CONCEPTUALIZING AND ASSESSING ...

Psychology, Public Policy, and Law 1996, Vol. 2, No. 1, 96-113

Copyright 1996 by the American Psychological Association, Inc. 1076-8971/96/$3.00

CONCEPTUALIZING AND ASSESSING COMPETENCY TO STAND TRIAL: Implications and Applications of the MacArthur Treatment Competence Model R o n a l d R o e s c h , S t e p h e n D. H a r t , a n d P a t r i c i a A. Z a p f Simon Fraser University The MacArthur Treatment Competence Study (MTCS) teaches important lessons about the conceptualization and assessment of criminal competencies, particularly competency to stand trial. In this article, the MTCS model of competency is used as a framework for analyzing the similarities and differences between American and Canadian laws regarding competency to stand trial. General issues regarding the development and evaluation of forensic assessment procedures in relation to the MTCS competence measures are then discussed. The authors conclude that the MTCS model of competence has broad heuristic value; however, because the link between psycholegal constructs and forensic assessment procedures is complex and indirect, the MTCS competence measures may have some important limitations for research and for clinical decision making. The MacArthur Treatment Competence Study (MTCS) provides a model for assessing the competence of individuals with mental illness to make decisions about mental health treatment (Appelbaum & Grisso, 1995; Grisso & Appelbaum, 1995; Grisso, Appelbaum, Mulvey, & Fletcher, 1995). It conceptualizes competency in terms of four psycholegal abilities: communicating a choice, understanding relevant information, appreciating the nature of a situation and its likely consequences, and rational manipulating of relevant information. Considerable effort was spent developing and validating measures to assess each of these abilities. We believe that the approach taken in the MTCS has important implications for the conceptualization and assessment of a wide range of competencies in psychology and law, and in particular competency to stand trial. In the first part of this article, we use the MTCS model of competency as a framework for analyzing American and Canadian laws regarding competency to stand trial. This analysis reveals some important similarities and differences between American and Canadian laws and highlights the broad heuristic value of the MTCS model. In the second part of the article, we discuss some general issues regarding the development and evaluation of forensic assessment procedures. Special emphasis is placed on the role that psycholegal constructs should play in the development of forensic assessment procedures and on the criteria that should be used to judge the adequacy of forensic assessment procedures. These issues are illustrated with reference to the competence measures developed for use in the MTCS. This section Ronald Roesch, Stephen D. Hart, and Patricia A. Zapf, Department of Psychology,Simon Fraser University, Burnaby,British Columbia, Canada. Preparation of this article was in part supported by a Social Sciences and Humanities Research Councilgrant. Correspondence concerning this article should be addressed to Ronald Roeseh, 936 Peace Portal Drive, P.O. Box 8014-153,Blaine, Washington 98231-8015.

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highlights the limitations of forensic assessment instruments, including the MTCS competence measures, in psycholegal research and clinical decision making. Conceptualizing Criminal Competencies Although we think that it is useful to examine the utility of applying the MTCS competency model to criminal competencies, it is important to be aware of the similarities and differences in the outcome of these two processes. In the civil system, the patient is being asked to make a choice about whether to proceed with treatment, and presumably the treatment has some known and potentially positive consequences. If a patient who decides against treatment is found by a court to be incompetent, the proposed treatment could proceed without the patient's consent. In the criminal system, defendants are not given the choice of whether they will proceed with trial (indeed, if this were the case, one couldn't imagine any defendant choosing to proceed!). Also, the consequences of proceeding in the legal system are usually not positive, short of an acquittal. Punishment rather than treatment is the more common outcome in criminal cases. Criminal defendants who are found incompetent are not allowed to proceed in the legal system, but, like the civil patient, will undergo treatment without consent. The most common form of treatment for incompetency in both civil and criminal cases is psychotropic medication. In our experience in British Columbia, this occurs even at the evaluation stage for defendants referred for competency assessments (Zapf, 1995). However, an important difference is that treatment for criminally incompetent defendants is directed expressly at restoring competency so that the legal proceedings can be resumed; treatment for civilly incompetent patients is designed to treat the mental health problems per se. In other words, for treatment of incompetent defendants, treatment is seen as a means to an end; with civil treatment it is an end in itself. It is also important to bear in mind that defendants who are otherwise incompetent can be returned to court while on medications to maintain their competency, but the use of medication may affect a defendant's demeanor in court and influence the way in which he or she is viewed by a judge or jury (or both). A recent Supreme Court decision held that this practice may, in certain cases, violate the due process rights of the defendant. In Riggins v. Nevada (1992), the Court held that these rights were violated because the fact that the defendant was on medication interfered with the defense's ability to present an insanity defense (see Winick, 1993, for a discussion of the implications of the Riggins decision).

