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TRANSCRIPT
10/4/2017
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Terry Kukor, Ph.D. ABPP and Dan Davis, Ph.D., ABPPBoard 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
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Section 2152.51 to 2152.59 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
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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)9 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
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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
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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
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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
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Comprehend9 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.”)
9 To take in or embrace; include; comprise
Appreciate9 To fully grasp the scope and meaning9 To recognize the significance or magnitude (e.g., “He
did not grasp the significance of Dr. Davis’ remark.”) 9 To take full or sufficient account of something
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Comprehend: the juvenile’s9 cognitive understanding of the charges9 cognitive understanding of the possible
consequences
Appreciate: the juvenile’s 9 Grasp of the scope and meaning of the charges &
consequences9 Recognition of the significance or magnitude of the
charges & consequences
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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
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� Grisso T (2013) Forensic Evaluations of Juveniles. Second Edition. Sarasota: Professional Resources Press• In Juvenile Pre‐Trial and Juvenile Correctional Centers9 Approximately 2/3 of youth meet criteria for one or more serious mental disorders
9 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
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This is about twice the prevalence of “Seriously Emotionally Disturbed Adolescents” in the general population9 Conduct Disorder 40%9 Substance Dependence 40%9Mood Disorders 15‐20%9 Anxiety Disorders 15‐20%9 PTSD estimates range from 10‐40%
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Comorbidity: Meeting criteria for more than one disorder9 Found in about 50% of all youth in juvenile justice settings
9 About 80% of youth with Conduct Disorder diagnoses meet criteria for one or more other disorders
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Gender: Prevalence in females much greater than in males
Race: Current research reports few reliable differences in prevalence for adolescents of various racial backgrounds.9 Somewhat lower rate of substance abuse for African American youth
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MH Caseload in DYS:1. Males: 47%2. Females: 100%3. Average total age 17.74. Census as of 08/17= 508, of which 68 are in
alternative placements5. 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 12.08.15
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1. Consultation with defense counsel2. Interview(s) with family members3. Obtaining and reviewing relevant 3rd party sources
of information4. Clinical interview of the youth5. Psychological testing (if needed)6. Juvenile Adjudicative Competence Interview (JACI)
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1. Specific questions/concernsa. Factual understandingb. Rational understandingc. Specific concerns about capacity to assist9 Confusion, detachment, inattentive/distracted,
difficulty communicating, memory problems, peculiar behavior, immaturity, hostility
2. Availability of pertinent recordsa. Allows one to place interview behavior in context
and interpret it in terms of known history and development
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1. Pertinent Historya. Developmentalb. Educationalc. Mental Healthd. Alcohol/Druge. Legal
2. Adaptive Functioning: abilities to meet life demands in communication, self‐care, home living, interpersonal skills, use of community resources, self‐direction, academic skills, health, and safety
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1. Types often needed a. Educationalb. Medicalc. Mental health servicesd. Juvenile justicee. Social services
2. Relevance for evaluationa. Integrity of data (contrasted to caretaker and child
information only)3. Psychological data for children and adolescents as
perishable
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1. 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)
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Common tests for cognitive abilities: ruling in ID or DD9 Wechsler9 Wide Range Achievement9 Woodcock‐Johnson
Assessment of adaptive functioning9 Vineland9 Street Survival Skills Questionnaire
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Common tests for adolescent psychopathology: ruling in mental illness9 Minnesota Multiphasic Personality Inventory‐
Adolescent (MMPI‐A)9 Millon Adolescent Clinical Inventory (MCMI)9 Achenbach Tests
Child Behavior Checklist (caretaker, teacher)Youth Self Report
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Tests for developmental maturity9 Social development…
Vineland Social MaturityBehavioral Assessment System for Children (BASC‐2): ADLs, social skills, structured developmental history
9 Abstract thinkingWISC Similarities
Do not yet have formal developmental measures suitable for clinical use for time perspective, risk perception, or peer influence
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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
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Developed by Thomas Grisso, Ph.D., ABPP (Forensic)Not a test: no rating, scoring, or normsThe purpose is guided clinical judgmentAssesses relevant functional abilities 9 What juvenile defendants know, understand, believe,
or can do that is relevant for CSTAssesses capacity to remediate deficits with instructionInquiry is structured by:9 Types of abilities9 Areas of content
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1. 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
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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
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10. Absence of gratuitous comments about 3rd parties
11. Absence of unnecessary, non‐objective comments about the youth (e.g., physical attractiveness)
12. Consideration of bias in 3rd parties
13. If a diagnosis is rendered:a. It should be in the current version of the DSMb. Criteria should be metc. Other possible dx should be considered
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14. 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)
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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 2152.51‐2152.59 of the Ohio Revised Code
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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:9 3 months if charged with an act that would be a
misdemeanor if committed by an adult9 6 months if charged with an act that would be a F3,
F4, or F5 if committed by an adult9 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
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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
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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
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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
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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 board‐certified forensic psychologist
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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
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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 behavior3. Interpersonal skills relevant to assisting in defense4. Education to help them understand the legal process5. Decision‐making and reasoning
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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
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1. 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
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5. Stress tolerancea. Unmanageable behaviorb. Ability to tolerate stress of trial or open court
proceedings where the child may be fearful or embarrassed
6. Capacity to testify relevantlya. testify with coherence, relevance, and
independence of judgmentb. based on mental status examination and how they
related to the Clinical Specialist and the examiner
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7. Capacity to comprehend instructions and evaluate legal advice regarding decisions
8. Ability to tolerate the stress of disclosing embarrassing details to defense counsela. Can be a concern for younger children
charged with sex crimes
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Securing cooperation from parents/legal guardians
Being mindful about timeframes – at what point does the clock start ticking on attainment?
Careful coordination with court officials1. Ongoing communication about progress or lack
thereof2. Communication re non‐compliance: Who has the
leverage?
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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
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Parents who are disorganized and miss appointmentsYouth who are exerting less effort that they are capable of putting forthYouth who run away from placementsParents who may be passively discouraging or actively subverting attainment effortsRigid attainment periods that are indifferent to the number of kept appointmentsYouth who are incompetent for developmental as well as clinical or cognitive reasons, i.e., how is immaturity “treated?”
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