July/Aug 2007

State of Mind: Evaluating Competency to Stand Trial
By David Surface
Social Work Today
Vol. 7 No. 4 P. 17

See how forensic social workers wrestle with professional ethical issues that emerge in determining mental fitness to face prosecution.

In movies and TV shows that focus on the drama of criminal trials, one familiar character is the police psychologist or psychiatrist called to examine the defendant whose mental competency is in question, the learned professional who takes the stand and testifies whether the defendant is mentally capable of standing trial. In real life, however, the professional playing this role is more likely to be a social worker.

Katy Heffernan, MSW, LCSW, is a forensic social worker with the office of the public defender in New Haven, CT. Her interest in forensics has its origins in her family roots. “I come from a family of attorneys and teachers,” she says, “and I’ve always been interested in people who get arrested and why that happens. At the time when I first wanted to be a forensic social worker, I thought that was what forensic social work entailed.”

Heffernan recalls walking into the law and psychiatry department in the New Haven mental health center and saying, “I want to work in forensics.” A social worker looked at her and said, “Well, what does that mean?” Heffernan laughs, “And I said, ‘I have no idea, but I know I want to do it.’ And that started my education.”

Like the young Heffernan, many social workers have only a spotty knowledge of what forensic social work is all about. Child custody issues involving separation, divorce, neglect, termination of parental rights, the implications of child and spousal abuse, juvenile and adult justice services, corrections, and mandated treatment—these are just some of the wide range of court proceedings in which forensic social workers are involved. One of the most interesting and challenging is evaluating for competency to stand trial.

The Competency Evaluation Process
The process of evaluating whether a client is competent to stand trial involves two major areas. First, clients must understand the legal proceedings against them, what they’ve been charged with, what the roles of the different court personnel are, the difference between pleading guilty and not guilty, and what accepting a plea bargain means.

The second factor is the clients’ ability to assist in their own defense. Are they able to work with their attorneys and take an active part of their own defense? “Without those understandings,” explains Heffernan, “it isn’t ethical for someone to go before a judge and enter any kind of a plea. The competence statute really protects people’s rights.”

The duties of forensic social workers who evaluate for competency to stand trial vary from state to state. In Nevada, for instance, social workers can evaluate competency to stand trial on misdemeanor cases. Tom Durante, LCSW, is director of social work at Lake’s Crossing Center for the Mentally Disabled Offender, a forensic mental health center for the state of Nevada. “What we do is gather a little historical background about clients’ mental health histories and their mental status—how they’re doing that day,” Durante explains. “Then, finally, there’s the competency evaluation, which is seeing if they know their charges, know their attorney, and know the legal system well enough to stand trial.”

Heffernan works on the front lines of forensic evaluation. “Clients come into my court and, sometimes, they are too paranoid and they can’t participate. Maybe they’re responding to internal stimuli or voices and aren’t able to attend to the information. I try to work with people to find out if they know where they are, why they’re here. I evaluate and give my opinion as to whether there needs to be an order from the court.”

If a client’s mental status is in question, the social worker tells the defense attorney who then brings the issue to the judge. Alternately, the state’s attorney or the judge could raise the issue. The judge then issues a court order mandating the office of forensic evaluation to do a formal competence to stand trial evaluation.

While a formal evaluation is often done by a psychiatrist working alone, in states such as Connecticut, the evaluation is performed by a team of mental health professionals, including a psychiatrist and psychologist; this team is often led by a forensic social worker. “I talk with the team who’s going to do the formal evaluation,” explains Heffernan. “Then I step out at that point.”

After the formal evaluation of competence to stand trial, the next phase is often “restoration,” in which clients are sent to a particular setting, most often a hospital, where they are “restored to competence.” Clients are usually in the hospital for 60 to 90 days for the initial restoration, during which time they not only undergo a full evaluation by psychologists, psychiatrists, and social workers but also attend class to learn about the court process so they face their charges as a competent person.

Social workers are also frequently involved in the restoration process. First, a clinical social worker on the hospital unit assesses mental functioning and other clinical issues. In addition, a second social worker may fill the role of “forensic monitor,” working in concert with the clinical social worker but with a focus on assessing the client’s competence to stand trial. This social worker typically writes the report that ultimately goes to the court. If the defense attorney or state’s attorney doesn’t agree that the client is now competent to face charges, social workers in the position of forensic monitor may be asked to testify in court to defend their report.

The Forensic Track: Blazing Your Own Trail
In Connecticut, Heffernan explains, there is no formal academic track for a social worker who wants to pursue forensic work, “so I made up my own.”

At that early point in her career, Heffernan had been thinking that she would get a degree in forensic psychology. But after meeting with people in the outpatient clinical, secure hospital, and state lab settings, everyone advised her to get a social work degree.

