SUMMARY

Legal competence constructs focus on functional abilities: that which a person knows, understands, believes, or can do. The principal objective of an assessment related to legal competence should be the description of an examinee's functional abilities that are relevant conceptually for the legal competence in question.

The functional abilities that are relevant for a legal competence depend on an analysis of the environmental context of the legal compe­tence construct, focusing on the role to be filled by the person in that con­text. Legal, theoretical, and empirical criteria may be employed in this analysis and selection.

Deliberations about legal competencies require causal inferences regarding the hypothetical origins of current functional deficits, their rela­tion to past or future events, and their stability, change, or remediation. Therefore, assessments should be designed to obtain supplemental data with which to assist courts in addressing causal, predictive, and remedia­tion questions about the examinee's functional abilities. Data collection should be guided by theories and empirical research findings (within the examiner's areas of expertise) that provide the empirical relations and theoretical assumptions from which causal explanations and predictions generally are made in psychiatry and psychology. The data thus obtained may be offered to the court, along with relevant empirical research find­ings, allowing the court to make informed judgments about possible causal relationships. Theoretical speculation without empirical support should be avoided.

The interactive component of legal competencies requires considera­tion of the congruency or incongruency between a person's functional abil­ities and the degree of performance demand that is made by the specific instance of the context in that case. Thus a finding of legal incompetence speaks to a condition of person-context incongruency, not merely to a condition of the person alone. Therefore, assessments should strive to evaluate and describe the relevant environmental and social situations (e.g., the trial faced by the defendant, or the child for whom custody arrangements are to be made) to which to compare the examinee's abili­ties. Assessment of both the person and the situation on parallel dimen­sions will assist the examiner in describing the degree of congruency or incongruency between them.

Legal competence constructs are judgmental, in that they require a legal or moral evaluation that a person-context incongruency is suffi­ciently great to warrant a finding of incompetence. They are dispositional in that the finding authorizes particular legal response to the individual, often including deprivation of fundamental rights. These anticipated con­sequences are weighed when arriving at judgmental conclusions, making the conclusion about legal competence primarily a moral judgment. Therefore, the examiner should describe personal abilities, situational demands, and their degree of congruency in a way that avoids stating the ultimate judgment or conclusion about legal competence. That is, the examiner should offer no opinion concerning whether functional deficits or person-situation incongruencies are of sufficient magnitude to warrant a finding of legal incompetence.

The purpose of this model for describing and analyzing legal compe­tencies is to increase both the relevance and credibility of assessments for legal competencies, by structuring them according to the logic of legal standards for competence. Forensic assessments, however, must do more than meet the demands of legal standards. They must also satisfy the sci­entific standards of the examiner's profession. These requirements are the subject of the next chapter.