Jeanette Kinard

Jeanette Kinard is Director of the Travis County Mental Health Public Defender Office in Austin, Texas. A longtime criminal defense attorney, Jeanette has a bachelor’s degree from the University of Texas at Austin and a law degree from the University of Houston. She is a frequent speaker, statewide, on the topic of the mentally ill in the criminal justice system. She is a member of the State Bar of Texas, Austin Criminal Defense Lawyer’s Association (president, 1994–95 and 2004–5), Texas Criminal Defense Lawyers Association (Board of Directors, 1996–2000), National Criminal Defense Lawyers Association, and the National Legal Aid and Defender Association.

Get Ready to Tighten Your Belts…

A recent evaluation from an attendee of one of our Criminal Defense Lawyers Project (CDLP) CLE events which had a DVD presentation said, “I’d much rather see the speaker in person so I can ask questions. Let’s not have canned DVD presentations!”

     While I appreciate the sentiment, our grant and budget for CDLP CLE’s has been cut dramatically and there will be more DVD presentations. There will also be less catered food at hotels and more CDLP CLE’s in less expensive or even free venues.

     These are difficult times in which we hear daily of government cost-cutting and news of families searching for ways to save. I don’t know a criminal defense lawyer in Texas who isn’t feeling the pinch. These same cost-cutting necessities have come to CDLP.

     CDLP can save by presenting speakers via DVD to avoid travel expenses. Rest assured, we will never have a totally DVD program but some topics (such as: What to Tell Your Client About Sex Offender Registration) can be taught about as well via DVD as in person. CDLP can save by cutting back on food and beverages on breaks and by asking course directors to double as speakers.

          These changes don’t have to affect the quality of our programs. We still have the most talented speakers in Texas at our seminars. We still offer the best Criminal Law CLE for the best price in the state. I’ve been a TCDLA member for more years than I care to admit. We are a tough bunch and don’t need $15 cinnamon buns at our breaks to practice good law. It’s going to be a leaner, but perhaps better, year for CDLP CLE.

Forced Medication in Texas: FAQs

The recent implementation of forced medication orders in Texas, in combination with highly publicized trials that have highlighted the competency restoration process, have left many in both the legal and non-legal communities with questions concerning forced medication orders. This article is an attempt to answer some of these questions with respect to the forced medication process as it is conducted in Texas.

1. Is an order for forced medication beneficial to the client?

Depending on the client and the facts involved, most criminal defense attorneys are of two minds in regards to encouraging or forcing clients to take psychoactive medication. The examples below illustrate the conflict.

The first scenario involves a Class A Misdemeanor. Joseph is charged with Resisting Arrest. The most he can spend in jail is one year. Joseph has been found incompetent to stand trial under Chapter 46B of the Texas Code of Criminal Procedure. There is a long wait for a bed at a state mental hospital—perhaps as long as four months. Joseph’s lawyer would like for him to take medication so he can more quickly be restored to competency and they can dispose of his case and send him home. His lawyer sees this as being in his client’s best interest.

The second scenario involves a First Degree Felony. John is charged with Murder. His risk exposure is life in prison. He has been found incompetent to stand trial under Chapter 46B. There is a long wait for a bed at a state mental hospital—perhaps as long as four months. John’s lawyer does not want him to take medication so he can more quickly be restored to competency because that would mean his case would be tried sooner and he would likely be sentenced to life in prison. His lawyer does not see how this could be in his client’s best interest.

2. Is forcefully medicating a defendant to restore competency unconstitutional?

In Sell v. United States the Supreme Court addressed the issue of whether a defendant may be forcefully medicated in order to restore competency. The Court held that the government involuntarily administering medication to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial does not violate the Constitution.1 The Court stipulated that in order for medications to be administered, the treatment must be medically appropriate, substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking into account less intrusive alternatives, necessary to significantly further important governmental interests.2 However, before an order for forced medication is issued, a court should ordinarily determine whether the government seeks or has sought an order of forced medication in a civil proceeding.3 The Court specifically detailed the above factors that must be considered before issuing a forced medication order after a civil proceeding has been held.4

First, a court must find that an order for forced medication involves important governmental interests.5 The Court held that bringing to trial an individual accused of a serious crime is an important governmental interest.6 Second, a court must find that involuntary medication of the individual will significantly further state interests.7 Medications must be substantially likely to render a defendant competent to stand trial and must be substantially unlikely to have side effects that will interfere with the defendant’s ability to assist counsel in conducting a trial defense.8 Third, a court must conclude that involuntary medication is necessary to further state interests.9 Thus, the court must find that there are not any alternative less intrusive treatments that will achieve the same results.10 Finally, a court must find that administration of the drugs is medically appropriate.11 This means the medication is in the patient’s best medical interest in light of his medical condition.12

3. How has Texas implemented forced medication laws?

In response to variations and inconsistencies in competency evaluations, in 2001 the Texas Legislature formed a task force, led by Senator Robert Duncan and former Representative Patty Gray, to review the competency evaluation procedure.13 In 2003, the Texas Legislature enacted Senator Duncan’s Senate Bill 1057, which created Chapter 46B of the Texas Code of Criminal Procedure.14 Included in this new chapter was Article 46B.086, which addressed the situation that occurs when a defendant who had been restored refuses medication after restoration.15 Article 46B.086 established a procedure to allow a criminal court to issue an order for the defendant to be compelled to take medications to maintain competency and avoid decompensation while awaiting further criminal proceedings.16

