Despite the large number of incompetent defendants referred for restoration, the published literature on the process of competency restoration and the efficacy of specific interventions remains limited (N Offsinger, 2001: Pinals, 2005). The present manuscript reviews the existing literature, identifies critical components of treatment programs, summarizes the research supporting use of specific interventions, and highlights key ethical concerns/ controversies. The manuscript focuses on the implications of the 2003 Sell decision for the process of competency restoration treatment. The means and resources available to forensic clinicians to help them address the Sell criteria in treatment planning, report writing, and testimony are discussed.
Key words: Competency restoration, involuntary treatment. Sell v. United States.
Within forensic psychology and psychiatry, competency restoration is an area that has received relatively little attention relative to domains such as initial competency to stand trial or sanity evaluations (Noffsinger, 2001; Pinals, 2005). The topic is important, however, since approximately 30% of defendants referred for assessment are found incompetent to proceed (Nicholson & Kugler, 1991; Roesch & Golding, 1980; Warren, Rosenfeld, Fitch, & Hawk, 1997). Some estimates have suggested that as many as 60,000 individuals are referred for competency to stand trial assessments every year (Poythress, Monahan, Bonnie, Otto, & Hoge, 2002). This would suggest that up to 18,000 individuals require some form of competency restoration treatment annually.
For those individuals who are referred for competency restoration treatment, there are significant legal and civil liberty issues at stake. Moreover, the defendant's level of functioning and treatment needs may have little impact on decisions about where treatment takes place. Many jurisdictions authorize inpatient hospitalization for competency restoration treatment regardless of treatment concerns (Grisso, Cocozza, Steadman, Fisher, & Greer, 1994; Roesch & Golding, 1980; Steadman, 1979). As such, defendants referred for competency restoration treatment run the risk of being confined in unnecessarily restrictive inpatient settings for excessive periods of time (Jackson v. Indiana, 1972; Miller, 2003; Morris & Meloy, 1993). Some inpatient settings assigned to treat incompetent defendants may have no specialized competency restoration programs and may offer no interventions beyond psychiatric medication (Pinals, 2005; Siegel & Elwork, 1990). In some cases, defendants may be committed to jails or other correctional facilities due to a shortage of inpatient mental health beds (Wortze, Binswanger, Martinez, Filley, & Anderson, 2007).
The impact of the Sell decision on competency restoration treatment
In Sell v. United States (2003), the U. S. Supreme Court significantly restricted the ability of clinicians to treat defendants with involuntary psychiatric medication for the purpose of restoring competency. Melton and colleagues (2007) have argued that the Sell decision does not appear to "pose a significant obstacle to the state's ability to force medication on refusing defendants" (Melton, Petrila, Pogthress, & Slobogin, 2007, p. 141). They argued that several defendants would meet one or more of the criteria set forth by the Supreme Court that would allow clinicians to medicate them. In practice, however, courts have tended towards a conservative interpretation of the Sell case.
Attorneys have vigorously argued that standard and routinely accepted psychiatric treatments may not be "medically appropriate" for their clients. Forensic mental health experts have been asked to testify regarding scientific evidence that a given treatment is "substantially likely" to restore a particular client to competency. The impact has been that the ability to use psychiatric medication for competency restoration treatment in various jurisdictions has been significantly restricted. …