Psychiatric Annals

CME Article 

Examining Decision-Making: Understanding Civil and Criminal Competencies

Britta Ostermeyer, MD, MBA, FAPA; Lisa Anacker, MD; Jedidiah Perdue, MD, MPH; Adrienne Saxton, MD; Stephen G. Noffsinger, MD


Psychiatrists and mental health professionals in the role of forensic examiners require certain knowledge and skills to perform competency examinations, which are the most common type of forensic mental health examinations. Competency refers to necessary basic abilities to make certain decisions, such as medical treatment decisions in the civil legal arena. In criminal proceedings, the most common evaluation is the competency to stand trial examination. This article discusses competencies in general, with a focus on medical decision-making capacity and competency to stand trial. [Psychiatr Ann. 2018;48(2):79–85.]


Psychiatrists and mental health professionals in the role of forensic examiners require certain knowledge and skills to perform competency examinations, which are the most common type of forensic mental health examinations. Competency refers to necessary basic abilities to make certain decisions, such as medical treatment decisions in the civil legal arena. In criminal proceedings, the most common evaluation is the competency to stand trial examination. This article discusses competencies in general, with a focus on medical decision-making capacity and competency to stand trial. [Psychiatr Ann. 2018;48(2):79–85.]

Competencies must be carefully evaluated when there is concern regarding impairment, as incompetent persons may otherwise make poor decisions that result in unintentional harm. Forensic examiners evaluate a number of different civil and criminal competencies. The evaluations for various competencies differ based on what decision-making process the evaluee must be able to master.

It is important for forensic examiners to have a good understanding of the competency to be evaluated. Depending on the competency in question, this generally requires basic legal background knowledge, an understanding of the measuring standard that should be employed in the particular scenario, specific examination questions relevant to the issue, and a general psychiatric examination.

Competency in General and Civil Competencies

Competency refers to the ability or mental soundness necessary to carry out certain legal acts and/or make certain decisions.1,2 The general test is whether the person understands the nature of the specific act and is aware of the duties, obligations, and consequences pertaining to that specific act. The law presumes that people are competent to make their decisions and only steps in to examine competence when someone raises a concern that a person may not be competent to do certain acts or make certain decisions (eg, a last will and testament). Table 1 lists civil competencies that are commonly questioned and evaluated by forensic examiners.

Common Types of Civil Competencies

Table 1:

Common Types of Civil Competencies

It is important to know that being civilly involuntarily committed to an inpatient psychiatric unit does not automatically equate to being incompetent to make medical decisions.

Competency is moment-specific and can change over time,1 (eg, a previously depressed and incompetent person may regain competency after successful treatment of depression). Also, competency needs to be viewed as task-specific because a person with impairments may be able to make less complex decisions but may fail to navigate more complex decision-making processes. For example, a person with some cognitive impairments might be able to manage daily living arrangements but may not be able to make financial decisions.

Medical Decision-Making Capacity

Although the legal system uses the legal term “competency” as related to a person's medical decision-making capability, clinicians use the clinical term “capacity.” Individual state jurisdictions vary in their wording about medical competency; however, Grisso and Appelbaum3 published a model that consists of the following four abilities: (1) the ability to express a consistent choice; (2) the ability to understand information relevant to treatment decision-making; (3) the ability to appreciate the significance of that information for one's own situation, especially concerning one's illness and the probable consequences of one's treatment options; and (4) the ability to reason with the relevant information so as to engage in a logical process of examining and weighing treatment options.

Bearing in mind the principle of parens patriae (Latin for “parent of the fatherland”), most clinicians address competency to make medical decisions in a manner that is task-specific via a sliding scale approach. The sliding scale approach allows for a more lenient standard to be used when assessing capacity for a low-risk, high-benefit decision, and a more stringent standard to be used for a high-risk, low-benefit decision. For example, a demented patient may be able to consent to simple blood drawings, but may not able to consent to a more risky surgery.1 Conversely, such a patient could likely accept much needed nursing home placement but may not have capacity to decline such needed placement.

Illustrative Case 1: Medical Decision-Making Capacity

The patient is an 82-year-old man in the hospital recovering from a leg amputation due to poor diabetes management. His medical team has recommended that he be discharged to a skilled nursing facility, but the patient adamantly demands to return home. His medical team voices significant concerns about his ability to function independently, as he is unable to care for his diabetes and has no social support. When they ask him to explain his decision, he becomes angry and refuses to talk further. The medical team then decides to seek a psychiatric consultation to ascertain decision-making capacity.