After Chapter 46B was enacted the Supreme Court of the United States decided Sell v. United States. To square the Texas forced medication procedure with the Court’s decision, in 2005 the Texas Legislature passed Senate Bill 465, which modified Article 46.B.086 to include a “threshold” medication hearing under §574.106 of the Texas Health and Safety Code.17 Thus, a §574.106 hearing must be held first, and if a defendant has not met the criteria under this section, then a hearing under Article 46B.086 may be held.18 In 2007, the Texas Legislature expanded Article 46B.086 to include defendants who may be participating in outpatient programs.19

In 2009, the Texas Legislature addressed a large population of incompetent defendants, those who have been found incompetent but are awaiting transfer to competency restoration treatment facilities.20 Representative Jose Menendez’s House Bill 1223 amended both §574.106 of the Texas Health and Safety Code and Article 46B.086 of the Texas Code of Criminal Procedure to allow defendants who have been adjudicated incompetent and have remained in a correctional facility for 72 hours awaiting transfer to competency restoration treatment facilities to be forcefully medicated.21

4. What exactly is the process that must be followed in order to have a forced medication order issued in Texas?

Beginning with §574.106 of the Texas Health and Safety Code, a court may issue an order to a defendant who is under court order to receive mental health services, or is in custody awaiting trial in a criminal proceeding and was ordered to receive inpatient mental health services in the prior six months.22 A court may only issue an order for such a defendant if the defendant lacks the capacity to make a decision regarding the administration of medication, or the defendant was ordered to receive inpatient mental health services by a criminal court and the defendant is a danger to self or others. This applies to defendants in an inpatient mental health facility or a correctional facility in which the defendant has been waiting in excess of 72 hours for transfer to competency restoration.23 In any case the medication must be in the best interest of the defendant.24

If the above §574.106 conditions are not satisfied, then a court may pursue a forced medication order under Article 46B.086 of the Texas Code of Criminal Procedure. Article 46B.086 applies to defendants determined to be incompetent who remain in a correctional facility in excess of 72 hours awaiting transfer to competency restoration, are committed to an inpatient competency restoration program, or are confined in a correctional facility awaiting further criminal proceedings.25 In any of the above situations, the defendant must have a continuity of care plan that requires the defendant to take medication and the defendant must be refusing to take such medication.26 The requirement of a continuity of care plan generally limits these types of hearings to urban counties who have full-time psychiatrists on staff, although an outside contracted psychiatrist may be used as well. Texas’ rural counties seldom can afford this type of service and cannot guarantee “continuity of care” for their incompetent inmates.

For such an order to be issued it must be supported by the testimony of two physicians, one of whom is prescribing the medication under the defendant’s continuity of care plan, and the court has found by clear and convincing evidence that:

1.the prescribed medication is medically appropriate, is in the best medical interest of the defendant, and does not pre­sent side effects that cause harm to the defendant that are greater than the medical benefit to the defendant;

2.the state has a clear and compelling interest in the defendant obtaining and maintaining competency to stand trial;

3.no other less invasive means of obtaining and maintaining the defendant’s competency exists; and

4.the prescribed medication will not unduly prejudice the defendant’s rights or use of defensive theories at trial.27

A motion to compel medication under Article 46B.086 must be held no later than the fifteenth day after a judge has issued an order stating the defendant does not meet the criteria for forced medication under §574.106 of the Texas Health and Safety Code, with the exception that outpatient treatment programs may have a hearing held at any time.28

5. Why are there two different statutes and possibly two different courts available when issuing a forced medication order in Texas?

Civil courts have traditionally been the courts to determine if a defendant should be involuntarily medicated. Situations in which a civil court may issue a forced medication order include when a defendant is a danger to self or others, when the defendant lacks the capacity to make a decision as to whether or not to take medication, and when the medication is in the best interest of the defendant.29 If an order for forced medication has been issued on the above grounds, typically the need to issue an order for forced medication to restore competency is not present.30 If an order for forced medication has been denied because a defendant does not fit into any of the above listed situations, the reasoning behind the denial of an order in a civil proceeding may aid the forced medication determination for competency restoration in a criminal proceeding.31 For these reasons, the Supreme Court has held that a criminal court conducting a criminal proceeding concerning forced medication for competency restoration should ordinarily determine if a civil proceeding has first been held, and if not why.32 Article 46B.086 of the Texas Code of Criminal Procedure includes section (a)(1), which stipulates a defendant must first be found not to meet the criteria of the civil court §574.106 proceeding.33 This ensures that a civil proceeding has occurred before a forced medication hearing in a criminal court is initiated, following Supreme Court precedent and judicial norms of deferring to civil courts when making the forced medication determination.

