This column’s first outing addressed what happens when “a criminal defendant initially presented with a surprisingly minimal fund of knowledge.” This circumstance can significantly influence what tests are chosen and how evaluators phrase their inquiries. Let’s examine how counsel might consult with a reputable mental health professional on how it is that defendants facing cognitive challenges can—or should—sign documents in the course of a forensic evaluation.
Counsel: I want to thank you for that terrific evaluation you performed on my client last week.
Doctor: So what’s stopping you?
Counsel: The fact that although you said you were sitting down to write up the report, I still don’t have it.
Doctor: I did write it up. I wonder what could have happened. Did you check your spam filter?
Counsel: The only messages my computer blocks are magazine subscription requests and settlement offers over 10 years, and your email is on my “trusted sender” list.
Doctor: Looking here on the server, I’ve apparently opted out of the “trusted” category by default. I finished the report last Friday, but it doesn’t look like I ever sent it.
Counsel: Don’t feel bad. Every once in a while, after burning the midnight oil over a particularly complex brief, I’m so relieved to be “done” that I forget that critical last step. There is a “first” step I want to raise with you, though.
Doctor: Is this about that other report I haven’t started writing yet?
Counsel: It’s about what happens at or near the beginning of a forensic mental health evaluation.
Doctor: When I call the bank to see if your retainer check cleared?
Counsel: It’s not about the things the lawyer signs. It’s about the things the client signs.
Doctors: Do you mean the “informed consent” form?
Counsel: Yes. Do the clients I send you always sign one?
Doctor: No, for what could be any of a number of reasons. They might decide to refuse the examination outright. They might be lacking sleep, or lacking medication. They might not have brought their reading glasses. They might not have the reading ability to understand the form.
Counsel: . . . and that’s the one that concerns me right now. One of your colleagues was conducting an evaluation for me in a capital murder case.
Doctor: Thanks.
Counsel: That’s the case where you said you had a conflict of interest. Anyway, the evaluator had my client sign an informed consent form. It was 27 pages long. It contained words like “subrogating,” “assignation,” and “predetermined.”
Doctor: We’re not the ones who insist on all of that fancy language. Every time I meet with my own lawyer or see a quarterly newsletter from my malpractice insurer, another half dozen paragraphs get added. It’s not my fault people need an advanced college degree to understand these documents.
Counsel: It may not be your fault, but you’re not the only one who winds up being held accountable. The evaluator’s report claimed my client didn’t understand words like “judge,” “jury,” and “sentence,” and also that the state’s evaluation was invalid because it used a test that requires an eighth grade reading level.
Doctor: Let me guess: Now the prosecutor wants to see the informed consent paperwork.
Counsel: Exactly. Not only will the prosecutor use this to bolster their own expert’s opinion, but they’ll come after us about trial competency and eventually—if things go as badly as possible—they’ll use it to try to establish competency to be executed.
Doctor: There’s at least some guidance on this topic in the American Psychological Association’s Ethical Principles of Psychologists and Code of Conduct, which states that “psychologists inform persons with questionable capacity to consent or for whom testing is mandated by law or governmental regulations about the nature and purpose of the proposed assessment services, using language that is reasonably understandable to the person being assessed.”
Counsel: How can you find out if they have “questionable capacity,” and how can you find out what language they find “reasonably understandable,” until you assess them yourself?
Doctor: I didn’t write it.
Counsel: Do psychologists have anything else to say about this?
Doctor: The American Psychological Association’s Specialty Guidelines for Forensic Psychologists recommend, among other things, that when an evaluator concludes examinees “lack capacity to provide informed consent to a proposed, non-court-ordered service” but “have not been adjudicated as lacking such capacity,” then “reasonable steps to protect their rights and welfare” could be taken.
Counsel: Like what?
Doctor: The evaluator “may consider suspending the proposed service or notifying the examinee’s attorney or the retaining party.”
Counsel:That didn’t happen in my case. Of course, the expert was a psychiatrist, so I don’t suppose rules that were written for psychologists would apply.
Doctor: According to the Ethics Guidelines for the Practice of Forensic Psychiatry published by the American Academy of Psychiatry and the Law, if the examinee “is not competent to give consent,” then “the evaluator should follow the appropriate laws of the jurisdiction.”
Counsel: Why not follow the “inappropriate laws of the jurisdiction” while they’re at it?
Doctor: I didn’t write it.
Counsel: Do these Guidelines say anything else?
Doctor: When it comes to court-ordered and certain other evaluations, if examinees “don’t appear capable of understanding the information provided regarding the evaluation,” then “this impression should also be included in any report and, when feasible, testimony.”
Counsel: That’s right: “when feasible.”
Doctor: I guess that’s because I’m supposed to refrain from answering a question when . . .
Counsel: I didn’t ask it.
Doctor: It’s not all about the defense, you know.
Counsel: What do you mean?
Doctor: Prosecution experts get your clients to sign things, too.
Counsel: I should hope so! I’m at least as concerned that they provide the other side’s doctors with informed consent as I am that they provide it to you.
Doctor: Yes, but I’m talking about releases of information.
Counsel: Surely you don’t mean . . .
Doctor: Yes, I do. I was working with another defense attorney who persuaded the judge to allow me to observe the state’s examination. Their psychologist had a stack of releases handy and got one signed for every school, clinic, hospital, and former employer the defendant could remember.
Counsel: It’s a good thing I wasn’t there. Does this sort of thing happen frequently?
Doctor: All the time.
Counsel: Aren’t criminal defendants presumptively incompetent when they’re sent to a forensic hospital for a mental health evaluation?
Doctor: How is that different from when someone you send to me for a competency workup signs all manner of releases for you to get their records?
Counsel: Because I’m their lawyer, and the state’s expert is not their doctor.
Our readers were also promised a “balanced approach,” so here goes: Prosecutors whose experts are discouraged from obtaining signed releases may wind up arguing that the court should order the release of the defendant’s records itself. This is a development that in some cases may not be to defense counsel’s liking, when the specter of the court helping itself to copies of its own is considered.