Defining Competency to Stand Trial The focus of this article is on one form of criminal competency, that of competency to stand trial, although it should be noted that the MTCS might usefully be applied to other areas of criminal competency, such as competency to waive Miranda rights in the United States (see Grisso, 1986) or to waive Charter of Rights and Freedoms rights in Canada (Olley, Ogloff, & Jager, 1993). Because of some key differences in American and Canadian conceptions of competency to stand trial, we believe it is illustrative to examine the application of the MTCS in both countries. It has been a generally accepted legal principle in Western jurisprudence that incompetent individuals should not be allowed to proceed with a trial (Blackstone, 1783; Frith's Case, 1790). Although both the United

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States and Canada have their roots in English common law, case law in the two jurisdictions has led to somewhat different approaches. United States. The criteria for a determination of incompetency in the United States were established in Dusky v. United States (1960) in a decision that reflects the need for both understanding and rationality. In Dusky, the Court held that for a defendant to be considered competent to stand trial, the defendant must have "sufficient present ability to consult with his attorney with a reasonable degree of rational understanding" and "a rational as well as factual understanding of the proceedings against him" (p. 402). The typical competency assessment occurs at one point in time, usually soon after a defendant's arrest. In most cases, the defendant has had little or no interaction with his or her attorney. The evaluations are broad in scope in that the evaluators are assessing general competency to stand trial issues. In Bonnie's (1993) model, which we discuss in greater detail later, this initial evaluation is properly limited to an assessment of competence to assist counsel. At this point, evaluators rarely know much about the specific facts of the case, the type of defense that might be mounted, or the specific decisions that a defendant might have to make during the course of the judicial process. Canada. The practice in Canada is probably less familiar to readers of this journal, so we review it in some detail. In Canada, the competency issue has been interpreted as meaning that an individual charged with a criminal offense must be able to understand the nature of the proceedings and assist counsel to participate in his or her own defense in order to have a fair trial (see Regina v. Pritchard, 1836; The Queen v. Berry, 1876). It was thought that the presence of a mental disorder might pose a serious impediment to an individual's understanding of the proceedings and ability to assist counsel. If individuals are suffering from a mental disorder at the time of the trial, it is still important that they are able to defend themselves and, if this is not possible, they are said to be unfit to stand trial. 1 The judicial proceedings are then suspended until the defendants become fit to stand trial. Until recently, unfit defendants typically were committed to inpatient facilities for an indeterminate period until they were fit, at which time they were returned to court. Prior to 1992, there was no codified definition of unfitness to stand trial. The criteria then in use were taken from case law. Specifically, the case of Regina v. Pritchard (1836) often has been cited as the " 'classic test' for the determination of fitness to stand trial" (Lindsay, 1977, p. 306). In Pritchard, the judge ruled that there were three issues that must be determined in order to assess whether a defendant was fit to stand trial: First, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of the proceedings on the trial, so as to make a proper defense--to know that he might challenge any of you to whom he may object--and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation. (p. 304) Lindsay (1977) reviewed Canadian case law and concluded that there are three 1The term unfit to stand trial is used in Canada. Other countries, including the United States, use equivalent terms such as incompetent to stand trial. These two terms are used interchangeably in this article.


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questions that follow from the criteria set out in Regina v. Pritchard (1836) that are usually asked in order to determine an individual's fitness. First, "does the accused understand the nature and object of the proceedings? (i.e., does he understand that this is a criminal trial; does he understand what on oath is; does he know what the offence is etc.?)" (p. 306). Second, "does the accused understand what his relationship is to the proceedings? (i.e., does he understand that he and not somebody else is on trial; that he has the right to rebut the charges; that he may be incarcerated if he is found guilty etc.?)" (p. 307). Third, "is the accused able to assist in his defence? (i.e., can he communicate with his counsel; is he capable of giving evidence himself, if necessary; can he make strategic decisions with respect to the conduct of his defence etc.?)" (p. 307). Lindsay (1977) concluded that these three questions identify important areas to assess when determining an individual's fitness to stand trial even though "the concept of unfitness does not embrace any single standard" and its meaning varies according to "the type of mental defect, the nature of the proceedings and the way in which defence counsel relates to his client and conducts his defence" (p. 307). Lindsay (1977) also discussed the scope of the unfitness rule and stated that the courts have had considerable difficulty in applying the rule of unfitness to particular situations with any degree of consistency. Lindsay indicated that the courts have adopted two contradictory approaches in applying the rule of fitness to particular cases. The first he called the rationality test and the second the narrow test. The former approach uses a broad scope and has the court make a qualitative assessment of an accused's mental capacity to assist in his or her defense in a "rational" way or to have a "rational" understanding of the proceedings. The latter approach uses the notion that only the accused's cognitive ability be examined. Accused individuals are said to be able to assist counsel in their own defense if they are capable of relating the events surrounding an alleged offense to their lawyers. This test is limited only to the actual cognitive abilities of the individual and ignores the reasons behind any decision. Lindsay noted that although Canada had yet to "articulate explicitly a single test for defining the scope of the fitness rule, it is submitted that the weight of authority follows the wider view of the rationality test enunciated by the Supreme Court of the United States in Dusky" (pp. 314-315). In 1992, the Criminal Code of Canada (C.C.C.; 1985) was amended. Many changes were made to the legal procedures related to the determination of fitness to stand trial as well as criminal responsibility. Explicit guidelines were laid out in Section 2, which included a definition as well as criteria for the determination of fitness to stand trial. Unfit to stand trial is a legal term that is now defined as follows (C.C.C., S.2, 1992): unable on account of mental disorder to conduct a defense at any stage Of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to (a) understand the nature or object of the proceedings (b) understand the possible consequences of the proceedings, or (c) communicate with counsel. Since 1992 there have been finer distinctions made in case law with regard to these three criteria. In the case of Regina v. Taylor (1992) it was decided that "the test to be applied in determining the accused's ability to communicate with counsel is one of limited cognitive capacity" (p. 553). This means that it is not necessary that defendants be able to act in their own best interests but rather must only be able to