6. How is the process of obtaining a forced medication order initiated in a correctional facility?

In Travis County at Del Valle Correctional Facility, where this writer practices, a treatment team reviews inmates on a weekly basis who are incompetent, lack capacity, and are on the writ list waiting for competency restoration.34 An inmate must be found to be incompetent and be found not to have capacity to make decisions regarding the administration of medication.35 If an inmate is found to be incompetent, but found to have the capacity to refuse medication, then a forced medication order will not be initiated.36 The treatment team reviewing inmates includes the unit counselor, the correctional sergeant, a doctor, the nursing director, and the social services specialist.37 In their weekly discussions, the treatment team identifies incompetent inmates who lack capacity or inmates who have overtly demonstrated they are a danger to self or others and who are refusing to take their medication.38 Such inmates are informed that a forced medication order may be initiated if they do not voluntarily take medication.39 If the inmate wishes to avoid a forced medication order, they must not only agree to take medications but must also demonstrate that they will take the medication.40 If the inmate does not agree to voluntarily take medication, or is unable to demonstrate that they will take the medication, then an application for forced medication is submitted to the probate court.41 Since the beginning of the forced medication pro­cess in Travis County in December 2010 through the middle of June 2011, 15 Travis County inmates have had forced medication orders issued and have consequently been given medications involuntarily.42 Procedures in other Texas jurisdictions are similar. When an inmate is ordered to take “forced medication,” it can mean literally that. In Travis County, inmates who refuse can be held down and forcibly administered a shot. Fortunately, this procedure is seldom necessary.

7. How long may an order for forced medication last?

House Bill 748 of the 2011 Texas Regular Legislative Session amends both the Texas Code of Criminal Procedure and the Texas Health and Safety Code concerning time credits, maximum periods of confinement, the mandatory dismissal of a misdemeanor, and the duration of a forced medication order. Article 46B.009 governing time credits now stipulates that a court sentencing a defendant convicted of a criminal offense must credit to the term of the defendant’s sentence any period of confinement that occurs pending a determination of the defendant’s competency to stand trial.43 Additionally, a court must credit any period of confinement that occurs between the date of any initial determination of the defendant’s incompetency and the date the defendant is transported to jail following a final judicial determination that the defendant has been restored to competency.44

Article 46.B.0095 concerning the maximum period of commitment or outpatient treatment program participation now states that a defendant may not be committed to an inpatient facility, ordered to participate in an outpatient treatment program, or subjected to both inpatient and outpatient treatment for a cumulative period that exceeds the maximum term provided by law for the offense for which the defendant was to be tried.45 The exception being that if the defendant is charged with a misdemeanor and has been ordered only to participate in an outpatient treatment program, then the maximum period of restoration is two years.46 On expiration of the maximum restoration period the inpatient facility or outpatient treatment program provider must assess the defendant to determine if civil proceedings are appropriate.47 The defendant may be confined for an additional period in a mental hospital or other inpatient facility or ordered to participate for an additional period in an outpatient treatment program pursuant to civil commitment proceedings.48

The cumulative period begins on the date the initial order of commitment or initial order for outpatient treatment program participation is entered.49 The period includes any time the defendant is confined in a correctional facility while awaiting transfer to an inpatient facility, released on bail to participate in an outpatient treatment program, or is involved in a criminal trial following any temporary restoration of the defendant’s competency to stand trial.50 The court may credit to the cumulative period any time that a defendant, following arrest for the offense for which the defendant was to be tried, is confined in a correctional facility before the initial order of commitment or outpatient treatment program participation is entered.51 Additionally, the court may credit any good conduct time the defendant has been granted under Article 42.032 in relation to the defendant’s confinement.52

Article 46B.010 concerning the mandatory dismissal of misdemeanor charges now states that if a court orders that a defendant charged with a misdemeanor punishable by confinement be committed to a mental hospital, inpatient facility, or outpatient treatment program, and the defendant is not tried before expiration of the maximum period of restoration, on the motion of the attorney representing the state the court shall dismiss the charge.53 The statute now authorizes on the motion of the attorney representing the defendant the court shall set the matter to be heard not later than the tenth day after the date of filing the motion and dismiss the charge on a finding that the defendant was not tried before the expiration of the maximum period of restoration.54

Finally, §574.110(b) of the Texas Health and Safety Code now allows for an order issuing forced medication concerning a defendant who has returned to a correctional facility awaiting criminal proceedings to continue until the 180th day after the date the defendant was returned to the correctional facility, the date the defendant is acquitted, is convicted, or enters a plea of guilty, or the date on which the charges in the case is dismissed.55 Whichever one of the events listed above takes place the earliest is the point in time in which the order has expired.56 House Bill 748 will take effect on September 1, 2011.57

8. How may a court determine if medication is in the best interest of a defendant as mandated by §574.106 of the Texas Health and Safety Code?

When determining whether medication is in the best interest of the defendant, a court shall consider the defendant’s expressed preferences regarding treatment; the defendant’s religious beliefs; the risks and benefits, from the perspective of the defendant, of taking psychoactive medication; the consequences to the defendant if the psychoactive medication is not administered; the prognosis for the defendant if the defendant is treated with medication; alternative less intrusive treatments that are likely to produce the same results as treatment with medication; and less intrusive treatments likely to secure the defendant’s agreement to take the psychoactive medication.58

9. How may a court determine if a defendant is a danger to self or others as describe in §574.106 of the Texas Health and Safety Code?

When determining whether a defendant presents a danger to self or others, the court shall consider an assessment of the defendant’s present mental condition; whether the defendant has inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm to the defendant’s self or to another while in an inpatient mental health facility; and whether the defendant, in the six months proceeding the date the defendant was placed in the facility, has inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm to another that resulted in the defendant being placed in the facility.59

10. What constitutes a “serious crime” as described in Sell v. United States?

A serious crime is one in which a defendant may be imprisoned for more than six months.60 Therefore, under Sell, arguably an order for forced medication to restore competency to stand trial may not be issued if the possible sentence the defendant may receive is less than six months.

