trial. In 1960, the U.S. Supreme Court established a national standard in Dusky v. US, which requires that a defendant must have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and a “rational as well as factual understanding of the proceedings against him.” All states must comply with this minimum standard.

CHPR: What does the ability to consult with one’s lawyer look like in practice?
Dr. Landess: It involves the defendant’s ability to trust and reasonably assist their attorney. For example, if Mr. Jones, charged with felony theft, understands the court system, plea options, and charges but believes the judge is conspiring against him due to a delusion about the judge’s involvement in a child trafficking ring, and wants to introduce this “evidence” at trial, his delusion impairs his ability to rationally assist in his defense. Despite understanding the legal system, he would not be considered competent to stand trial.

CHPR: And what about rational and factual understanding of the proceedings?  
Dr. Landess: Factual understanding includes knowledge about 1) the roles of a judge, prosecutor, defense attorney, and other court personnel; 2) the charges, or the allegations against the defendant; and 3) legal concepts such as plea options and plea bargains. Rational understanding is the capacity to make an appropriate legal decision based on one’s knowledge of court procedure. If somebody is initially charged with felony theft and looking at three years in prison if found guilty, the prosecutor could offer the defendant a plea bargain to accept a guilty plea in exchange for a reduced charge or lighter sentence. In this case, factual understanding refers to the person’s knowledge about the concept of a plea bargain, while rational understanding refers to his ability to consider different plea options in deciding about going to trial or not. The concept of a plea bargain may be the most important piece of factual knowledge for a defendant to have because about 95% of criminal cases are resolved this way (Devers L. Plea and Charge Bargaining. Washington, DC: Bureau of Justice Assistance; 2011).

CHPR: Are there any specific questions you ask or tools you use to assess the defendant’s understanding?
Dr. Landess: I ask defendants to identify the roles of court personnel, define plea options and legal terms, describe the charges against them, and compare their description to the official police report. I also present various plea options and ask them to explain their rationale for their choice. Standardized instruments to assess competency to stand trial include the Georgia Court Competency Test, the Revised Competency Assessment Instrument (https://tinyurl.com/rzm7sj7c), and the MacArthur Competence Assessment Tool – Criminal Adjudication.

CHPR: What is the role of a psychiatrist or a psychologist in evaluating a defendant’s competency to stand trial?
Dr. Landess: Competency evaluations are the bread and butter of forensic psychiatry, with demand increasing significantly over the past 25 years. Approximately 94,000 competency evaluations are conducted annually (Morris NP et al, J Am Acad Psychiatry Law, 2021;49(4):530–539). Typically, the defense attorney requests a competency assessment, but it can also be initiated by a judge or prosecutor. If a defendant is found incompetent, their court case is paused until a judge deems them competent to proceed.

CHPR: After an attorney or a court requests a competency assessment, what does the examination procedure typically consist of?
Dr. Landess: The process starts with reviewing relevant records, including treatment and jail records, and legal documents like the criminal complaint. You then conduct a psychiatric exam to evaluate the defendant’s current mental status and history. The assessment includes determining if they understand the charges, can communicate with their attorney, and participate in their defense. Psychological testing may be warranted, and you should always consider the possibility of malingering. After the evaluation, you write a report, providing an opinion on the defendant’s ability to participate in the legal process, which may culminate in a trial. If the defendant is found incompetent, you should explain how their psychiatric symptoms interfere with their participation. Most states also require an opinion on whether the defendant can be restored to competency within a specific time frame. For instance, in Wisconsin, we have about a year to restore defendants found incompetent to stand trial for a felony charge.

CHPR: What happens after an individual is deemed incompetent to stand trial?
Dr. Landess: The individual is usually committed to the Department of Health Services for competency restoration, which includes medication, legal education, and other treatments to address psychiatric symptoms. Depending on the state, treatment can occur in a state hospital, jail, or community setting, with state hospitals being the most common. This has led to long waiting lists in some states, where defendants may wait months in jail for admission to the state hospital.

CHPR: How are the rights of defendants protected during this assessment process?
Dr. Landess: I inform the defendant about the scope and nature of the examination, clarifying that the information discussed is not confidential and that I am not their treating psychiatrist. I also explain that if it is a court-ordered exam, a report must be submitted regardless of their participation, and they have the right to decline to participate.

