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In Competency Evaluations, Training Will Matter

A newly enacted West Virginia law establishes an expectation that the courts will be using the most qualified experts for mental competency evaluations.

Ryan Finkenbine, M.D.: "We were able to make a case that paying more up front for the evaluations to be done competently would save money." Credit: Sophia Bienek-Cate, MA, ALPS

An academic exercise in writing model legislation has resulted in a new law in West Virginia mandating the "highest standards" of training for psychiatrists conducting state-funded evaluations of competency to stand trial.

West Virginia Gov. Joe Manchin (D) signed a law that will go into effect in July mandating that state-paid evaluations of indigent defendants to determine their competency to stand trial must be conducted by experts who are, among other requirements, "[b]oard eligible or board certified in forensic psychiatry by the American Board of Psychiatry and Neurology" or "[b]oard eligible or board certified in forensic psychology by the American Board of Professional Psychology."

Forensic psychiatrist Ryan Finkenbine, M.D., who helped draft the bill, explained that prior to the bill's passage, state law had allowed any psychiatrist or psychologist to conduct competency evaluations. However, West Virginia was unique in licensing people with master's degrees to practice as psychologists; consequently, it was not unusual for evaluations to be conducted by master's-level practitioners, and the results were often flawed, he said.

"I have reviewed some of these evaluations, and there were often ethical violations as well as missing and misreported information," Finkenbine said. "There have been cases where the court has ordered multiple re-evaluations, up to as many as 13 times, costing the state an enormous amount of money.

"But under existing law, the state was tasked with paying for whatever was approved by a judge, and since lesser-qualified professionals were charging lower fees, a system developed whereby indigent defendants invariably were sent to the least-qualified person," Finkenbine said. "We were able to make a case that paying more up front for the evaluations to be done competently would save money."

He added that when the state's department of health and human resources examined the costs associated with the existing system for evaluating competency, that argument was confirmed.

Finkenbine is director of psychiatry residency training and director of the forensic fellowship program at the West Virginia University School of Medicine.

"The state has a financial interest in this issue," state Sen. Mike Oliverio (D), vice chair of the state senate judiciary committee, told Psychiatric News. "When an indigent person is charged with criminal activity that could result in being sent to prison, the individual is eligible for representation by the state, so right off the bat the state is paying the bill.

"It seems to me that the responsible thing to do is to determine whether that person is competent to stand trial before you embark on years of litigation. What Dr. Finkenbine did was to impress on me and other legislators the importance of having people who make that decision have suitable training by establishing a threshold of experience."

In fact, the law grandfathers in many professionals who are conducting evaluations, but Oliverio said it also clearly establishes an expectation that courts will henceforth be using the most qualified professionals.

Past APA President Paul Appelbaum, M.D., said West Virginia is not the first state to limit the pool of eligible examiners to the most qualified people in an effort to improve quality.

"It makes sense that mental health professionals who are performing specialized forensic evaluations should have the training and experience to do them competently," he told Psychiatric News. "Since the early 1990s, Massachusetts has required that psychiatrists and psychologists who perform criminal forensic evaluations for the state undergo a training process that includes didactic sessions, reviews of actual evaluations, and continuing education."

The Department of Psychiatry at the University of Massachusetts has a contract from the state to conduct the training, he said.

Appelbaum, who is also a past president of the American Academy of Psychiatry and the Law, said he believes that restricting evaluators is not without potential problems. "Although allowing only persons who are board eligible or certified to conduct such evaluations may well ensure a minimum level of quality, it clearly constrains the number of available evaluators, which could be a problem in the future," he said. "Substituting specific training for interested mental health professionals would allow a larger number of persons to obtain the necessary skills and sets an even more relevant standard.

"Of course, West Virginia's approach has the advantage, from the state's perspective, of being cost-free," he added.

The process of rewriting the state law began six years ago when Finkenbine, who teaches at the university's law school, undertook to write model legislation for competency evaluation as an academic exercise with a forensic fellow, David Estep, M.D.

Later, in 2004, the state convened a task force to examine the issues surrounding state representation of indigents and asked Finkenbine to attend. He presented his model legislation, and the task force decided to adopt it wholesale and to pitch it to the legislature.

"It was a learning experience for me to discover the politics that went along with putting together what was on the surface a very good idea," Finkenbine said. "But our persistence over the past three years in advocating from a position of strength has paid off in a way that will benefit everyone in the system—the courts, judges, lawyers, and people who have a mental illness.

"Anyone who is knowledgeable about what we do would agree that there is something special about it that requires some degree of training to do correctly," Finkenbine said. "We've managed to establish that if you do what amounts to an additional seven years of training, that training has some meaning, and you will do higher quality work."

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