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recount the necessary facts pertaining to the offense to counsel so that counsel can present a proper defense. The appellate judge decided that the " 'limited cognitive capacity' test strikes an effective balance between the objective of the fitness rules and the constitutional right of the accused to choose his own defence and to have a fair trial within a reasonable time" (p. 567). This case serves to narrow the criteria used to assess fitness to stand trial. The Canadian criteria for fitness appear to be following the "narrow test" that was described earlier by Lindsay (1977). Perhaps this is to ensure that only a small number of individuals are being found unfit to stand trial. In Regina v. Whittle (1994) the Supreme Court of Canada ruled that there is to be only one standard for competency regardless of the specific abilities to be performed by an accused. Similar to the Godinez v. Moran (1993) case in the United States, the Canadian Supreme Court concluded that there is no difference between the abilities needed to be found competent to waive counsel, to stand trial, to confess, or to plead guilty. The Court ruled that different standards of competency should not be applied for different aspects of criminal proceedings and that the test to be used is one of "limited cognitive capacity" (p. 567) in each of these circumstances. In summary, although the Canadian and the American systems both have their roots in English common law, they have adopted somewhat different approaches to their conceptualizations of competence to stand trial. Lindsay (1977) described two contradictory approaches in applying the rule of competence to particular cases: the "rationality test" and the "narrow test." It appears that the Canadian system has adopted the narrow test, whereas the American system has adopted the rationality test. The implication of this is that the American system has the option of adopting a lower threshold of competence that can be used in some cases. For example, as we discuss later in this article, Bonnie (1993) has proposed two types of competence: a basal level of competence, which he calls competence to assist counsel, and a higher level of competence, which he calls decisional competence. Furthermore, Winick (1995), in his proposal to reform incompetency to stand trial, suggested the use of a lower threshold of competence for defendants who assent to counsel's recommendations. Both of these "lower thresholds" of competence would parallel the Canadian criteria for fitness to stand trial. In this next section, we review a conceptual framework for understanding criminal competency, and we then examine how the MTCS may be applicable to criminal competency in the American and Canadian context. A Theoretical Perspective A theoretical or conceptual framework for defining competency to stand trial has not been well developed. Much of the research has focused on describing differences between defendants who have already been found competent or incompetent. Early research showed that evaluators seemed to be operating on the theory that psychosis was the principle basis for a finding of incompetency (Roesch & Golding, 1980). Indeed, it could be argued that evaluations of competency as recently as 20 years ago focused exclusively on mental status issues and paid little or no attention to legal or contextual issues. Beginning in the 1980s, however, many researchers and commentators have called for the development of a more theorybased model of criminal competency, which in turn would guide both the clinical evaluation and the legal determination of competency (Bonnie, 1992, 1993; Golding


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& Roesch, 1988; Grisso, 1986; Melton, Petrila, Poythress, & Slobogin, 1987; Ogloff, Wallace, & Otto, 1991; Winick, 1985). It is perhaps axiomatic that the term competency to stand trial is too broad in that it does not reflect the realities of the legal system. The demands of a criminal case vary considerably. Some defendants may be required to testify, some are required to make a decision about whether to use an insanity defense, and some have to make choices about plea options and plea bargains. Depending on the nature of the defense, some commentators have argued that a given defendant may be competent for certain types of decisions or situations but not for others (Roesch & Golding, 1987). Contrary to recent court decisions that are reviewed below, we argue that it is inappropriate to evaluate defendants on a unidimensional conceptualization of competency to stand trial. In our opinion, competency is context dependent, so both theory and evaluation must encompass both general and specific competency issues. In other words, the clinical evaluation of competency must integrate both clinical and legal issues. A determination that a defendant is psychotic is not by itself a sufficient basis for concluding that a defendant is incompetent. Clearly, it is an important component, but a good deal of research has established that many defendants who are considered to be psychotic are also considered to be competent to stand trial (see Golding & Roesch, 1988, for a review). However, the contextual view of criminal competency appears to be at odds with a recent Supreme Court case. In Godinez v. Moran (1993), the Court held that the standard for the various types of competency (e.g., competency to plea, to waive counsel, competency to stand trial) should be considered the same. Justice Thomas wrote for the majority (p. 2686): While the decision to plead guilty is undeniably a profound one, it is no more complicated than the sum total of decisions that a defendant may be called upon to make during the course of a trial . . . . Nor do we think that a defendant who waives his right to the assistance of counsel must be more competent than the defendant who does not, since there is not reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision to waive other constitutional rights. In his dissent, Justice Blackmun noted that the "majority's analysis is contrary to both common sense and longstanding case law" (p. 2691). He reasoned that competency cannot be considered in a vacuum, separate from its specific legal context. Justice Blackmun argued that "competency for one purpose does not necessarily translate to competency for another purpose" (p. 2694) and noted that prior Supreme Court cases have "required competency evaluations to be specifically tailored to the context and purpose of a proceeding" (p. 2694). We believe that Justice Blackmun is correct in his analysis that the research and scholarly literature on competency supports the view that the various types of competency are conceptually distinct (see Perlin, 1996, for a review). For example, Whittemore (1995) examined competence at different stages of the criminal process in Canada and suggested that although competencies generally covary, this is not always the case. She noted, for example, that it is possible for an individual to be competent to stand trial but incompetent to understand Canadian Charter of Rights and Freedoms cautions (similar to Miranda warnings in the United States) or to plead guilty. In general, then, it is possible for an individual to be found competent at

