As mentioned above, no particular diagnoses equates with incompetence to stand trial. Defendants who are adjudicated as incompetent to stand trial have diagnoses of mental disorders or defects, but a relatively low percent- age of persons with mental disorders or defects that are evaluated for trial competence are ultimately adjudicated as incompetent. The most common conditions associated with trial incompetence include psychotic illnesses, brain disorders, and intellectual disability [36].
The Diagnostic and Statistical Manual (DSM) is the standard diagnostic manual used by mental health professionals in the United States. Evaluators of competence to stand trial most commonly rely on the DSM to convey diagnostic material. Discussed here are those DSM-5 [37] diagnoses most frequently represented in trial competence assessments and DSM-5 changes that impact these evaluations.
Intellectual disability
Nicholson and Kugler [25] described a small negative correlation between incompetence and intelligence scores. However, others have found the oppo- site. Cochrane et al. [26] for example, reported a rate of 12%–36% from literature review of adjudicative incompetence among evaluees with diagno- ses of mental retardation. In looking at a sample of evaluees from a federal evaluation center, the same authors reported that 30% of defendants with diagnoses of mental retardation were assessed as incompetent by forensic evaluators. Because persons with the most severe forms of intellectual dis- ability are more often under constant supervision, these individuals are less likely to commit criminal acts [38]. Persons with milder intellectual disabilities are, then, more likely to be evaluated for competence to stand trial. Past studies have reported that persons with mental retardation com- monly report understanding of terms when, in fact, they did not understand them [39]. What was formerly called Mental Retardation is now termed
intellectual disability in DSM-5. In contrast to DSM-IV, DSM-5 emphasizes both cognitive capacity and also adaptive functioning. Severity of disability is determined by adaptive functioning in three areas: conceptual, social, and practical. Accordingly, this DSM-5 diagnosis requires the forensic evaluator to conduct a more thorough assessment of functional skills rather than rely- ing solely on IQ testing scores.
Social (pragmatic) communication disorder
DSM-5 adds a new diagnosis titled social (pragmatic) communication disor- der (SPCD) to its list of mental disorders. SPCD involves persistent difficulties in the social use of verbal and nonverbal communication. To qualify for this new diagnosis, DSM-5 requires that the person demonstrates deficits in four areas: (1) problems in social communication, (2) difficulties in altering how one communicates with another individual based on the unique aspects of that individual, (3) impairments in adhering to basic conversational princi- ples, such as telling a story, and, (4) problems understanding the more subtle aspects of verbal communication (such as humor or metaphors) [37 (p47–48)]. However, SPCD is distinguished from the DSM-5 diagnosis of autism spec- trum disorder because it does not require the presence of “restricted, repeti- tive patterns of behavior, interests, or activities” to make the diagnosis [37 [p49)]. Because the ability to communicate with one’s attorney is generally an important component of trial competency, might a defendant diagnosed with SPCD claim that they are incompetent due to their associated communica- tion deficits? For example, consider a defendant who is socially rude, refuses to greet others, easily misunderstands what others say and angrily responds, and does not change the way he speaks to match the decorum of the court- room. This presentation could describe many criminal defendants.
However, the application of SPCD diagnosis should not be taken out of context and applied inappropriately to persons who have difficulty com- municating primarily due to their maladaptive personality style. In reality, SPCD would be a difficult diagnosis for most defendants to claim if the crite- ria are applied correctly. In particular, the defendant needs to substantiate three important elements to qualify for this diagnosis: (1) The onset of com- munication problems must begin in the early developmental period; (2) The communication difficulties must encompass all communication domains described by the DSM-5; and (3) The deficits must “result in functional limitations in effective communication, social participation, social relation- ships, academic achievement, or occupational performance, individually or in combination” [37 (p48)]. Clinicians and evaluators should carefully apply DSM-5 criteria to avoid a misdiagnosis that incorrectly labels antisocial communications as SPCD.