This scenario represents a common situation for the consulting psychiatrist, who must first seek to understand the nature of the decision in question. The question in this case is straightforward: “Does the patient have capacity to refuse placement into a nursing facility?” This situation is best categorized as a low-complexity, high-risk scenario, in that failure to receive proper care could have grave consequences.

A capacity assessment involves a thorough interview and examination that probes a patient's understanding of his or her situation, the decision in question, and appreciation of relative information. The psychiatrist also explores the patient's ability to rationally manipulate information to reach a decision, with a heightened alertness for any potential psychiatric disorders that impair cognition or reasoning.

In this scenario, the consultant would ensure that the information regarding placement had been presented to the patient and then would discuss it with him. For the patient, the evaluation would explore the extent to which he comprehends his impairments and care needs, and how he applies that information to his decision. One would also explore whether cognitive impairment, depression, or other psychiatric disturbances are present and influencing the decision-making process. Collateral information and objective measures are useful additional data points. The assessment of this patient would likely involve interviews with nursing and physical therapy staff and brief assessments of global cognition and executive functioning. If he is found to lack decision-making capacity pertaining to placement, a surrogate decision-maker is appointed, beginning with the person named in an advanced directive (if the person is present).

Criminal Competencies

In the United States, there were approximately 10.7 million arrests in 2016.4 Once arrested, a defendant undergoes the various phases of a criminal prosecution, including booking, arraignment, discovery, plea negotiations, trial, sentencing (if convicted), and possible appeal. A significant number of people with mental illness are prosecuted through the US criminal justice system. Mentally ill defendants are over-represented in the arrestee population5 and have a significantly greater chance of arrest than someone without mental illness.6

Mental disorders potentially affect a defendant's ability to meaningfully defend themselves and competently participate in the other phases of prosecution and sentencing. Mental health professionals may be requested to evaluate a criminal defendant's competence to participate in one or more phases of prosecution. Table 2 lists commonly evaluated criminal competencies.

Common Types of Criminal Competencies

Table 2:

Common Types of Criminal Competencies

Competency to Stand Trial

State and federal standards indicate that defendants are incompetent to stand trial if they have a mental illness that makes them (1) unable to understand the nature and objectives of the proceedings and/or (2) unable to assist in their defense, commonly known as the Dusky standard.7,8

Prosecutors and judges are also concerned about the trial competence of a defendant with mental illness. Trying an incompetent defendant risks erroneous conviction; therefore, defense attorneys question their client's trial competency in 8% to 15% of felony prosecutions.9,10 Competency evaluations are typically sought due to the defendant's history of mental illness, behavior suggesting a mental disorder (currently or during the offense), and/or an uncooperative or irrational client.11 Competence to stand trial evaluations are among the most common court-ordered evaluations–approximately 60,000 are performed annually in the US.12 Among defendants evaluated for trial competency, 2% to 30% are classified as incompetent to stand trial.13

The methodology to conduct an evaluation of competence to stand trial includes (1) reviewing the defendant's relevant medical and correctional records; (2) reviewing relevant collateral sources of information (school records, interview family members, police reports); (3) personal interview of the defendant, including a psychiatric diagnostic interview and mental status examination with particular emphasis on orientation, memory, concentration, mood, affect, presence of delusions or hallucinations, and loose associations and inquiry into the specific areas of competency to stand trial, as outlined below and in Table 3; and (4) providing a written report with a well-reasoned opinion by applying the facts of the case to the competence standard in the relevant jurisdiction.

Areas to Be Evaluated in a Competency to Stand Trial Evaluation

Table 3:

Areas to Be Evaluated in a Competency to Stand Trial Evaluation

Most jurisdictions prohibit information obtained during a competence evaluation from being used to prove a defendant's guilt.14 The defendant's confession made during a competency evaluation is, therefore, inadmissible at trial.

During a competency to stand trial evaluation, the forensic examiner must make the following specific inquiries listed below.15

Ability to Understand the Nature and Objectives of Proceedings

Charges. The defendant must be able to understand the charges and the nature of the conduct alleged. A defendant who, due to a neurocognitive disorder, is unable to understand the basis of the criminal indictment is likely incompetent to stand trial.

Defendant's role. Defendants need to understand that they are charged with a crime and are facing prosecution.16 A defendant who delusionally believes that he or she is immune from prosecution is likely incompetent.