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one stage of the proceedings but incompetent at another stage. We return to this issue later. In addition to these contextual issues, another issue that makes evaluation of competency to stand trial more complex is that one could argue that it may be in the best interests of defendants to proceed with trial even if they may be incompetent. Winick (1985, 1995) made a persuasive case that it may be possible for such defendants to proceed with trial without violating their constitutional rights and without jeopardizing the decorum of the courtroom (see also Burt & Morris, 1972; Roesch & Golding, 1980). Winick assumed that the decision to proceed is supported by the defense attorney, which would serve as some protection for the defendant that the decision is a reasoned one. Allowing a trial of a possibly incompetent defendant could be provisional in the sense that proceedings could be suspended if it became clear that the defendant's competency was a factor. Such a provisional trial would allow the defense to present its case and also require the prosecution to demonstrate that it had sufficient evidence for a conviction. Allowing a trial would also provide an opportunity to assess more directly whether a defendant's competency did affect the trial process. There is, at present, little data on the validity of decisions made by evaluators or the courts when a defendant is determined to be incompetent, because incompetent defendants are not allowed to proceed with trial. As Roesch, Ogloff, and Golding (1993, p. 49) noted: The provisional trial could, in effect, provide a direct test of the validity of the initial assessment, assuming that evaluators could continue to observe and assess the defendant during the legal proceedings. If a defendant was acquitted, the issue of competency would be moot. If convicted, the verdict could be accepted or set aside if evidence was presented that the defendant's competency was an issue. The above analysis of theory and legal procedures with respect to competency to stand trial provides the necessary context for examining the applicability of the MTCS model to the evaluation of criminal competency in the United States and Canada.

Analysis of Competency Laws Using the MTCS Model Appelbaum and Grisso (1995) proposed four different standards for assessing competency to consent to treatment. We review them briefly and note possible applications to the assessment of competency to stand trial. 1. Ability to communicate a choice. This refers to the capacity of individuals to make decisions or indicate the type of treatment they want. Patients are considered to be incompetent if, as a result of illness, they are unable to communicate this choice. This includes patients who express a choice but then change their minds, perhaps several times. This is the least stringent of the four standards and might be considered as the minimum required ability. Note that this standard doesn't deal with validity or rationality of choice. Applying this standard to criminal competency in either the United States or Canada is fairly straightforward. Defendants must be able to communicate choices to their attorneys about whether to accept a plea bargain, to go to trial, to testify, and so forth. For criminal competency, mental illness would be the contributing factor. If defendants are unable to communicate choices because of a mental illness, they would be considered incompetent to stand trial. 2. Ability to understand relevant information. For civil treatment decisions, this


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standard refers to the ability to comprehend relevant information that is contained in disclosure or other consent forms. For criminal competency, this could refer to understanding information provided by an attorney about the judicial process. For example, a defendant would need to understand information about the advantages and disadvantages of accepting a plea bargain as opposed to going to trial. 3. Ability to appreciate the nature of the situation and its likely consequences. Assuming that patients understand the relevant information, this standard focuses on whether they can apply that information to their own case, in a rational manner. As Grisso and Appelbaum (1995) noted, if patients know that the literature concludes that a particular treatment is effective but deny that it will be effective with them, or if they deny diagnostic evidence they are ill, they may be incompetent. In criminal competency, defendants may understand that deciding to go to trial would have a high probability of resulting in a death sentence but deny that it would happen in their cases because of a delusional belief that God would intervene on their behalfs. In Canada, the case law on this issue has made it clear that individuals need not have full appreciation to be considered fit to stand trial. Rather, only a limited cognitive capacity is required of defendants. Whether this is a strength or a weakness of the Canadian law is beyond the scope of this article. The fact remains that there is no use of the word appreciate in the Canadian standard for fitness. 4. Ability to manipulate information rationally. This standard focuses on reasoning ability. In civil cases, a patient must be able to compare the benefits and risks of treatment and make a reasoned choice among decision alternatives. In criminal competency cases, a defendant must have the ability to evaluate different legal options and make a reasoned choice. Note that this is not necessarily one that the attorney might support. It is not necessary that a defendant agree with an attorney to meet this standard. Rather, the choice must be grounded in reality and not on some irrational fear or delusion. Appelbaum and Grisso's (1995) fourth criteria has no equivalent in the Canadian fitness standard. The appellate judge in Regina v. Taylor (1992) made it clear that "it is not necessary that the accused be able to act in his own best interests and the court should not therefore adopt a higher threshold 'analytic capacity' test for determining fitness" (p. 553). Appelbaum and Grisso noted that in this standard irrational refers to illogical processing of information rather than the choice that is eventually made. In Canadian case law, however, it is the choice that has been examined. Canadian law has ruled that it is irrelevant whether the choice is rational (i.e., in the best interests of the defendant). What matters is that the individual possess a limited cognitive capacity. The application of the MTCS model to competency to stand trial has been developed by Bonnie (1992, 1993). In this next section, we review Bonnie's model and discuss how it relates to both Grisso and Appelbaum's (1995) work as well as other standards for defining and evaluating competency to stand trial.