11. My client says he has been forcefully medicated, does that mean a forced medication order has been issued?

Not necessarily. Under §576.025 of the Texas Health and Safety Code, a physician at a correctional facility may administer psychoactive medication to an inmate involuntarily if the inmate is having a medication-related emergency.61 A medication-related emergency is a situation in which it is necessary to administer medication to prevent an inmate from harming self or others.62 Specifically, the inmate must face imminent probable death or substantial harm because the inmate is continually threatening or attempting to commit suicide or serious bodily harm, or the inmate’s behavior indicates that he is unable to satisfy the basic needs of nourishment, essential medical care, or self-protection.63 Additionally, a medication-related emergency includes situations in which the inmate’s behavior places another in imminent physical or emotional harm because of threats, attempts, or other acts that the inmate overtly or continually makes.64

If a physician does choose to administer medication involuntary due to a medication-related emergency, then the physician must follow several guidelines. First, the physician must document the necessity of the order and that the physician has evaluated but rejected other less intrusive forms of treatment.65 Second, the treatment must be provided in a manner that is consistent with clinical standards, and that is the least restrictive to the inmate’s liberty as possible.66 This process under §576.025 of the Health and Safety Code does not require a formal hearing to be heard by a judge, nor does it require the correctional facility to notify the inmate’s lawyer.

Conclusion

The issue of “forced medication” in criminal cases for incompetent defendants is fairly new to Texas but one that will be in the forefront of criminal law now and in the future. Although this article dealt exclusively with state law, the appellate decision in July 2011 by a three-judge panel of the Ninth Circuit Court of Appeals in Jared Loughner’s case will have an impact on how cases are handled in Texas and throughout the country.67 Defense attorneys who handle these cases should be aware of changes in the law as well as local custom.

Notes

1. Sell v. United States, 589 U.S. 166, 179 (2003).

2. Id.

3. Id. at 183.

4. Id. at 180.

5. Id.

6. Id.

7. Id.

8. Id.

9. Id.

10. Id.

11. Id.

12. Id.

13. Brian D. Shannon, Prescribing a Balance: The Texas Legislative Responses to Sell v. United States, 41 St. Mary’s Law Journal, 309, 319 (2010).

14. Id. at 318–19.

15. Id. at 320–21.

16. Id. at 321, 323–24.

17. Id. at 327–28.

18. Id. at 333–34.

19. Id. at 336.

20. Id. at 337–39.

21. Id. at 341–46.

22. Tex. Health & Safety Code Ann. §574.106(a) (West 2009).

23. Id. §574.106 (a-1).

24. Id.

25. Tex. Code Crim. Proc. Ann. art. 46B.086(a) (West 2009).

26. Id. 46B.086(b).

27. Id. 46B.086(d) & 46B.086(e).

28. Id. 46B.086(b).

29. Sell, 589 U.S. at 182.

30. Id. at 183.

31. Id.

32. Id.

33. Tex. Code Crim. Proc. Ann. art. 46B.086(a)(4) (West 2009).

34. Interview with Jeff Futrell, Soc. Serv. Spec., Del Valle Corr. Facility, in Austin, Tex. (June 29, 2011).

35. Id.

36. Id.

37. Id.

38. Id.

39. Id.

40. Id.

41. Id.

42. Id.

43. Tex. H.B. 748, 2011 Leg., 82d Reg. Sess. (Tex. 2011).

44. Tex. H.B. 748.

45. Tex. H.B. 748.

46. Tex. H.B. 748.

47. Tex. H.B. 748.

48. Tex. H.B. 748.

49. Tex. H.B. 748.

50. Tex. H.B. 748.

51. Tex. H.B. 748.

52. Tex. H.B. 748.

53. Tex. H.B. 748.

54. Tex. H.B. 748.

55. Tex. H.B. 748.

56. Tex. H.B. 748.

57. Tex. H.B. 748.

58. Tex. Health & Safety Code Ann. §574.106(b) (West 2009).

59. Tex. Health & Safety Code Ann. §574.1065 (West 2009).

60. See, e.g., Baldwin v. New York, 399 U.S. 66, 69–71 (1970); Ex parte Werblud, 536 S.W. 2d 542, 547 (Tex. 1976).

61. Tex. Health & Safety Code Ann. §576.025(A)(i) (West 2005).

62. Tex. Health & Safety Code Ann. §574.101(2) (West 1993).

63. Id. §574.101(2)(A)(i) & §574.101(2)(A)(ii).

64. Id. §574.101(2)(B).

65. Tex. Health & Safety Code Ann. §576.025(F)(1) (West 2005).

66. Id. §576.025 (F)(2).

67. United States v. Loughner, No. 11-10339, 2011 WL 2694294, at *2, (9th Cir. July 12, 2011).

FAQs about 46B Competency

When should you ask for a competency evaluation?