Severity of charge. A defendant needs to understand the severity of the charge and the possible range of penalties.

Pleas. A defendant needs to understand the pleas of guilty, not guilty, no contest, and not guilty by reason of insanity (and, in some jurisdictions, Alford pleas and guilty but mentally ill). A defendant who, due to intellectual disability or neurocognitive disorder, is unable to conceptualize the possible pleas is likely incompetent.

Courtroom personnel roles. A defendant needs to understand the roles of the defendant, defense attorney, judge, prosecutor, jury, witness, and victim.

Adversarial nature of trial. A defendant needs to understand which court personnel are acting adversely to their interests and demonstrate self-protective behavior.

Ability to Assist in Defense

Cooperate with defense attorney. A defendant must be able to have rational discussions and communicate relevant information to their attorney, and also be free of paranoid ideas about their attorney. An incoherent or mute defendant is likely to be incompetent,16 as is a defendant who develops paranoid delusions about his or her attorney. In contrast, the defendant who cynically perceives that the criminal justice system and/or public defender/defense attorney is skewed against them is likely not incompetent, because these are commonly held (non-delusional) perceptions among defendants.

Understand plea bargaining. Approximately 90% of defendants plea bargain,17 which means pleading guilty in exchange for reduced charges and/or sentence. Defendants must understand the concept of plea bargaining and be able to rationally make decisions about plea bargaining. Defendants who cannot conceptualize the abstract concept of plea bargaining, or who delusionally refuse to consider a plea bargain, may be incompetent.

Willingness to consider mental disorder defense. A defendant should possess sufficient insight into his or her illness to consider pleading not guilty by reason of insanity,18 guilty but mentally ill, or seeking mitigation due to mental illness, if appropriate. Otherwise competent defendants who irrationally refuse a mental disorder defense may have such a defense imposed on them by the court and proceed to trial.19

Appraisal of evidence and estimate of likely trial outcome. A defendant should be able to determine which evidence is helpful/harmful to his or her case, reasonably estimate his or her chances of conviction, and apply this information in deciding whether to accept a plea bargain.

Attention, memory, and concentration. A defendant should be able to pay attention during trial and have sufficient memory to retain and apply the information during trial. Depression, mania, or neurocognitive disorders may render a defendant incompetent due to deficits in these areas.

Understand appropriate courtroom behavior. A defendant should be able to understand and exercise appropriate courtroom demeanor. It is important to differentiate between a defendant who, due to illness, is incapable of acting appropriately from a defendant who elects to act inappropriately.

Rational account of offense. A defendant should be able to give a consistent and organized account of the offense. Such an account may help to achieve an alibi, acquittal, insanity, or mitigation. However, a defendant with permanent amnesia for the offense is not categorically incompetent to stand trial.20

Formulate defense plan. A defendant should be able to work with his or her attorney to develop a basic, rational defense plan and work toward acquittal or mitigation.

Make reasonable defense decisions. Using their knowledge of the information listed above, a defendant should be able to rationally apply his or her knowledge to their defense and make reasonable, logic-driven decisions.21,22

No self-defeating behavior. A defendant should be motivated to seek the best possible trial outcome. Defendants who seek an unfavorable outcome due to mental illness may be incompetent to stand trial.

Testify at trial. A defendant needs to be able to give rational, organized, and logical trial testimony that may assist in their defense. A defendant should also be able to withstand the stress of testifying and being subjected to cross-examination.

Structured Assessment Tools

Many structured instruments have been developed to assess trial competence: the Competency Screening Test,23 Competency to Stand Trial Assessment Instrument;24 Interdisciplinary Fitness Interview,25 Competence Assessment for Standing Trial for Defendants with Mental Retardation,26 and the Georgia Court Competency test.27 Some instruments are of limited utility as they assess a defendant's factual understanding but not reasoning ability.28 In recent years, additional competence assessment tools have been introduced, including the Evaluation of Competency to Stand Trial-Revised29 and Inventory of Legal Knowledge.30

The MacArthur Competence Assessment Tool–Criminal Adjudication assesses “adjudicative competence,” which includes competence to enter a plea, stand trial, and participate in pretrial proceedings as well as factual knowledge and decisional competence.16