Bonnie's Model of Competency to Stand Trial Bonnie (1993) provided a theoretical framework for a more structured approach to the assessment of competency, one that he believed could replace the opentextured approach that has been advanced by some researchers and clinicians (Grisso, 1986; Roesch & Golding, 1987). Bonnie made a distinction between two forms of criminal competency: competency to assist counsel and decisional compe-

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tency. Competency to assist counsel refers to the minimum capacities defendants need to assist in their own defense. Specifically, it refers to three areas of competence: (1) capacity to understand the charges, the purpose of the criminal process, and the adversary system, especially the role of defense counsel; (2) capacity to appreciate one's situation as a defendant in a criminal prosecution; and (3) ability to recognize and relate pertinent information to counsel concerning the facts of the case. (p. 554) These capacities, in Bonnie's model, are different from those capacities that may be needed to make decisions that arise in a particular case. Decisional competency refers to the ability to "understand and choose among alternative courses of action" (p. 556). In Bonnie's view, it is possible that some defendants could be considered competent to assist their attorneys but incompetent to make certain decisions that arise during the course of the defense, such as whether to enter a guilty plea, to waive constitutional rights, or to use an insanity defense. A defendant found incompetent to assist the defense would be barred from trial until competency was restored. This would be necessary in order to preserve the integrity and dignity of the criminal process. However, because the type of decisions vary from case to case, decisional incompetence may not be a bar to trial or other judicial proceedings, according to Bonnie. Indeed, Bonnie has argued that adjudication need only be suspended when an individual is incompetent to assist counsel. He suggested that it may not be necessary to suspend the proceedings for an accused who is unable to meet the criteria for decisional competence in certain cases when his or her lawyer is able to present a defense. Bonnie was quick to add that this may not appropriate in every case. H e noted that there would be exceptions, such as when a defendant wishes to waive constitutional protections. On both legal and ethical grounds, personal participation on the part of the defendant is necessary and therefore decisional competence should be the standard. Constitutional matters include waiving the right to a jury trial, the right to testify, the right to be present at trial, and the cluster of rights affected by a guilty plea. Bonnie indicated that in cases where these constitutional protections are not being waived it is not necessary for the defendant to meet the criteria for decisional competency; this would only be necessary when the defendant wishes to waive one or more of these protections. Bonnie has integrated his model with the model proposed by Grisso and Appelbaum (1995; Appelbaum & Grisso, 1988) for assessing competency to make decisions about medical treatment. Slightly expanding on their model, Bonnie (1993) proposed a hierarchy of progressively more inclusive legal tests (see Table 1; for comparison purposes, we have also included the Canadian standard in this table): 1. The first test proposed by Bonnie (1993) is the "expression of choice." This parallels directly the first criteria set out by Appelbaum and Grisso (1995). A defendant in a legal proceeding must be able to express a choice or maintain a stable preference, whereas a patient must be able to communicate a choice or maintain a stable treatment choice. 2. The second test proposed by Bonnie (1993) is that a defendant possess a "basic understanding" of the relevant information. In a legal setting, the defendant must be able to understand the advantages and disadvantages of choosing one option over another; in a treatment context, a patient must be able to understand the risks and benefits of the treatment options. 3. The third test that Bonnie proposed is "appreciation." As Bonnie (1993)


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Table 1

Comparison of the MacArthur Criteria for Treatment Competence, the Canadian Criteria for Fitness to Stand Trial, and Bonnie's Competency to Stand Trial Model MacArthur Treatment Competence Model

Canadian Criminal Code, Section 2

1. Communicate a choice 2. Ability to understand relevant information 3. Ability to appreciate the nature of the situation and its likely consequences 4. Ability to manipulate information rationally

1. Communicate with counsel 2. Understand the nature and object of the proceedings 3. Understand the possible consequences of the proceedings

Bonnie's Competency to Stand Trial Model 1. Expression of choice 2. Basic understanding 3a. Minimum appreciation 3b. Substantial appreciation 4. Reasoned choice

noted, "a defendant who is able to comprehend relevant information may be unable to appreciate the significance of that information in his or her own case" (p. 573). Bonnie divided this test into two parts: basic rationality or minimum appreciation and substantial appreciation. The basic rationality part of this test requires that a criminal defendant be able to express a reason for a decision that has a "plausible grounding in reality" (p. 574). This would translate to a treatment context in the same way. That is, a patient must be able to give a reason for a decision that has a realistic grounding behind it. The substantial appreciation part of this test allows for cognitive and emotional factors to be taken into account. These factors may impair an individual's ability to relate what he or she "understands" to decisions about choosing one option over another. Bonnie gave the example of a criminal defendant being able to give a plausible, nondelusional reason for reaching a certain decision and thereby satisfying the basic rationality part of the test, but the decision being so strongly influenced by delusional beliefs or pathological emotions that it should not be binding. 4. The final test outlined by Bonnie (1993) is that of reasoned choice, which he defined as "the capacity to use logical processes to compare the benefits and risks of the decisional options" (p. 575). Appelbaum and Grisso (1995) specified in their fourth criteria for treatment competence that it is the process and not the outcome that is to be considered important. Bonnie noted that the "reasoned choice test" that some courts have adopted with relation to competence to waive counsel or to plead guilty encompasses both an appreciation criterion as well as a capacity for rational manipulation criterion as described by Appelbaum and Grisso in relation to treatment competence. 2 Note that, as shown in Table 1, the Canadian standard does not include any 2Following Bonnie's conceptualization of criminal competence, one could also make a distinction between two types of treatment competence. The first would be competence to consent to treatment and the second would be competence to make a treatment decision. The first type of treatment competence would be satisfied by the first three criteria set out by Appelbaum and Grisso (1995): the ability to communicate a decision, the abilityto understand relevant information, and the ability to appreciate the nature of the situation and its likely consequences. The second type of treatment competence would require these first three abilities plus a fourth, the abilityto manipulate informationrationally. This type of decisional treatment competence would require that the individual demonstrate rational reasoning abilities.