“In Connecticut, the licensed clinical social workers are valued pretty highly,” says Heffernan. “They can get degrees on par with other people who have PhDs because of the extra training they go through with the social work degree and then the two years of training afterwards for the licensure. In this state, we’re fortunate that they really do respect the academic work that goes into becoming an LCSW.”

Early Choices: Finding the Forensic Path
Durante describes how he first became involved in this line of work. “I was actually first introduced to forensic social work in 1988 when I was offered a position as a private contractor here at the agency I work with now.” Durante worked at Lake’s Crossing Center for one year, during which time he absorbed knowledge about the process of evaluating clients for competency to stand trial. Although he went on to work in the civil hospital setting, he came back to forensics. “I found it to be a fascinating field,” he says.

“I liked doing psychology work, and I also liked working in the criminal justice field,” says Heffernan. “And I was looking for something that would combine the two.” Heffernan had worked with adults with profound mental illness, substance abuse, and cognitive disabilities and had developed a good background in psychiatric difficulties. But what was missing was the criminal justice aspect. “So,” says Heffernan, “I just started calling people and asking if I could have interviews.”

Heffernan met with people at the Whiting Forensic Institute, a secure hospital lockdown setting where people who are acquitted of serious charges for reasons of insanity are held for restoration to competency. “So I met with them,” she says. “I went to the forensic lab just to see what was out there and what would satisfy my clinical side and my interest in criminal justice.” Heffernan ended up with a master’s degree in social work and focused her field placements within forensic settings.

In one setting, she was involved with the initial evaluation for competence to stand trial; in another, she was involved in the restoration to competence. In still another setting, she participated in homeless outreach where she worked with clients with a multitude of psychiatric issues. “Then I applied for a position in the public defender’s office, and when one opened up, they called me,” she says.

Heffernan still works in the public defender’s office in what is known as the high court, or part A. “The people who come here are accused of felonies,” explains Heffernan. “I work with seven attorneys, three investigators, and three secretaries. I’m the only social worker in the office. It’s very interesting work because you never know what the client’s issues are going to be. My job is to assess the clients and see if they’re suffering from any kind of disability or substance abuse issue, if they’re victims of sexual assault themselves, if they’ve been arrested for sexual assault.”

Heffernan’s job takes her to a variety of settings, some of which many other social workers never get to see. Because the majority of her clients are incarcerated for serious felonies, such as murder, rape, robbery, and arson, Heffernan meets with clients in the lock-up of courthouses where they come to be arraigned or in hospitals where they’ve been admitted for various reasons. “I also meet with clients in various jails and prisons,” says Heffernan. “Unfortunately, in Connecticut, we have quite a few.”

Ethical Dilemmas: Legal vs. Clinical Agendas
Occasionally, the social worker and attorney’s agendas may conflict. “Let’s say you have a defendant who is a minor child, and the department of children and families has recommended that he go into a treatment program,” explains Heffernan. “Let’s also say that there’s an opening in the treatment program, but he has to enter it immediately in this very short time frame or else he goes to the bottom of the list. In order for the child to be released for treatment, he has to understand what’s going on and plead guilty for the judge to bond him out.

“But what if the social worker or the attorney doesn’t feel the child is capable of understanding the charges against him and is therefore not competent to stand trial? The problem is that it’s obviously not protecting his legal rights to just go ahead and put him in the treatment facility if it means he has to plead guilty to a charge he doesn’t understand. As a social worker, I’d absolutely want to make sure that he got the clinical treatment he needs, but as a worker within the legal system, I have to recognize that this isn’t in his best interests. I need to make sure he’s protected legally,” she continues.

Ideally, the social worker and attorneys work together to procure the best legal outcomes for the client. Unfortunately, this sometimes clashes with what the social worker believes is the best clinical disposition for the client.

Heffernan tells of her own introduction to the kind of conflicts that can arise between legal agendas and social work priorities. “I had a case with this young woman and felt that she needed to be in a partial hospital program and also needed to be on medication and that these needed to be conditions of her probation. We wanted to recommend this to the court because we felt that would be the way she’d be most successful in her life and not come back into the court system,” she explains. “And the attorney came to me and took my file and said, ‘OK, I’m going to put this in her file. If she violates her probation and comes back, we’ll go with this plan.’ And I was very confused. I said, ‘No, this is what needs to happen.’ And then he told me that he’d just been before the judge and had gotten her a youthful offender disposition, which is a kind of probation which if the conditions are not violated for a year, the charge will not appear on your record. And he said, ‘As much as I agree with what you’re saying, and as much as I think that these conditions might enable her not to come back, I can’t do my job as a defense attorney if I agree to putting five or six conditions onto a probation that she might violate, then she’d come back and that charge would be on her record.’ So that was a huge education for me.”

