Competency restoration: Clinical vs. forensic assessments

One often hears folks in the system say that, though it's lamentable to use jails as a substitute for mental health treatment, at least sick people get services there. Seldom discussed, though, is that the process begins with a concerted effort to prove that mentally ill defendants are not, in fact, sick so they can be shown competent to stand trial. A presentation this morning at the Texas Criminal Justice Integrity Unit's mental health seminar by Dr. Bryan Scott - who assesses defendants' competency for Bexar County - identified some of the key distinctions between his forensic role and that of a clinical diagnostician, both in his discussion and his own demeanor and attitude toward the work.

Scott emphasized the radical differences between the role of a forensic mental health examiner vs. clinical psychologist psychiatrist. In a clinical assessment, he would typically run down a checklist of symptoms: Do you hear voices, etc.? In a forensic setting, he said, he doesn't interrogate symptoms, assuming malingerers would cop to all of them. but instead lets defendants bring symptoms to him. And when they do, he views them very skeptically, with his main task - and to hear him tell it the most "fun" part of the job - that of rooting out alleged malingerers (I say "alleged" because in one prominent example he insisted a man was faking though a jury had overruled him).

For example, instead of listing possible real symptoms, Scott will often suggest phony symptoms (e.g., are symptoms worse when you lie down, stand up, urinate, etc.?) to trip them up if they agree with items not associated with the possible illness. Or he'd ask a series of 50/50 questions ("Does a cow have three legs or four? Is a quarter worth 25 cents or a dollar.? Many mentally ill people, he pointed out, will answer those questions just fine. If they get most wrong, not 50/50 as you might if guessing, he assumes they're likely malingering. So that line of questioning is aimed at tripping up malingerers and merely wasting the time of the actually sick, and is not something you'd see in a clinical assessment.

In some cases, things that might cause a clinical diagnostician to think a mental illness more likely, said Dr. Scott, may mitigate against him believing a defendant. For example, mental illness (particularly bipolar and schizophrenia) are to some extent inheritable, so a family history normally implies it's more likely a patient will have the same problem. In the case of defendants, though, Scott said if their mother suffered from schizophrenia, a malingerer might have more intimate knowledge of symptoms and be able to mimic them. For this reason, he considers family history both "a rule-in and a rule-out" criteria.

Another key difference, said Scott: Forensic examiners determining competency do not have a doctor-patient relationship, though he does tell defendants "I'm here to help you." But his role is "not therapeutic," said Scott, who said it's a "totally different role than seeing a patient." He's not there to get them treatment. There is "no confidentiality," and he lets them know that up front. Indeed, he said, often defense attorneys will sit in on the interviews. That alone is a huge difference between the mental health treatment in jail and out: Is the client the client, or is the court the client?

Scott emphasized he wasn't assessing mental illness per se but legal competency to stand trial, declaring "Just because someone is delusional doesn't mean they're incompetent."

Dr. Scott's gleeful tone as he recounted "tricks of the trade" for identifying (or at least accusing) malingerers was difficult to suppress, and mostly he didn't really try. I don't say that to criticize him, at least too harshly (though at times it did seem a bit much). Malingering happens and somebody has to try to root it out. I certainly don't envy the task. Problem is, everybody including the legitimately ill, who are processed through the system in large numbers, get treated as potential malingerers on the front end, where possible diagnoses aren't probed so much to identify problems as to find excuses to ignore them. What a strange, almost perverse aspect of the system.