Schizophrenia spectrum and other psychotic disorders
DSM-5 psychotic disorders are “defined by abnormalities in one or more of the following five domains: delusions, hallucinations, disorganized thinking (speech), grossly disorganized or abnormal motor behavior (including catatonia), and negative symptoms” [37 (p87)]. These symptoms are those most commonly associated with trial incompetence. Nicholson and Kugler’s [25] meta-analysis of 30 studies revealed that defendants diagnosed with a psychotic disorder had a significant correlation with incompetence. Likewise, Pirelli et al. [41] dem- onstrated that defendants with psychotic diagnoses had more had an 8-fold increased likelihood of being adjudicated incompetent as defendants without a psychotic diagnosis. Schizophrenia and other psychotic disorders may affect individuals in several ways that impact trial competence. For example, defen- dants with delusional beliefs may misattribute motives of their attorney or the prosecution against them (see Vignettes 1 and 2). Hallucinations may distract and impair a person’s ability to focus and understand the course of the proceed- ing. Psychotic symptoms may limit reasoning abilities.
Changes in DSM-5 from DSM-IV are likely to have little overall impact on trial competency assessments for persons with psychotic disorders in terms of making diagnoses and assessing the relationship between diagnosis and the legal abilities required for trial competence. DSM-5 eliminates the sub- categories of schizophrenia. The A criterion of delusional disorder no lon- ger requires that the delusions be nonbizarre. The most significant change to impact competency to stand trial assessments is DSM-5’s emphasis on severity of psychotic symptoms. New to DSM-5, the manual introduces a framework for assessing the severity of key symptoms. For all of the psy- chotic disorders, DSM-5 notes that the severity of psychotic symptoms is should be determined by a “quantitative assessment” of delusions, hallucina- tions, disorganized speech, abnormal psychomotor behavior, and negative symptoms [37 (p91)]. DSM-5 references an assessment instrument included in Section III (Emerging Measures and Models) titled the “Clinician-Rated Dimensions of Psychosis Symptom Severity Scale,” and this instrument pro- vides a dimensional rating scale for the primary symptoms of psychosis. Although use of this or another rating instrument is not required for diag- nostic purposes, the forensic evaluator should be mindful of the emphasis on symptom severity and be prepared to comment on psychosis severity if needed.
Bipolar and related disorders and depressive disorders
Several studies have reported that defendants with diagnoses of mood dis- orders are more likely to be adjudicated incompetent to stand trial compared
with the general population of trial competence evaluees [42, 43]. Defendants with bipolar mania, for example, may lack the ability to adequately control their behavior in the courtroom or in their interactions with their attorney. Depressive symptoms, such as severe emotional blunting, can impair trial competence when the defendants do not care about what happens to them, including the outcome of their legal case (see Vignette 3). DSM-5 changes in the category of Bipolar and Related Disorders are few and are unlikely to change competency assessments from DSM-IV in any meaningful way. For Depressive Disorders, the DSM-5 includes two new diagnoses that merit special attention in evaluating possible claims of trial incompetency.
Disruptive mood dysregulation disorder
The DSM-5 text notes that the essential feature of disruptive mood dys- regulation disorder (DMDR) is “chronic, severe persistent irritability” [37 (p156)]. The diagnostic criteria for DMDR includes the presence of signifi- cant and repeated temper problems (either verbally or physically) that typi- cally occur three or more times a week and are a mismatch with the youth’s level of development. In addition, the symptoms must be present for at least 12 months without any symptom free period lasting three or more months. DSM-5 notes that this disorder was added to help differentiate non-episodic irritability from a pattern of episodic-irritability, which is more consistent with bipolar disorder in children. DSM-5 particularly emphasizes that bipo- lar disorder is specifically designated for psychiatric presentations that include discrete periods of bipolar symptoms [37 (p157)].
Many adult defendants facing trial may have recurrent temper outbursts; however, they will not meet criteria for DMDD, even if they have verbal or behavioral problems that interfere with their ability to cooperate with counsel. The text criteria states that the diagnosis should not be made for the first time in those older than 18. Could an adult defendant continue to retain this diag- nosis into adulthood if he or she was diagnosed with DMDD at age 18 or less? The DSM-5 text suggests not. In particular, the DSM-5 notes, “. . . use of the diagnosis should be restricted to age groups similar to those in which validity has been established (7–18 years) [37 (p157)]. Based on this statement, the diagnosis of DMDD appears strictly limited to those less than age 19.
