In the 1986 first edition of Evaluating Competencies (hereinafter, EC), Chapter 1 was entitled "Problems in Assessments for Legal Competen­cies.

" During the past 15 years, researchers and clinicians in this field have devoted considerable energy to improving assessment practices in legal contexts. As the present edition will show, the field of forensic assessment for legal competencies has matured considerably.

Before turning to that review, the first section of this chapter repeats a series of brief sketches of the legal competencies nearly as they appeared in the first edition. This establishes the domain of the book for new read­ers. Then we describe the historical problems in forensic assessments for legal competencies that were of concern in the first edition of EC, and we review how far the field has advanced in dealing with these issues. The chapter concludes with a restatement of the need for a conceptual model to guide the development and implementation of methods for assessing legal competencies.

Criminal and civil courts frequently make legal decisions about indi­viduals based in part on their physical, mental, and social capacities. Some of these legal decisions involve judgments about legal competence. For example, a court may have to consider an elderly person's prospect for managing day-to-day tasks of living, in order to determine whether to appoint a legal guardian to provide assistance to the elderly individual. A criminal court may need to determine whether a defendant with mental illness is able to participate in an upcoming trial.

There are many types of legal competencies in various areas of law. Yet all legal competencies have certain fundamental notions in common as legal concepts:

• All legal competencies recognize the rights of individuals to make decisions and have control of their own lives.

• Legal competencies recognize that some individuals may not have the capacities to make important decisions in their lives. This is of concern because their incapacities may jeopardize their welfare or that of others who will be influenced by their decisions.

• All legal concepts of competence provide a legal mechanism for iden­tifying individuals for whom the relevant incapacities may exist.

• When legal incompetence is determined, it allows, obligates, or jus­tifies the state's intervention in certain ways in order to protect the welfare of the individual, typically curtailing the individual's rights in the best interests of the individual and society.

A key point in concepts of legal competence is the need to weigh whether the individual's capacities are sufficiently impaired to require a finding of legal incompetence. Society authorizes courts to make these critical judgments, and courts often turn to mental health professionals to assist them in identifying individuals' capacities relevant for the decision that the court must make. Society and the law have long recognized psy­chiatrists and psychologists as experts in assessment and understanding of human abilities, emotions, and potentials. Further, many individuals whom the law declares legally incompetent manifest the same mental deficits that give rise to the need for clinical care. Therefore, legal codes and legal practice rely on mental health professionals to assist courts in their review of mental capacities related to the difficult issues posed by competence laws.

Beyond these common features, legal competencies in various areas of law have somewhat different criteria. Further, each type of legal competence may be defined somewhat differently across the statutes or case law of the nation's 51 legal jurisdictions. Subsequent chapters provide discussions of the major variations in legal definitions of each of six legal competencies reviewed in this volume. The present discussion provides a more general and very basic introduction to each of the legal competencies addressed in this book, and notes several other legal competencies that will not receive attention in later chapters.

Legal Competencies in the Criminal Process

Several points in the criminal trial process may require legal deci­sions based wholly or in part on a consideration of a defendant's psycho­logical capacities. These include the defendant's capacities: (a) to waive rights to silence and counsel "knowingly, intelligently, and voluntarily," prior to questioning by law enforcement officers; (b) to plead guilty or to dismiss counsel; (c) to stand trial (i.e., to function in the role of defendant in the trial process); (d) to possess the requisite cognition, affect, and voli­tion for criminal responsibility (i.e., the insanity defense); (e) to serve a sentence; and (f) to be executed (i.e., to undergo capital punishment).

Three of these areas produce the most frequent requests for the assis­tance of mental health professionals: capacities related to standing trial, waiver of rights during police investigations, and criminal responsibility.

Competence to Stand Trial (Chapter 4)

Our legal doctrine of competence to stand trial evolved from English common law. its earliest form focused simply on the capacity of the accused to plead, a ritualistic requirement without which the trial could not proceed. British common law distinguished allowable causes for remaining "mute" when asked to plead, recognizing that some defen­dants actually lacked the capacity to respond while others merely chose not to exercise their probable capacity to do so (sometimes motivated by a desire to delay the trial). A plea was not required for "idiots" and "lunatics," who were then excused from prosecution. Others were forced, by various means, to make a plea.