Competency should be addressed at the earliest possible stage of the proceedings where there is evidence1 to “suggest” that competency might be lacking.2 If not suggested by defense counsel, a competency examination may be requested by the prosecution or the court on its own motion.3 Once the request has been made, the court will conduct an informal inquiry to determine if there is “some evidence” the defendant is incompetent to stand trial.4

If the issue of competency was not apparent before trial, it may nonetheless be raised subsequent to the trial on the merits.5 More specifically, it may be raised at any time before the “sentence is pronounced.”6 If raised after the return of the verdict, “the court shall make the determination as soon as reasonably possible after the return.”7 However, the issue of competency is moot if a verdict of not guilty is returned.8

It is advantageous to defense counsel and the client to raise the competency issue as soon as possible. First, the prosecution may dismiss the charges against the defendant, regardless of a finding of incompetency.9 Once dismissed, if the court feels there is evidence to support a finding of incompetency, the court may transfer the defendant to civil commitment proceedings (more in-depth discussion to follow).10 Second, a client deemed incompetent might be more likely to take medication in order to become competent and not continue to languish in jail.

Furthermore, once the suggestion of incompetency is made by either party and an informal inquiry has been held by the court supporting incompetency, the court orders an expert examination to make the final determination as to the defendant’s competency to stand trial.11 While a jury trial, to determine a defendant’s incompetency to stand trial is not required; it may nevertheless be requested by either party or the court upon its own motion.12 However, an interlocutory appeal, as to the defendant’s incompetency to stand trial is barred by the rules.13

Who can perform a competency evaluation?

The court may appoint an expert when there has been a suggestion as to the defendant’s incompetency, either to examine the defendant or testify.14 However, if there is evidence to support a finding of incompetency, the court must appoint an expert to examine or testify as to the defendant’s incompetence.15 This expert may not also be involved in the defendant’s treatment.16 If there exists evidence to support a finding of incompetency, the court must appoint an expert, whether it be a psychologist or psychiatrist employed by the local mental health or retardation authority;17 an expert chosen by the defendant;18 or another appointed by the court.19

The code specifically delineates the qualifications the aforementioned experts must have.20 They include being a physician or psychologist with a doctoral degree, licensed in this state, and certification by the American Board of Psychiatry and Neurology “with added or special qualifications in forensic psychiatry” or American Board of Professional Psychology in forensic psychology.21 If the expert is not board certified, then he or she must have “at least 24 hours of specialized forensic training relating to incompetency or insanity evaluations” or at least 5 years’ experience before January 1, 2004, in performing criminal forensic evaluations for courts and at least 8 hours of continuing education relating to forensic evaluations (completed in the 12 months preceding the appointment).22 In addition, regardless of any board certification, the expert must have completed at least 6 hours of continuing education courses in forensic psychiatry or psychology in the preceding 24 months.23 If an expert does not fit into the criteria above, as long as there are some exigent circumstances based on the expert’s specialized training or experience he may qualify.24 As a practical matter, most counties have an approved list of PhD psychologists and MD psychiatrists that they will appoint to do a competency examination.

How is competency different from Not Guilty by Reason of Insanity (NGRI)?

Competency is a determination as to the defendant’s ability to stand trial. This evaluation focuses on the defendant’s present ability to consult with their attorney and understand the proceedings against them.25 Competency is not a defense or excuse for the crime committed; however, it acts as a stay to the proceedings.26

Insanity is an affirmative defense that acts as an acquittal for the defendant.27 The defense is focused on the mental state of the defendant at the time of the incident.28 In addition, the insanity defense uses the term “mental disease or defect” and “does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”29

Where will my client go if found incompetent?

Once a determination of incompetency has been made by the expert, assuming the determination is uncontested,30 the code lists two options: commitment to a facility or release on bail to an outpatient facility.

Release on bail is subject to many conditions and focuses on ensuring safety for the community and effective mental health treatment for the defendant, with the specific objective that the client regain competency (and not necessarily be cured of the mental illness).31 Bail is available for felony cases, but is mandated for misdemeanor cases—where the defendant “may be safely treated on an outpatient basis and there is room available at an outpatient facility.”32 The treatment at the outpatient facility will not exceed 120 days.33

The court will not rest on counsel or defendant’s word alone as to the defendant’s ability and willingness to complete an outpatient treatment program. The court must receive a “comprehensive treatment plan” that represents the treatment for competency restoration and identifies the treatment provider.34 In addition, the court can require the defendant’s outpatient treatment to be administered by a community center or any other entity that provides outpatient restoration treatment.35 Also, the court can prescribe the care or treatment to be utilized, including medication.36

While outpatient treatment is desirable, there is limited space, and many persons who are incompetent to be tried will probably not fit the criteria for outpatient care. Also, if the defendant is unsuccessful at an outpatient treatment facility, it only delays an admission into a hospital. As the outpatient treatment order of the court will not exceed 120 days, neither will the commitment to a facility.37 However, there is a one-time extension of 60 days for a committed defendant who has not regained competency.38

Can they go to any psychiatric hospital?

No. The defendant will be ordered to a forensic facility based on his or her offense. For non-violent offenses,39 including assault, and offenses where an “affirmative finding” of the use or exhibit of a deadly weapon40 has not been made, the defendant will be committed to a “mental health facility or residential care facility determined to be appropriate by the local mental health authority or local mental retardation authority.41

Violent offenses and any offense in which a deadly weapon was used or exhibited will see the defendant being committed to a “maximum security unit of any facility designated by the Department” of State Health Services, “agency of the United States operating a mental hospital, or to a Department of Veterans Affairs hospital.”42 For instance, the North Texas State Hospital, Vernon campus, currently serves as the main mental health facility in Texas for violent offenders.

Can any doctor treat them?