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expectation that a defendant must make a reasoned choice or be able to manipulate information rationally (see Regina v. Taylor, 1992). In other words, the Canadian standard relates only to Bonnie's foundational concept of competence to assist counsel. Bonnie (1993) made an important point that relates to the situational or contextual nature of competency. He argued that the test of competence is more demanding when defendants refuse to go along with the recommendation of their attorneys than in those cases where defendants follow the recommendations of their attorneys. In those cases where the defendant is complying with the attorney's recommendations, a simple test of "understanding" is often sufficient for competence. On the other hand, when there is noncompliance on the part of the defendant a more stringent test of "appreciation" and perhaps even "rational manipulation" are demanded to determine competence. This parallels treatment competence wherein those individuals who are complying with doctor's orders or consenting to treatment may be required only to understand the options, whereas those patients who refuse treatment may be required to demonstrate appreciation or rational manipulation in order to be considered competent. Measuring Competency: Lessons of the MTCS We believe that the MTCS is relevant to the conceptualization of a wide range of competencies, and in this article we have discussed its application to the issue of criminal competency. We believe that it also has broad implications for the conduct of psycholegal assessments. In this section, we begin by reviewing some of the problems associated with using standard psychological tests to measure legal concepts. Much of this discussion relies on the ideas discussed by Grisso in his now-classic text, Evaluating Competencies: Forensic Assessment and Instruments (Grisso, 1986; see especially chapter 3). We then move on to discuss how competence was assessed in the MTCS and whether this approach provides a good example for future research and practice.

Is It Possible to "Test" Competency? It is by now axiomatic that psychology (qua science) and the law have very different world views and that these differences often lead to conflicts when psychological evidence is used in legal proceedings (e.g., Hess, 1987). One important difference is that psychology focuses on the understanding of universals or general principles regarding the causes of human behavior; in contrast, the law focuses on a specific case or instance of behavior. Put another way, psychology for the most part is interested in rules and often treats the behavior of individuals as "error variance"; the law is interested in the behavior of a given individual and ignores the general rule as irrelevant to the case at hand. These two approaches often are referred to within psychology as nomothetic and idiographic, respectively. The nomothetic approach that pervades psychological theory and research makes traditional psychological testing ill-suited for the assessment of psycholegal competencies. Most generally, a psychological test provides a structured sample of behavior for use in decision making (American Psychological Association, 1985). The structure comes from systematization in the way that the behavior is sampled, quantified, and interpreted. The assumption underlying the use of tests is that structure exerts control over forces external to the individual, so that the test results


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reflect only (or at least primarily) the dispositions of the individual, and not examiner bias, environmental factors, and so forth. Consider the components of standard testing procedures: the instructions to respondents, the examiner's behavior, the content of the test, the response format, the conditions under which the sample is obtained, the scoring or coding procedures, and the norms or cutoffs used to make decisions. The goal of testing is to keep all these procedures fixed and consistent across administrations of the test. If the only major source of variability in test scores is individual dispositions, then it is relatively easy to interpret a given individual's test scores vis-a-vis the responses of other groups of people (norm-referenced testing) or some objective or external standard (criterion-referenced testing; see American Psychological Association, 1985). It should be clear that assumptions underlying psychological testing are consistent with the goal of understanding the generalities of behavior. First, the structure of a disposition (e.g., personality trait, ability, or mental disorder) and its association with other dispositions are specified as much as possible in psychological theory. Second, in most cases, this structure is assumed to be stable across individuals and relatively simple; this assumption permits us to use psychometric theory to assign numbers to specific test responses and to aggregate those responses to yield summary scores on the test. Third, the disposition is assumed to be relatively stable across situations and across time; thus, the influence of environment or context on the expression of a disposition is de-emphasized. (Expectations about the degree of stability derive from the psychological theory of the disposition.) If one accepts these assumptions, then testing allows us to make descriptive and predictive judgments about individuals--to compare them with other people or objective standards and to infer how they behave across situations and across time. Thus, we can construe psychological testing as an attempt to make "broad-bandwidth" statements about an individual. By now, it may also be clear that psychological testing, as defined and discussed above, is incompatible with the goals of the law. In any given case, the law cares only about the structure of this disposition of this individual in this context. Thus, the evaluation of psycholegal competencies stresses "high fidelity" rather than broad bandwidth measurement. The following paragraphs explore in a bit more detail the problems associated with assessment of psycholegal competencies through psychological tests. Specification of competencies. For the most part, the nature of psycholegal competencies in Anglo-American law is not explicit or codified, nor are the associations among various competencies made explicit. Of course, this situation may change over time, as case law develops or new statutes are enacted (and thanks to the analysis of researchers like Grisso and Appelbaum, 1995). However, the use of vague or general language in law is intentional: It makes laws flexible, so that they can be applied in circumstances that are unique to the case at hand and unforeseen at the time they were drafted (e.g., Verdun-Jones, 1989). Thus, reductionism is of limited use in the analysis of legal concepts; we must be wary, lest we overspecify or "de-construct" a concept to the extent that its essential meaning is altered or lost. The law's eschewal of explication means that it is definitely difficult, and arguably even impossible, to operationalize legal concepts to the extent that they can form the basis for developing psychological tests. Structure of competencies. What we do know about the structure of legal competencies indicates that it is very different from that of most psychological