Structured competency assessment instruments are not diagnostic tests to decide whether a defendant is competent to stand trial. Rather, the instruments' designers recommend that clinicians consider test results as one source of information, interpreting those results in light of the clinical interview and other relevant data.12 The recent trend has been for examiners to increasingly use standardized assessments as one source of data when conducting competence evaluations.31

Other Considerations

Although mental health professionals may render an opinion about a person's ability to understand the nature and objectives of the proceedings and the ability to assist in his or her defense, ultimately competence to stand trial is a legal question adjudicated by a judge. There is a presumption of competence to stand trial. Preponderance of the evidence is the standard of proof required to prove incompetence,32 and an incompetent defendant may not be convicted.33 Clinical competency opinions are admitted into evidence at a competency hearing. Courts typically (upwards of 90%) base the adjudication of competence on the opinion of the court-appointed clinician.34,35

Most defendants examined for competence to stand trial are deemed competent.13 A mental disorder per se is insufficient to conclude that a defendant is incompetent. In one study, almost one-third of defendants deemed competent to stand trial had a psychotic disorder.36 In addition to a mental disorder, incompetence also requires that the mental disorder impair the defendant's performance in the specific functional areas relevant to competence. In case of a courtroom-naïve defendant, it is important to know that not having basic legal knowledge per se does not render the defendant incompetent. If the defendant can be taught basic trial information, he or she is likely competent.

Approximately 20% to 30% of defendants evaluated for competence to stand trial are adjudicated incompetent,13,37,38 although there is a wide range (4%–77%) of incompetency rates among different jurisdictions.39 Approximately 37% to 50% of geriatric defendants are found incompetent.40,41 Men and women are equally likely to be found incompetent.42

The primary reason for incompetence varies by age group. Preteens and young adolescents are frequently incompetent due to inability to disclose relevant data to counsel, susceptibility to outside influence, inability to appraise the quality of legal representation, and difficulty making defense decisions.43,44 Younger adults are likely incompetent due to psychosis, mood disorder, or intellectual disability, whereas older defendants are likely incompetent due to dementia.40 Positive psychotic symptoms, particularly conceptual disorganization and delusional thinking, are significantly associated with incompetence.45,46

Severity of the charge has little effect on incompetency rates, although Buchanan47 suggests that complicated legal cases require a larger degree of mental capacity. Therefore, the competence required to stand trial on serious charges should be greater than for minor charges.47,48

Feigning incompetence to stand trial is a legitimate concern. Defendants facing possible conviction may have a motive to avoid trial. Estimates of feigned incompetence range from 8% to 21%.49

Clinicians who find that a defendant is incompetent to stand trial must opine whether the defendant is likely to be restored to competence if given treatment. In 1972, the US Supreme Court ruled in Jackson v Indiana50 that a defendant cannot be held for more than the reasonable period of time necessary to determine whether there is substantial probability that he will attain competency in the future.

Defendants adjudicated incompetent to stand trial are typically committed to a hospital for competency restoration treatment. An estimated 7,000 to 9,000 defendants are involuntarily committed to public hospitals annually for competency restoration,51 but a growing number of incompetent defendants are unable to access needed mental health care due to psychiatric bed shortages in state hospitals.52

Competency restoration rates vary depending on illness severity and time allowed for competency restoration. An estimated range of 66% to 90% of the defendants referred for competency restoration are successfully restored to competency.53,54 Restoration to competence is accomplished by treating the defendant's mental illness and providing education about the trial process.53,55

Defendants who incompetently refuse antipsychotic medication may receive involuntary treatment to restore trial competency. The involuntary treatment must be the least intrusive treatment for restoration of competence and medically appropriate (Riggins v Nevada, 1992).56 A defendant adjudicated incompetent to stand trial who nevertheless competently refuses antipsychotic medication may still receive involuntary treatment if the prosecution can prove that there is a compelling governmental interest at stake, such as bringing a defendant to trial on major charges (Sell v United States, 2003).57

For defendants who cannot be restored to trial competency, charges are dismissed or held in abeyance. Common reasons for competence unrestorability include treatment-resistant psychosis, dementia, and moderate to severe intellectual disability.58 Other factors associated with unrestorability include impairment in psycho-legal ability and the presence of severe psychotic symptoms.59 Some common characteristics of defendants who cannot be restored to competence include a high number of prior hospitalizations and incarcerations, previous findings of incompetence, lower-level legal charges, psychotic disorders, cognitive disorders, higher number of medications prescribed, and lower global assessment of functioning scores.60,61 Defendants who cannot be restored to competence may remain hospitalized only if civilly committed.50Table 3 summarizes the areas of competency to stand trial that must be evaluated by the forensic examiner.