The facility in which the defendant was committed or the outpatient treatment program, if the defendant was released on bail, will treat the defendant.43 Other treatment providers are not necessarily provided for in the code, but remain an option.44

Can my client bond out of jail if there is a writ pending?

The writ pending would be the order of commitment to a mental health facility or residential care facility based upon the determination that the defendant is incompetent to stand trial.45 Given the limited space of state hospitals, writs can remain pending for up to 120 days or more. The simplest answer is that your client cannot bond out of jail if there is a writ pending. The code only presents two options upon a finding of incompetency: commitment or release on bail.46 Once the court has gone the route of commitment, release on bail is no longer an option. In any event, it would behoove counsel in any county to inquire into their local policy respecting this issue.

How long will they wait in jail?

Texas is the second most populous state in the country, but almost dead last in terms of mental health funding—49th.47 In 2005, there were 12.1 psychiatric beds per 100,000 people.48 To meet the minimum standards of treatment, there would need to be more than 11,000 additional beds.49 The Texas State Department of Health Services intends to cut an additional 183 psychiatric beds, or 12 percent of total capacity, when the legislature convenes in 2011.50 Therefore, depending on your county, the wait could be anywhere from 30 days to 120 days or more.

Are any outpatient programs available?

If your client is released on bail based upon a determination that he or she is incompetent to stand trial, the court will require the defendant to participate in an outpatient treatment program.51 The code authorizes the outpatient treatment program to be administered by either a community center or any other entity “that provides outpatient competency restoration services.”52

Most likely, the outpatient treatment program will be administered by the local mental health/mental retardation authority. For instance, in Austin the authority is Austin Travis County Integral Care, and they operate a Community Competency Restoration Program (CCRP).53

What if my client “clears up” while waiting for a bed at a forensic hospital?

Due to the long wait for a state hospital bed in any county in Texas, and the lack of outpatient programs that will fit most client’s needs, it is possible that a defendant will have regained competency while in jail. However, this result is extremely unlikely if the defendant is incarcerated and not receiving or taking medication. The code allows for the redetermination of competency at any time.54 The defense, prosecution, or the court on its own motion may make an inquiry into restoration,55 as well as moving the court to determine that the defendant has been restored to competency.56 Affidavits may accompany the restoration motion,57 in addition to a request to appoint a “disinterested” expert.58

In addition to the parties and the court making an inquiry into restoration, a mental health or residential care facility and an outpatient treatment provider may do the same.59 They may also request the court to determine that the defendant has been restored to competency, along with an accompanying written statement of their opinion of the defendant’s competency.60

If both parties and the court agree that the defendant has been restored to competency, the criminal court proceedings will resume.61 However, if contested, the court will hold a hearing, either on the request of the head of a facility or outpatient treatment provider,62 and on its own motion or on motion by either party if “any supporting material establishes good reason to believe the defendant may have been restored to competency.”63 In addition, the court or either counsel may make a motion to have a jury determine the outcome of the hearing.64 Lastly, incompetency is presumed at the hearing,65 unless the head of the facility or outpatient treatment provider has provided an opinion that the defendant has regained competency.66

Thereafter, if the redetermination of the defendant’s competency has been successful, the criminal proceedings are resumed.67 However, if a defendant remains incompetent to stand trial, he or she will continue their commitment at a facility or outpatient treatment program.68 Once a redetermination of competency has been made and the defendant remains incompetent, any subsequent redetermination of competency motion or request filed before the 91st day after the date of a previous redetermination must be accompanied by an explanation supporting the belief that the defendant has regained competency.69

What if my client will not take medication while in jail or in commitment?

Often, depending on the severity of your client’s mental illness, your client will not regain competency without medication. You will have a difficult time seeking an order for a re-evaluation if your client refuses medication. Those clients who have been required to take psychoactive medications as a result of their continuity of care plan with an inpatient or outpatient treatment provider, and have been found to not meet the criteria of court-ordered administration of psychoactive medications under the Health and Safety Code,70 may be eligible for court-ordered medications under the Criminal Code.71 Although, a client released on bail would not be required to have the hearing under the aforementioned Health & Safety Code.72

Once a hearing under the Health & Safety Code has found the client to not be a danger to self or others, then the court will make its own findings, by clear and convincing evidence, that the medication is medically appropriate (weighing harm versus benefit); the state has a clear and compelling interest in defendant obtaining competency; no other less-invasive means is available; and the prescribed medication will not undermine defendant’s use of defensive theories at trial.73 Lastly, the court will require the testimony of two physicians—one who prescribed the medication (either correctional facility or outpatient treatment program) and another who is not involved in the proceedings against the defendant.74

What if my client remains incompetent throughout the proceedings against them?