From this notion evolved a more complete doctrine of criminal competence based on a broader concern for fairness in the trial of persons accused of crimes.

The question of a defendant's competence to stand trial is raised fre­quently, in comparison to other competencies in criminal law, although it arises only in a minority of a jurisdiction's total criminal cases. If the ques­tion is raised, this will usually occur prior to a hearing on the criminal allegations. The question can be raised, however, at any stage in the adju­dication process, from arraignment through sentencing.

Determining whether a defendant is incompetent to stand trial requires an inquiry into the defendant's capacities as defined by the Dusky standard. Typically the question of incompetence is raised because of present or past evidence suggesting a serious mental illness or other psychological disabilities. An examination of the defendant's abilities by a mental health professional, therefore, is a standard part of the compe­tence inquiry in most jurisdictions. The forensic examiner's findings are reported to the court in writing, and sometimes in oral testimony, for use during a competence hearing at which a judge weighs all relevant evi­dence and makes a finding of competence or incompetence. A finding of incompetence to stand trial usually will result in a delay of the trial process while the state employs involuntary treatment to bring the defen­dant to competence.

Capacity to Waive "Miranda Rights" (Chapter 5)

Law enforcement officers sometimes seek a statement from persons suspected of crimes. The statements that suspects make (e.g., offense- related information or confessions) may be entered into evidence in crim­inal proceedings against the defendant only if the defendant was afforded adequate opportunity to choose to withhold the information or to have the benefit of legal counsel at the time the statement was made. This pro­tection arises from constitutional requirements designed to curtail the potential abuse of power by the state in seeking convictions and criminal sanctions against individuals.

A defendant's opportunity to claim the right to silence and to legal counsel requires not only freedom from coercive police actions, but also the defendant's knowledge that the rights are available and an under­standing of the nature and significance of the rights. Police are required to inform the individual of the rights (Miranda v. Arizona, 1966) in what are called "Miranda warnings,” usually consisting of four or five sentences describing the rights. The individual's subsequent choice to waive the rights and make a statement must be made "knowingly, intelligently, and voluntarily." If the waiver does not meet this test, then it was not made "competently," the waiver was invalid, and the information obtained by law enforcement officers would be inadmissible as evidence.

When a waiver's validity is questioned, the court must examine rele­vant facts to rule on the issue. Generally this will require consideration of circumstances of the police inquiry, as well as the psychological character­istics of the individual who was involved. Mental health professionals may be asked to examine the individual's abilities or mental status in order to provide information about the person's capacities to have under­stood and appreciated the rights of which the person was informed.

The court may determine that the individual had insufficient capac­ity to waive the rights knowingly, intelligently, and voluntarily. "Incompetence to waive Miranda rights," however, is neither a legal find­ing nor a formal legal concept. The individual's incapacity to waive Miranda rights is more like an intermediate conclusion that may be reached on the way to a legal finding of invalidity of the waiver. Thus, in contrast to incompetence to stand trial, an individual does not acquire a legal status of "incompetent to waive Miranda rights." Nevertheless, the concept of a person's capacities to waive the rights may be conceptu­alized, for purposes of forensic evaluation, as though it were a legal competence.

Criminal Responsibility (Chapter 6)

The law has long recognized two concepts on which responsibility for criminal actions depends: actus reus, requiring evidence that the accused person engaged in the alleged act; and mens rea, requiring a deter­mination that the accused person manifested the requisite mental state to have intended committing the act or to have foreseen its consequences. The insanity defense doctrine acknowledges that individuals whose men­tal capacities did not allow them to appreciate the wrongfulness of their acts or to control their behavior should not be held responsible for acts that otherwise would be criminal. Thus a finding of insanity constitutes acquittal.

At issue when testing legal insanity is the individual's state of mind at the time of the offense. Somewhat different legal tests for insanity are used in different jurisdictions. All of them, however, refer in one way or another to cognitive, affective, and/or volitional capacities of the defen­dant, and to the impairment of those capacities as a consequence of mental disorder.

The insanity plea is asserted in a very small minority of criminal cases, and in most jurisdictions it results in acquittal in only a small frac­tion of the cases in which it is raised. Mental health professionals typically are asked to evaluate defendants about whom the question of criminal responsibility is raised. This provides the court with information about characteristics of the defendant relevant to the cognitive, affective, and/or volitional capacities at issue.