CHPR: How do you conduct an evaluation if the defendant declines to participate?
Dr. Landess: I rely on alternate sources such as observations by facility staff, treatment records, legal records, and information from family or friends to clarify the person’s symptoms and functioning. If necessary, the individual could be admitted to the state hospital for a short stay for more intensive observation to render an opinion.

CHPR: What happens to patients who cannot be restored to competency to stand trial?
Dr. Landess: Most states have a specific timeframe for restoring competency. If the individual cannot be restored within that period, a psychiatrist or psychologist may determine they are unlikely to regain competency. The court can then hold a hearing to decide on the charges, which might involve dismissing them, pausing legal proceedings, or taking other actions. The court may also consider options like guardianship or mental health commitment.

CHPR: Are there any ethical issues to consider in assessing individuals’ competency to stand trial?
Dr. Landess: One ethical consideration that often arises is what kind of information to include in the competency report. Despite informing them at the beginning of the exam that our interactions are not confidential, defendants may share extensive trauma histories or incriminating details that are not directly relevant to the forensic question at hand and it’s important to protect their privacy. And though the competency report should not be used to prove someone’s guilt or innocence, it is a formal legal document that’s filed with the court and viewed by all parties. So, I focus on including only information necessary to answer the competency question and leave out information that is not relevant in order to protect the defendant’s privacy.

CHPR: Are you ever asked to serve as an evaluator for a patient you are treating?
Dr. Landess: This is an ethical issue known as dual agency, where a psychiatrist serves as both treater and evaluator. Ethical guidelines from the American Academy of Psychiatry and the Law advise against this to avoid conflicts. This is in part because the roles of treater and expert witness are very different. As a treater, my obligation is to the patient, and our communications are confidential. As a forensic evaluator, my role is to provide objective, honest answers to the court, which may not align with the defendant’s interests and the defendant’s communications to me are not confidential. (Editor’s note: For more on ethics in forensic psychiatry, see https://aapl.org/ethics-guidelines).

CHPR: Are there any cultural or linguistic factors that could affect a competency evaluation?
Dr. Landess: Certainly. One key component of competency is understanding the legal system. Sometimes I’m asked to evaluate someone who might not have a mental illness, but their attorney is concerned about their competency due to minimal familiarity with the legal system. This can be due to age or growing up outside the US. Usually, the defendant can learn the necessary material with brief education during my exam and assistance from their attorney. Language barriers are another common issue. While courts always use interpreters, finding one with the correct dialect and avoiding miscommunications can be challenging. Additionally, defendants with impaired vision or hearing might need special accommodations, even if they do not have a mental illness.

CHPR: What training and qualifications are required for professionals who conduct competency to stand trial assessments?
Dr. Landess: This varies by state. For example, in Wisconsin, the law doesn’t specify that a particular professional has to conduct these exams, giving judges broad discretion to decide who qualifies as an expert witness. Usually, psychologists and psychiatrists perform these evaluations, but in some states, professionals from other disciplines, like social work, can also conduct them. In my opinion, someone should have forensic experience with formal training in forensic methodology, interviewing, report writing, and testifying before conducting these evaluations.

CHPR: How does the criminal justice system handle cases involving individuals with serious mental illness who require evaluation and treatment for competency to stand trial?
Dr. Landess: We’re seeing more individuals undergoing the competency process due to inadequate community treatment infrastructure, lack of housing, and increased contact with the legal system. People with serious mental illness are sometimes arrested for survival crimes, like stealing food, charged with a misdemeanor, and then incarcerated. They may be found incompetent, put on a waiting list for state hospital treatment, and end up confined much longer than others charged with similar crimes without mental illness. The growing waiting lists for competency restoration are often referred to as a “competency crisis.”

CHPR: Are there any potential changes on the horizon to address this competency crisis?
Dr. Landess: States should focus on improving the health and functioning of people with serious mental illness. Potential solutions include enhanced community support, expanded outpatient commitment schemes, diversion programs that transition patients from the legal system to treatment, and assertive community treatment (ACT) or forensic ACT teams to provide the highest level of community support.

CHPR: Do you have any final advice for clinicians working in state hospitals or with patients impacted by this competency crisis?
Dr. Landess: Besides the waitlists, the transition back to the community is a major issue. Defendants detained for years often lose connections to family, community, treatment services, housing, and insurance. Discharge planning may be inadequate, making reintegration jarring. Clinicians, regardless of their practice setting, should actively participate in aftercare planning to reconnect patients to treatment and support, helping them maintain functioning and reduce the risk of recidivism.

CHPR: Thank you for your time, Dr. Landess.