If your client remains incompetent, whether they have been committed or released on bail to an outpatient treatment provider, he or she cannot be ordered to participate in either of those two options for a period that exceeds the maximum term provided by law for the offense charged.75 Any additional period of confinement must be pursuant to civil commitment proceedings.76 Civil commitment proceedings depend on whether the charges have been dismissed.77

If your client is a person with a mental illness, the court must conduct a hearing to determine whether court-ordered mental health services are appropriate.78 The criminal court where the charges remain pending will conduct the civil commitment proceedings pursuant to the Health and Safety Code.79 To receive mental health services by court order, the court must find by clear and convincing evidence: that your client is mentally ill; and that as a result of their mental illness is likely to cause serious harm to self or others, or “is suffering severe and abnormal mental, emotional, or physical distress” that prevents the person from living independently and making a rational decision for treatment.80

If court-ordered mental health services are appropriate, the court will either make a temporary81 or extended82 mental health services determination. Temporary mental health services will only be ordered if there is clear and convincing evidence that mental health services are available for the client; the illness is “severe and persistent”; the client will continue to suffer abnormal stress if not treated; the client shows an inability to function independently without court-ordered mental health services; and the client is unable “to participate in outpatient treatment services effectively and voluntarily.”83 The temporary court-ordered mental health services may be inpatient or outpatient, and will not exceed 90 days.84

While temporary court-ordered mental health services seem arduous, extended is that much more. In addition to meeting the basic criteria established in paragraph two and three of this section, the client’s condition must be expected to continue for more than 90 days and the client has received court-ordered inpatient mental health services “for at least 60 consecutive days during the preceding 12 months.”85 But, this should often be the case under 46B, given that the defendant has likely just received 180 days of inpatient treatment, yet remains incompetent to stand trial.

An extended civil commitment will not last longer or shorter than 12 months.86

Finally, if the charges have been dismissed and there is evidence to support a finding of your client’s mental illness or retardation, the court must “enter an order transferring the defendant to the appropriate court for civil commitment proceedings.”87

Special thanks to Ryan Mosler Esq. and Brian D. Shannon, Professor of Law, Texas Tech.

For more information on any of the issues raised in this article, please consult, Brian D. Shannon & Daniel H. Benson, Texas Criminal Procedure and the Offender with Mental Illness: An Analysis and Guide (2008), available at http://www.namitexas.org/resources/nami_tcp_guide2008.pdf.

Notes

1. Tex. Code of Crim. Proc. § 46B.003 (a) (2010), evidence that the person cannot consult with attorney or understand the proceedings against them.

2. Id. § 46B.004 (a).

3. Id. at (b).

4. Id. at (c).

5. Id., § 46B.005 (d).

6. Id.

7. Id.

8. Id.

9. Id., § 46B.004 (e).

10. Id. See Tex. Code of Crim. Proc. § 46B.151 (2010) for civil commitment proceedings.

11. Id., § 46B.005 (a).

12. Id., § 46B.005 (c).

13. Id., § 46B.011.

14. Id., § 46B.021 (a).

15. Id. at (b).

16. Id. at (c).

17. Id. at (e).

18. Id. at (f).

19. Id. at (a).

20. Id. § 46B.022

21. Tex. Code of Crim. Proc. § 46B.022(a) (2010).

22. Id.

23. Id. at (b).

24. Id. at (c).

25. Id., § 46B.003(a).

26. Id., § 46B.004(d).

27. Tex. Code of Crim. Proc. § 46C.155(a) (2010).

28. Tex. Penal Code § 8.01(a) (2010).

29. Id. at (b).

30. Id., § 46B.054.

31. Id., § 46B.072(a).

32. Id. at (1) & (2).

33. Id. at (b).

34. Id. at (c).

35. Id. at (d).

36. Id.

37. Id., § 46B.073(b).

38. Id. § 46B.080.

39. Any offense not listed in Tex. Code of Crim. Proc. § 17.032(a) (2010) except (a)(6).

40. Tex. Code of Crim. Proc. § 42.12 3g(a)(2) (2010).

41. Tex. Code of Crim. Proc. § 46B.073(d) (2010).

42. Id. at (c).

43. Id., § 46B.077.

44. Id., § 46B.111, for the appointment of disinterested experts; and id., § 46B.086 (d), for testimony of a physician not involved in the defendant’s proceedings for use in the determination of court-ordered medications.

45. Id., § 46B.073.

46. Id., § 46B.071.

47. L. Aron, R. Honberg, K. Duckworth et al., Grading the States 2009: A Report on America’s Health Care System for Adults with Serious Mental Illness 143 (2009), available at http://www.nami.org (follow “Grading the States” hyperlink, then follow “Full Report” hyperlink).

48. E. Torrey, K. Entsminger, J. Geller et al., The Shortage of Public Hospital Beds for Mentally Ill Persons 16 (2006) http://nami.beardog.net/AdvHTML_Upload/TACShortageofBedsStudywithtables.pdf .

49. See supra note 47, at 18.

50. Lillian Ortiz, “Mental health cuts could be disastrous,” Houston Chronicle, http://www.chron.com/disp/story.mpl/editorial/outlook/7123337.html (last visited Oct. 11, 2010).

51. Tex. Code of Crim. Proc. § 46B.072 (2010).

52. Id. at (d)(1).

53. Austin Travis County Integral Care, http://www.integralcare.org/?nd=ccrp (last visited Oct. 11, 2010).

54. Tex. Code of Crim. Proc. § 46B.108(a) (2010).

55. Id. at (b).

56. Id § 46B.110.

57. Id. at (b).

58. Id § 46B.111.

59. Id § 46B.108(b).

60. Id., § 46B.109.

61. Id., § 46B.112.

62. Id., § 46B.113 (a).

63. Id. at (b).

64. Id. at (c).

65. Id. at (e) and thereafter, incompetency is presumed at the hearing unless refuted by a preponderance of the evidence.