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dispositions. In psychology, most of the dispositional variables that we study are more or less unidimensional and traitlike. (Some psychological dispositions-intelligence, for example--are multifaceted, although the association among facets usually is well-represented by a unidimensional model.) Classical psychometric theory (see Nunnally & Bernstein, 1994) assumes that a disposition can be measured by responses to a universe of possible test items, all of which are imperfect indicators of the disposition (i.e., each of which is neither necessary nor sufficient to measure the disposition, but all of which are contributory). It then makes sense to sum the responses to individual test items and to assume that high scores reflect high levels of the disposition. That is, the more questions answered correctly on an intelligence test, the more intelligent is the respondent; the more items endorsed on a scale of extroversion, the more extroverted is the respondent. If a person responds incorrectly to only one of many items on the intelligence test, this does not mean that he or she has no intelligence. Similarly, if another person does not endorse only one of many items on the test of extroversion, this does not mean that he or she has no extroversion. Thus, we can characterize the structure of most psychological dispositions as additive and dimensional, and standard psychometric analytic procedures can be used to evaluate tests of the disposition. Legal competencies, on the other hand, tend to be conjunctive and categorical in nature. This is because the facets of competency are singly necessary and jointly sufficient to define that competency. One is either competent or not; the degree of competency or incompetency is unimportant. Furthermore, if a true test of competency could be devised, then the failure to endorse even one item of a multi-item test could result in classification as incompetent. For example, imagine the case of a man with schizophrenia who is being evaluated for treatment competency with a test of competency to consent to pharmacotherapy. Suppose that he is able to communicate a choice, to understand relevant information, and even to manipulate relevant information rationally. The only problem is that he suffers from a specific lack of insight and believes (with delusional intensity) that he does not have schizophrenia but rather is the second Son of Christ. It is entirely possible that this man will be found incompetent, even though his problems are highly specific and limited to a single facet of competency. Because the law is mute concerning the expected pattern of associations among the facets of a particular competency and among the elements of a particular facet, little is to be gained by analyzing the correlations .among the various items or scales of a competency test. Knowledge of the structure of competency across individuals is unhelpful; more important is the structure within a given individual. Thus, standard psychometric concepts are of doubtful relevance to the measurement of conjunctive, categorical concepts (e.g., Blashfield & Livesley, 1991). There is a limit to what correlations calculated from empirical data---or more complex statistical analyses based on those correlations--reveal about the nature of the underlying concepts. (To illustrate, sex and shoe size are highly correlated, as men tend to have bigger feet than do women; yet, this empirical fact tells us virtually nothing of interest about the nature of either sex or feet.) For this reason, we must be careful not to overinterpret the results of analyses looking at, for example, the internal consistency reliability or factor structure of competency tests (e.g., Bagby, Nicholson, Rogers, & Nussbaum, 1992). The role of context. Context plays a crucial role in the assessment of legal competencies. Indeed, legal competencies do not exist independent of the individual


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and the situation. Even slight changes in context can lead to dramatic changes in one's competency. Returning to the hypothetical example of the man with schizophrenia, whose competency to consent to treatment is being evaluated: As Grisso and Appelbaum (1995) have discussed, the man's competency depends, inter alia, on his understanding of the risks and benefits associated with the treatment options. Thus, if there is a change in the treatment options open to the patient, or if there is a change in the risk-benefit profile of a treatment, his competency to consent to treatment must be re-evaluated. It is entirely possible that a patient would be competent to consent to one form of pharmacotherapy, for example, but incompetent to consent to another. Similarly, if there was an exacerbation of the patient's mental disorder, he might be incompetent to consent to treatment this week, despite being competent last week. Another example: Suppose a woman suffering from a psychotic depression was charged with a criminal offense. The psychologist assessing her competency to stand trial notes that the woman has a good, rational understanding of the charges laid against her and the personal consequences of the trial process and that she also is able to communicate dearly with the psychologist. However, she has a delusional belief that male lawyers are involved in a government-organized conspiracy to imprison and kill her. If the defendant has a male court-appointed counsel, and if the woman believes her counsel is part of the conspiracy, the psychologist might conclude correctly that the defendant is incompetent to stand trial. However, if the defendant's counsel is a woman, then the psychologist might conclude that defendant is competent to stand trial. Thus, something as simple as a change in defense counsel might alter the competency of the defendant--although there has been no change at all in the mental status of the defendant. This contextual perspective was summarized by Golding and Roesch (1988) in the following manner: Mere presence of severe disturbance (a psychopathological criterion) is only a threshold issue--it must be further demonstrated that such severe disturbance in this defendant, facing these charges, in light of existing evidence, anticipating the substantial effort of aparticular attorney with a relationship of known characteristics, results in the defendant being unable to rationally assist the attorney or to comprehend the nature of the proceedings and their likely outcome. (p. 79) Rogers and Mitchell (1991) illustrated this principle by comparing the demands that would be placed on a defendant in a complex case of fraud and the demands in a minor case such as vandalism. They argued that the fraud case would likely require greater cognitive ability and complex reasoning ability in terms of the decisions that would need to be made and the level of participation that might be required of a defendant. It is precisely for this reason that we believe that competency cannot be assessed using standard or traditional psychometric approaches.

Implications for the Forensic Assessment of Competency Our discussion above leads to the conclusion that a highly structured procedure-that is, a test--for assessing competency might be (a) difficult to construct and (b) undesirable. Yet, all the measures developed for use in the MTCS are highly structured and "testlike." Does this mean that our conclusion is wrong and that forensic mental health experts should start developing tests for every type of