The concept of competence to stand trial must not be confused with the concept of insanity. In addition to referring to somewhat different mental states or capacities, they refer to abilities at different times. Competence to stand trial pertains to a person's abilities at the time of the trial process, while insanity refers to the person's mental condition at the time of the offense. One may be competent to stand trial yet insane, or incompetent to stand trial yet sane. Moreover, the defendant who meets criteria for the insanity defense is not declared "incompetent to have com­mitted the crime." Nevertheless, this is the effect of a legal declaration of insanity, in that the defendant is seen as not having the requisite capacities to warrant a guilty verdict. Further, the court and the mental health pro­fessional are faced with much the same kind of task in insanity cases as in questions of other legal competencies: that is, assessment and considera­tion of the person's psychological capacities. Therefore, in this book, legal insanity is examined conceptually as a legal competence, despite recogni­tion that the law formally does not apply the terms competence or incom­petence to the concept of insanity.

Other Competencies in Criminal Law

Competence to plead guilty and competence to dismiss counsel refer primarily to capacities to make informed and rational decisions that may have serious consequences for the criminal defendant. A United States Supreme Court case, Godinez v. Moran (1993), decided that defendants who are competent to stand trial are competent to make the above deci­sions as well. Some courts may still consider these as competencies sepa­rate from competence to stand trial. Nevertheless, in Chapter 4 we will follow the precedent in Godinez that includes within the concept of com­petence to stand trial the abilities that would be necessary to make deci­sions about pleas and about dismissing counsel.

Legal Competencies in Civil Cases

Many questions of civil law require legal decisions based substan­tially on a consideration of an individual's physical and psychological capacities. Some of the more common questions refer to a person's capac­ities: (a) to be responsible for meeting a child's needs, as a parent or care­taker; (b) to consent to medical or mental health interventions (e.g., treatment, counseling); (c) to consent to participation in research; (d) to care for oneself and one's property; (e) to make a contract; and (f) to make a will (testamentary competence).

Three of these competence questions will receive relatively greater attention in this book, because they more frequently involve the assis­tance of mental health professionals in determining related psychological capacities. These are the areas of parental competence, competence to care for self and property, and competence to consent to treatment.

Parental Competence (Chapter 7)

The parens patriae function of the state has long allowed legal interven­tion to terminate parental rights in relation to a child when the child's health and welfare are endangered by the parent's care. The decision to ter­minate a parent's rights requires a determination that the individual is not a "fit parent," as defined by statute. The state then may remove the child from the parent's custody for placement with a more suitable caretaker.

Parental fitness or competence frequently involves an examination of evidence concerning the parent's past abuse or neglect of the child. in addition, a mental health professional may be asked to evaluate the par­ents and children involved, in order to provide the court with information of a psychiatric, psychological, or social nature that might bear on the question of the parent's legal competence to meet the child's needs and to ensure the child's safety.

The question of parental competence may also be raised in divorce cases in which two parents are in contest concerning legal custody of their children. Such cases usually involve no formal finding of incompetence status to determine custody, and in many cases neither parent would meet the legal criteria for parental unfitness. The court's task in divorce-related cases is to determine which parental situation represents the best prospects for the child's general welfare. Yet when mental health profes­sionals are asked to evaluate one or both parents and the child in such cases, frequently the capacities that are evaluated are much the same as in cases involving competence determinations for termination of parental rights.

Finally, parental competence is raised in legal decisions concerning a child's adoption, placement of a child with a family for foster care, or evaluation of families for their eligibility as a resource for foster care programs.

Competence to Care for Selfor Property (Chapter 8)

The state is empowered to intervene in the lives of individuals who are incompetent to care for themselves or to manage their property, so as to ensure their protection and care in accordance with the best interests of the incompetent individual and society. A legal finding of incompetence to care for self or property allows the state to appoint a suitable guardian, who will be responsible for decisions affecting the incompetent person's care and protection. Medical doctors and mental health professionals may be consulted to provide courts with information about the individual's capacities related to this legal determination.