The real issue is the how the diagnosis of DMDD may be used as the predi- cate diagnosis to establish trial incompetency for juveniles (i.e., age 18 or less). Because youth often present with difficulties controlling their temper and behavior, the evaluator will need to carefully apply DMDD criteria to distinguish this diagnosis from other common mental health presentations found in juvenile delinquent populations (e.g., oppositional defiant disorder
or conduct disorder). The following guidelines may assist the evaluator in making these distinctions:
1. The diagnosis of DMDD cannot be made prior to age 6 in contrast to oppo- sitional defiant disorder and conduct disorder.
2. The diagnosis of DMDD must begin prior to age 10. Therefore, juveniles who first present with symptoms characteristic of DMDD at age 10 or older cannot be diagnosed with DMDD.
3. The diagnosis of DMDD cannot be made alongside the diagnosis of oppo- sitional defiant disorder (ODD). In distinguishing DMDD from ODD, the DSM-5 comments that mood symptoms are rare in children with ODD, that children with DMDD have a persistent disruption in mood between temper outbursts (unlike momentary mood disruptions with ODD), and that children with DMDD must have “severe impairment in at least one setting . . . and mild to moderate impairment in a second setting” [37 (p159)]. If the youth meets criteria for both disorders, DMDD is the only diagnosis that should be made.
4. The diagnosis of DMDD cannot be made alongside the diagnosis of bipolar disorder. If the juvenile independently meets criteria for bipolar disorder in addition to DMDD, only the diagnosis of bipolar disorder should be made.
Premenstrual dysphoric disorder
This is a completely new DSM-5 diagnosis. For a woman to meet criteria for premenstrual dysphoric disorder (PMDD), she must have at least five symptoms that occur during the week prior to menstruation, an improve- ment of symptoms within a few days after her menses begin, and minimal if any symptoms in the week after menstruation has stopped (Criterion A) [37 (p171)]. A female defendant could possibly claim she cannot cooperate with counsel during periods when she is experiencing PMDD due to her marked irritability, feelings of hopelessness, high anxiety, mood swings, and difficulty concentrating. However, it is important for the examiner to note that the DSM-5 criteria for this disorder must be met for most men- strual cycles that occurred during the prior year. In addition, Criterion A should be verified by “prospective daily ratings during at least two symp- tomatic cycles,” the symptoms must cause “clinically significant distress,” and the symptoms are not related to another mental disorder [37 (p172)]. PMDD would only apply to a small minority of woman and unlikely to have a significant impact on the number of women claiming trial incom- petence. If this issue is raised, careful evaluation of PMDD diagnostic cri- teria, potential personality traits or disorders, and malingering will be especially relevant.
Posttraumatic stress disorder
The diagnostic changes for posttraumatic stress disorder (PTSD) have been covered extensively in other chapters of this book (see Chapters 2, 8, and 11). The most relevant issue for potential concerns related to trial competency includes the new DSM-5 specifier “with dissociative symptoms” [37 (p274)]. This specifier includes the possibility that the individual could experience either depersonalization (feeling separated from one’s own body) or dereal- ization (a sustained sense that one’s environment is not real). A defendant might claim that his or her PTSD results in dissociation thereby preventing them from being able to assist counsel in real time during the trial or trial preparations. PTSD, as described by DSM-IV, was not a common diagnosis resulting in a finding of trial incompetency. It is unclear what, if any, impact this new specifier might have in future claims of trial competency related to a PTSD diagnosis claim.
Dissociative identity disorder
The diagnosis of dissociative identity disorder (DID) has been typically used to question trial competency in two situations: (1) The defendant cannot control his or her personalities, and therefore their behavior is unpredictable and impairs their ability to attend to the trial process or testify; and/or (2) The defendant’s personality who was involved in the alleged crime is not consistently present, or he/she does not remember the crime thereby, impairing their ability to assist in their own defense [44]. Although DID was included in DSM-IV, DSM-5 has made some changes to the diagnostic language which may raise new issues in the legal setting. First, both DSM-IV and DSM-5 describe that the individual has two or more distinct personality states. However, in Criterion A, DSM-5 adds that distinct personality states “may be described in some cultures as an expe- rience of possession” [37 (p292)]. DSM-5 describes these “possession-form identities” as those that commonly present as if a spirit or supernatural force has taken over the individual and as a result the individual talks or behaves in an obviously different manner than usual. DSM-5 asserts that these possessions may present as a ghost of a girl, a demon, or a deity [37 (p293)].