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competency? O r does it m e a n that the MTCS tests are suspect and consequently that the research based on them is meaningless? We believe that the answer to both these questions is, no. First, we have no doubt that development of the MTCS measures was difficult. One need only read descriptions of them, or peruse the final measures, to appreciate this fact. Second, although structured measures are undesirable for "real-life" psycholegal assessment, they may be a prerequisite for research. Third, the MTCS was made possible because Grisso, A p p e l b a u m , and their colleagues (Appelbaum & Grisso, 1995; Grisso & A p p e l b a u m , 1995; Grisso et al., 1995) fixed the decision-making context for the purposes of research. They decided to choose a specific set of treatment issues and a specific set of treatment options, which in turn allowed them to standardize the information given to participants. It is important to recognize that, as is always the case in psychological research, any improvements with respect to internal validity and statistical conclusion validity that stem from increased structure and systematization are achieved at the expense of reduced external and construct validity (Cook & Campbell, 1979; Kazdin, 1992). Thus, other researchers can attempt to replicate the general MTCS findings, so long as they also choose a specific decision-making context and develop the appropriate measures; however, these measures may lack utility for actual clinical practice. Science is willing to sacrifice external and construct validity, at least in certain situations; the law is not. If forensic mental health experts cannot or should not assess competency using a test, then what are they to use? Grisso (1986) gave us the answer a decade ago, when he developed the notion of a forensic assessment instrument (FAI). FAIs provide a general framework for conducting assessment; they also could be described as aides memoire or clinical guidelines. They lack the characteristics of a true psychological test but help to make the assessment more systematic than it might otherwise have been. FAIs do not yield a score that is interpreted with reference to norms or cutoffs. Rather, they help the examiner to collect relevant information and to follow the decision-making process required under the law. The content of the assessment (e.g., the questions asked or information collected by the examiner) is tailored to fit the specific evaluation context. Some existing competency measures are intended to be used in exactly this way, as a guide to the evaluator. These include the Competency Assessment Instrument (McGarry & Curran, 1973), the Interdisciplinary Fitness Interview (Golding, Roesch, & Schreiber, 1984; McDonald, Nussbaum, & Bagby, 1991), and the Fitness Interview Test (Roesch, Webster, & Eaves, 1984). 3 More recently, Hoge and his colleagues have developed the MacArthur Competence Assessment Tool: Criminal Adjudication (Hoge, Poythress, Bonnie, Monahan, & Eisenberg, 1996). Judgment 3Despite the availabilityof these measures of competency,it appears that most evaluations continue to take place in state hospitals or specializedforensic facilities, and in general, evaluators don't rely on the standardized measures of competency (Grisso, Cocozza, Steadman, Fisher, & Greer, 1994; Miller & Germaine, 1989). There are many reasons for this, including the fact that competencyevaluation referrals are sometimes used for purposes other than a concern about a defendant's competency. For example, some defendants are referred for competencyevaluations in order to get them out of jail and into a mental health facility(see Dickey, 1980). This practice undoubtedly accounts for the fact that very few defendants referred for competency evaluations are in fact found to be incompetent (Roesch & Golding, 1987). It may also account for the finding that alternatives to inpatient assessments are often ignored, because outpatient evaluations would not meet the perceived need to get defendants out of jail and into mental health treatment (see Roesch & Ogloff, in press).


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about the competency of a given defendant using these competency assessment instruments would be based on the specific context for that defendant rather than on some arbitrarily established cutoff score that would obscure or ignore important contextual issues. Conclusion The MTCS model can be applied productively to the conceptualization and assessment of competency to stand trial, perhaps more easily in the United States than in Canada because of differences in their conceptualizations of competency. However, the development of competency tests is not straightforward. We suggest that there are good scientific and legal reasons to believe that the link between psycholegal constructs and forensic assessment procedures is complex and indirect. It is not clear that all competencies can---or should be "de-constructed" into specific abilities, that the structure of forensic assessment procedures should mirror the structure of the psycholegal concept, or that it is even possible to develop nomothetic, context-free forensic assessment procedures (e.g., Golding & Roesch, 1988). We would argue that, because competencies are unlike most dispositional constructs studied in psychology, their development and evaluation should not be guided by standard psychometric principles. Indeed, itemmetric analyses, internal consistency estimates, and factor analyses all may be irrelevant in d e t e r m i n i n g whether a given forensic assessment instrument is useful. As we have suggested in this article, the evaluation of competency must, in many ways, be highly individualized to ensure that the contextual issues relevant to a given defendant are considered properly. Nevertheless, we believe that it is essential that our assessment procedures are grounded in theory and that we continue to conduct research on the reliability and validity of our assessment procedures. We need to continue conducting research examining the link between the behaviors observed in clinical interviews or other information obtained in an assessment and the ultimate criterion--the competency of the defendant in the legal arena. To that end, structured clinical assessment models are important research as well as clinical tools as they provide us with a consistent and rich data base on which to evaluate our decision making. References American Psychological Association. (1985). Standards for educational and psychological tests. Washington, DC: Author. Appelbaum, P. S., & Grisso, T. (1988). Assessing patients' capacities to consent to treatment. New England Journal of Medicine, 319, 1635-1638. Appelbaum, P. S., & Grisso, T. (1995). The MacArthur treatment competence study: I. Mental illness and competence to consent to treatment. Law and Human Behavior, 19, 105-126. Bagby, R. M., Nicholson, R. A., Rogers, R., & Nussbaum, D. (1992). Domains of competency to stand trial: A factor analytic study. Law and Human Behavior, 16, 491-507. Blackstone, W. (1783). Commentaries on the laws of England (9th ed.). London: W. Strahan. Blashfield, R. K., & Livesley, W. J. (1991). Metaphorical analysis of psychiatric classification as a psychological test. Journal of Abnormal Psychology, 100, 262-270. Bonnie, R. J. (1992). The competence of criminal defendants: A theoretical reformulation. Behavioral Sciences and the Law, 10, 291-316. Bonnie, R. J. (1993). The competence of criminal defendants: Beyond Dusky and Drope. Miami Law Review, 47, 539--601.

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