Guardianship is most commonly sought for children, persons with developmental disabilities and mental illnesses, and elderly individuals whose diminished capacities for self-care or property management raise concern for their safety. The guardian may be authorized to make what­ever decisions seem necessary for the person's care, including decisions about medical care and institutionalization in mental hospital facilities, residential arrangements, and the conservation and expenditure of the incompetent person's financial resources.

Competence to Consent to Treatment (Chapter 9)

Law provides for the protection of individuals from medical or psychological interventions against their desires (except in certain emer­gency or court-ordered circumstances). Thus most situations involving proposed interventions by medical or mental health professionals require the consent of either the individual to whom treatment is being offered or a relative or guardian who is authorized to provide proxy consent.

The question of an individual's competence to consent to or refuse proposed treatment interventions arises from the doctrine of informed con­sent, which requires that the individual must (a) be provided information relevant for the decision, (b) make the choice voluntarily, and (c) be competent to decide. The question is most often raised when treatment decisions are being made by persons with developmental disabilities or mental illnesses, certain elderly persons, minors, or any individuals whose immediate medical conditions render them incapable of managing a request for consent. In these instances, mental health professionals may be asked to provide evidence concerning the individual's capacities to make decisions to accept/refuse the treatment in question.

The circumstances that raise the question of competence to consent reflect some of the more difficult issues currently facing mental health law. For example, they include the right and capacities of patients with mental illness to refuse highly intrusive treatments (such as medication, electroconvulsive treatment, and psychosurgery) and patients' rights to refuse life-sustaining treatment for terminal medical conditions.

Other Civil Law Competencies

Competence to consent to participation as a subject in research is less often raised for reasons of professional ethics and sometimes as a legal question. Special concerns about consent to participation in research arise with regard to minors, prisoners, or persons with mental disorders who are asked to be research participants. The evaluation of individuals for competence to consent to research has not been common in the past. It is becoming more frequent, however, as a consequence of recent inquiries into the participation of psychiatric patients in field trials of psychoactive medications (e.g., Appelbaum, 1998). Similarly, the competence of patients to consent to voluntary psychiatric hospitalization has begun to receive greater scrutiny in recent years (see Zinermon v. Burch, 1990; Appelbaum, Appelbaum, & Grisso, 1998; Poythress et al., 1996).

Competence to contract and competence to execute a will (testamen­tary competence) are concerned with an individual's capacities to make decisions about the management and disposition of financial assets. Thus they are special instances of the capacity to care for one's property, and they may require specialized assessment methods. Mental health profes­sionals may be asked to form opinions about an individual's testamentary competence on the basis of past records, documents written by the deceased, and the recollections of friends or associates.

Summary

No single legal criterion or test applies across all legal competencies. Each legal competence refers to somewhat different abilities related to various ordinary or extraordinary situations in the lives of defendants, patients, children and the elderly, or persons with no particular legal, developmental, or psychiatric status. The law, therefore, does not pre­sume that legal incompetence in any of these areas renders an individual incompetent in any other area of legal competence.

All of the legal competencies, nevertheless, have in common a reference to human capacities that must be assessed in the process of applying legal criteria for decisions about competence. Courts have recog­nized the difficulties in assessing adequately the relevant capacities in individual cases, as well as the gravity of the assessment task in light of the consequences of legal competence decisions for the individuals involved.

These concerns have allowed mental health professionals to gain wide access to the legal process as examiners and advisors to courts. Later chapters will document that some courts have relied heavily on the judg­ments of mental health examiners, at times producing a record of legal decisions that nearly mirrored the clinical opinions offered by expert wit­nesses. Thus the quality of examiners' evaluations is of great concern for fairness in the legal system and to protect the welfare of individuals about whom the courts make competence decisions.

In this light, heavy criticism of clinicians' evaluations for legal com­petencies in past decades raised serious concerns about the value of men­tal health professionals' participation in the legal competence process. Although many of the field's shortcomings have been mitigated in recent years, it is important that we recognize their history. Some of the criti­cisms of earlier days are still valid in some jurisdictions, and they are prone to recur if we are not vigilant. Moreover, we need to know our progress in dealing with past weaknesses, in order to inform courts of our improved methods and to be forthright about things that still are in need of change.

Therefore, in the next discussion we review criticisms that have been made regarding forensic mental health evaluations for legal competen­cies, as well as advances in recent years in the field's attempts to mitigate its earlier shortcomings.