With this new language, will malingerers try to present that they are “possessed” and therefore cannot assist counsel, testify, or behave in court? DSM-5 cautions that few possession states will represent genuine cases of DID. The relevant text emphasizes that most pos- session states are considered normal and are often part of a reli- gious or spiritual ceremony [37 (p293)]. Second, DSM-IV Criterion C
noted that DID memory gaps were characterized by failing to remember personal information in excess of simple forgetting [40 (p529)]. In contrast, the DSM-5 significantly broadens this criteria and notes that a person will meet this criterion if he or she has repeated memory lapses for everyday inci- dents in addition to impairment in remembering personal information [37 (p292)]. One can imagine situations where a defendant claiming DID might now allege that they cannot remember basic everyday events, such as infor- mation that was presented to them about the legal process or when to appear for a court hearing. However, DSM-5 adds one criterion that likely narrows who can be diagnosed with DID when compared with the DSM-IV diagnos- tic criteria. In particular, DSM-5 now requires that the reported symptoms must cause “clinically significant distress or impairment in social, occupa- tional, or other important areas of functioning” [37 (p292)], a requirement not included in the DSM-IV. Therefore, if DID claims are raised, the foren- sic examiner should carefully review not only the claim, but evidence that that the symptoms causes clinically significant distress or impairment. The assessment of malingering will be particularly relevant for this diagnosis and is discussed in more detail in Chapter 11.
Intermittent explosive disorder
The intermittent explosive disorder (IED) criteria have greatly expanded under DSM-5. Under DSM-IV, the person had to demonstrate physical aggression to qualify for this diagnosis. Under the new DSM-5 criteria, the individual only need recurrent behavioral outbursts characterized by (1) verbal aggression or (2) damage or destruction to property and/or phys- ical assault [37 (p466)]. Consider the situation of a criminal defendant who frequently yells out in court and has a verbal tirade. His attorney states that it is impossible to work with him because when he tries to meet with him, he gets in repeated verbal arguments at least twice a week, and this pattern has been present during the entire three months that he has been working with him. The defendant’s behavior has resulted in the judge hold- ing him in contempt of court and having him physically removed from the courtroom.
Could this attorney raise a doubt of trial competency based on a diagno- sis of IED? Should this diagnosis be raised for consideration, the examiner should carefully document the frequency and duration criteria as required by DSM-5. More importantly, a distinction between impulsivity and aggres- sion characteristic of ASPD and Borderline Personality Disorder is highly relevant. In making this distinction, the evaluator will need to determine the degree, if any, that the behavior is planned and whether the degree of aggression is greater than expected based on the triggering incident. DSM-5
does not provide clear guidance on how to distinguish between IED and ASPD, only that “the level of impulsive aggression in individuals with antiso- cial personality disorder is lower than that in individuals with intermittent explosive disorder” [37 (p468)].
Neurocognitive disorders
Using the MacArthur Competence Assessment Tool-Criminal Adjudication (McCAT-CA) [17], Ryba and Zapf [45] sampled male forensic patients and found a positive association between cognitive function and competency. The DSM-IV diagnosis of Dementia is now classified as major neurocogni- tive disorder under DSM-5, and DSM-5 now recognizes less severe cogni- tive dysfunction with the diagnosis of mild neurocognitive disorder. With formal inclusion of the milder diagnosis, more individuals are likely to be diagnosed with cognitive dysfunction. Nevertheless, this change should not meaningfully impact adjudicative competence because the evaluator must assess how any cognitive impairment ties to the capacity requirements. The mild neurocognitive disorder criteria dictate that the disorder does not interfere with a person’s independence or activities of daily living. This exemplifies the point that this diagnosis alone is likely insufficient to cause such significant cognitive impairment that the defendant would be incom- petent to stand trial.