There is another kind of ethical dilemma that forensic social workers may encounter while conducting evaluations of competency to stand trial; one that, in theory, poses a potential threat to the social worker’s career.

In Connecticut, there is a legal opinion written that public defendant social workers on the defense team are not mandated reporters and communications between the social worker and the client fall under the client-attorney confidentiality. “So if a client says to me, ‘Yes, I did this crime and I also molested a child last year,’ in a different setting, I would report that to department of children and families and start an investigation,” explains Heffernan. “But in this setting, I’m not allowed to do that.”

Fortunately, client-attorney confidentiality does not extend to crimes that may take place in the future, so social workers—like attorneys—are bound to report when their client makes a specific threat. “If the person says, ‘I’m going to leave and go molest someone,’ then the social worker, just like the attorney, has a duty to report that and warn the person. But in a treatment setting, if a client had said to me, ‘I molested my daughter two years ago, but I’m not doing it now,’ and she’s a minor, I would then have to report that,” she explains.

Shelly Bryant, LCSW, who also does competency evaluations at Lake’s Crossing Center, believes there is a substantive difference in the kinds of communication that pass between a client and a social worker in both a clinical and legal setting.

“Typically, a lot of what social workers talk about is confidential, but there’s no confidentiality in a competency evaluation. The kinds of things that we report to the court and the attorneys are very different from the kinds of things that a client tells a social worker in confidence,” Bryant says.

Durante’s perspective on the potential ethical conflicts in forensic social work is based on his understanding of who the forensic social worker’s client actually is. “With competency to stand trial, ultimately our client is the court,” says Durante. “We’re not taking a side—we’re assessing.”

Despite the fact that forensic social workers are not technically supposed to be working on behalf of the defendant, Durante does see his job as having a positive benefit for the people he’s called on to evaluate.

“At the same time, I think that part of our role in doing an evaluation in a professional manner is that, ultimately, we’re protecting who would be unfairly tried if they were unable to assist in their own defense,” says Durante. “So even though I do feel that we are a neutral party, at the same time, we are protecting individuals who are incompetent through our professional recommendations to the court.”

Social Workers and Forensics: A Good Match
Patrick Marquis, LCSW, who works with Durante at Lake’s Crossing Center, agrees that social workers offer unique perspectives and abilities that make them highly suited to forensic social work in general and evaluating competency to stand trial in particular.

“Part of our generalized education in social work probably gives us more of a systematic perspective than other disciplines,” says Marquis. “It’s such a focal point of our education to look at the person in the environment and how that has helped shape who they’ve become today—that may be a slant that we’re able to focus on more than other disciplines.”

Marquis points out that social workers have a particular and extensive knowledge base that helps them not only evaluate the client’s current status but also make choices and predictions about the client’s future. “We also have a good knowledge of the community resources that are available for a client who is going to be processed through the legal system. I think it’s crucial that we know what that client is going to need once the legal part is complete,” he says.

What initially surprised Heffernan was how social workers take the lead on the competency evaluation team. “The teams are very comprehensive with all the disciplines—the psychiatrist, the recreational therapist, and the psychologist,” says Heffernan. “I like where the social workers are situated within those teams. By virtue of being a social worker, you’re looking at the details within the whole picture, and when you go the psychology route, it’s much more narrowly focused, so it appealed to me to be aware of that narrow focus, but to be aware of the bigger picture.”

— David Surface is a freelance writer and editor based in Brooklyn, NY. He is a frequent contributor to Social Work Today.

Career advice
What kind of advice would these professionals offer to social workers interested in working within the legal system?

“Don’t be afraid to call people who are already in the field,” says Katy Heffernan, MSW, LCSW. “Don’t just look at books; talk to people who are doing it, find out how it works and what’s the best way to be prepared. That was the most helpful thing to me, and I find it’s the most rewarding thing to me now when people call me and say, ‘Can you tell me about your job?’ I don’t think there’d be one professional who’d say ‘I can’t help you’ if they’re approached by somebody who really wants to pursue a career in this area.”

Forensic social work seems to be gathering more respect. This year, Heffernan is being honored by the National Association of Social Workers as the outstanding social worker of the year from Connecticut. “Sometimes people look at forensic social work and say, ‘How can you work with people who aren’t victims?’ So it’s nice that, with all the various disciplines within social work, this year the award is going to forensic social work.”

Patrick Marquis, LCSW, points out that the kind of experience and knowledge that social workers gain while working within the legal system can have long-ranging benefits for social workers and their clients—even beyond the field of forensics.

“Even if we ever do branch off or move on to other fields, our knowledge of the legal system and how it works, how our clients interact with the legal system, how the legal system can work for or against them will be of great benefit to our clients in general,” Marquis says.

— DS