Illustrative Case 2: Competency to Stand Trial

The patient is a 39-year-old man who was arrested and charged with attempted murder after he had assaulted his neighbor. The public defense attorney met with the defendant. The defendant spoke about demons that were trying to harm him, so the attorney filed a motion for a competency to stand trial examination.

A forensic psychiatrist performed a competency to stand trial examination on the defendant. Although the defendant was able to explain the charges against him, the different pleas, and the roles of courtroom personnel, he insisted that his neighbor was “in cahoots” with the judge presiding over his legal case. The defendant stated, “They all work for Darth Vader. The force is trying to destroy me!”

This case is a clear example of a person with psychosis who has delusional beliefs about the legal process that renders him incompetent to stand trial at the time of his forensic examination. The defendant is paranoid and delusional about the presiding judge and is likely not able to rationally engage in his defense preparation and trial proceedings. The forensic psychiatrist opined that the defendant was unable to understand the nature and objectives of the legal proceedings as well as unable to assist in his defense due to psychosis. In addition, the examiner stated that the defendant is likely restorable and must undergo inpatient competency restoration treatment at the state's forensic hospital with antipsychotic treatment and restoration classes to teach him about the trial process.


Performing civil and criminal competency evaluations is important as it is crucial to ensure that when concerns arise, persons are making competent decisions. Having basic background knowledge, understanding measuring standards used to evaluate competency, and acquiring certain examination-specific skills ensures that mental health forensic examiners can perform these commonly requested and important evaluations.


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Common Types of Civil Competencies

Competence to make medical treatment decisions

Competence to consent to enter a research study

Competence to practice one's profession

Competence to enter into a contract

Competence to get married

Competence to be a parent or adopt a child

Competence to vote

Competence to drive a car

Competence to write a last will (testamentary capacity)

Competence to make personal decisions (where to live or handle funds)

Competence to sue others or to be sued

Common Types of Criminal Competencies

Competency to waive Miranda rights

Competency to confess

Competency to plead guilty

Competency to refuse an insanity defense

Competency to waive right to counsel

Competency to represent oneself

Competency to stand trial

Competency to testify

Competency to be sentenced

Competency to be executed

Areas to Be Evaluated in a Competency to Stand Trial Evaluation

The evaluator needs to consider whether a mental disorder affected the defendant's understanding of
   Ability to understand the nature and objectives of proceedings


Defendant's role

Severity of charges and range of penalties


Courtroom personnel roles

Adversarial nature of trial

   Ability to assist council in one's defense

Cooperate with defense attorney

Understand plea bargaining

Willingness to consider mental disorder defense, if appropriate

Appraisal of evidence and estimate of likely trial outcome

Attention, memory, and concentration

Understand appropriate courtroom behavior

Rational account of defense

Formulate defense plan

Make reasonable, rational defense decisions

No self-defeating behavior

Testify at trial


Britta Ostermeyer, MD, MBA, FAPA, is the Paul and Ruth Jonas Chair in Mental Health and a Professor and the Chairman, Department of Psychiatry and Behavioral Sciences, College of Medicine, University of Oklahoma Health Sciences Center. Lisa Anacker, MD, is the Psychiatry Chief Resident, Department of Psychiatry and Behavioral Sciences, University of Michigan; and a 2017 Rappeport Fellow, American Academy of Psychiatry and the Law. Jedidiah Perdue, MD, MPH, is an Assistant Professor, Department of Psychiatry and Behavioral Sciences, and the Director, Mental Health, Stevenson Cancer Center, University of Oklahoma Health Sciences Center. Adrienne Saxton, MD, is an Assistant Professor of Psychiatry, Department of Psychiatry, Case Western Reserve University School of Medicine. Stephen G. Noffsinger, MD, is an Associate Professor and the Associate Program Director, Forensic Psychiatry Fellowship Program, Department of Psychiatry, Case Western Reserve University School of Medicine.

Address correspondence to Britta Ostermeyer, MD, MBA, FAPA, Department of Psychiatry and Behavioral Sciences, University of Oklahoma Health Sciences Center, 920 Stanton L. Young Boulevard, Oklahoma City, OK 73104; email:

Disclosure: The authors have no relevant financial relationships to disclose.


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