66. Id. at (d) and thereafter, competency is presumed at the hearing unless refuted by a preponderance of the evidence.

67. Id., § 46B.116.

68. Id., § 46B.117.

69. Id., § 46B.115 (a).

70. Tex. Health & Safety Code § 574.106 (a) (2010); and id. at (a-1), is under court order to receive inpatient mental health services, and clear and convincing evidence, that the patient lacks capacity to make own decision regarding medication and the proposed medication is in the best interest of the patient; and the patient presents a danger to self or others in the inpatient mental health or correctional facility.

71. Id., § 46B.086.

72. Id. at (a)(4).

73. Id. at (e).

74. Id. at (d); see, generally, Brian D. Shannon, Prescribing a Balance: The Texas Legislative Responses to Sell v. United States St. Mary’s L.J. (2010), http://www.stmaryslawjournal.org/pdfs/Shannon_II.pdf (discussing the evolution of Texas’ approach to court-ordered medications).

75. Id., § 46B.0095, except if charged with a misdemeanor and ordered to participate in an outpatient treatment program, the maximum period is two years.

76. Id. at (b).

77. Id., § 46B.102, where charges remain pending; and id., § 46B.151, where charges have been dismissed.

78. Id., § 46B.102(a).

79. Tex. Health & Safety Code § 574.034–574.035 (2010).

80. Id., § 574.034(a); and id., § 574.035 (a).

81. Id. § 574.034.

82. Id., § 574.035.

83. Id., § 574.034(b).

84. Id. at (g).

85. Id., § 574.035(3) & (4).

86. Id. at (h).

87. Id., § 574.151(b).

Jeanette Kinard is Director of the Travis County Mental Health Public Defender Office in Austin, Texas. Jeanette has a Bachelor’s Degree from the University of Texas at Austin and a Law Degree from the University of Houston in Houston. A frequent speaker, statewide, on the topic of the mentally ill in the criminal justice system, Jeanette is a member of the State Bar of Texas, Austin Criminal Defense Lawyers Association (President, 1994–95 and 2004–5), Texas Criminal Defense Lawyers Association (Board of Directors, 1996–2000), National Criminal Defense Lawyers Association, and the National Legal Aid and Defender Association. She serves on the Mayor’s Mental Health Task Force, the Texas Continuity of Care Task Force, and Travis County MH Jail Diversion Committee and is a Board Member for Capacity for Justice. Jeanette, a partner at Kinard & Kinard in Austin for 17 years, is editor of Kinard’s DWI Manual. She served six years on the District 9 Grievance Committee (1992–98) and was formerly a prosecutor in Harris, Bell, and Travis counties. Jeanette is a frequent contributor to Voice for the Defense magazine.

Personality Disorders, or Why Is My Client Such a Jerk?

The interpersonal relationship between lawyer and client is colored by the lawyer’s as well as the client’s personality. Clients with personality disorders present a unique challenge. Although not a physical disorder, personality disorders alter the way people interact in the world. Two common personality disorders encountered in the criminal justice system are borderline personality disorder and antisocial personality disorder. To best serve clients diagnosed or expressing traits of either disorder, criminal defense lawyers must develop special skills to communicate effectively.

Coping with everyday stresses and maintaining meaningful interpersonal relationships is dependent upon a healthy personality.1 Personality makes up who we are as individuals; it colors our experiences, feelings, and thoughts, and it determines our perception of the world. Those diagnosed with personality disorders struggle to adapt to new situations and are often unable to form long-lasting personal relationships.2 People with personality disorders are inflexible, allow their personalities to drive their cases, and often end up sabotaging themselves—a precarious situation for both attorney and client involved in the criminal justice system. The presence of a personality disorder in a client may make it difficult for an attorney to feel comfortable and capable of serving the client’s best interest. For attorneys encountering clients with personality disorders, it is important to recognize the intricacies of each particular diagnosis while at the same time emphasizing the importance of creating a professional alliance, much like that between physician and patient.

There is little information aimed at attorneys dealing with this special population. William A. Eddy, an attorney and a psychotherapist, writes in his book, High Conflict Personalities, that “personalities drive conflict.”3 Eddy considers “high conflict personalities” to be Cluster B Personality Disorders in the Diagnostic and Statistical Manual of the American Psychiatric Association (DSM-IV-TR). There are a variety of personality disorders in the DSM-IV-TR, and to explore possible methods for working with every possible personality disorder is beyond the scope of this article. The two types of personality disorders most typically encountered in the criminal justice system are borderline personality disorder and antisocial personality disorder. Eddy goes as far as to argue that the litigation process itself encourages people with particular personality disorders because the structure of the adversarial process rewards conflict and exacerbates certain qualities of personality disorders.4

The DSM-IV-TR categorizes personality disorders as Axis II diagnoses, which identify “underlying personality disorders or maladaptive personality traits,”5 and then groups them together according to common traits shared among them. There are three lettered clusters of personality disorders: A, B, and C. Both antisocial personality disorder and borderline personality disorder are categorized in the DSM-IV-TR as Category B personality disorders, which are characterized as overly emotional or unstable personalities. The diagnostic criteria for a personality disorder require a prevalent history of particular symptoms occurring in the patient before adolescence; namely, one must express traits and symptoms in a non-transitory manner and reflect an “enduring pattern” of recognizable symptoms.6 General symptoms, according to the Mayo Clinic, include “frequent mood swings, stormy relationships, social isolation, angry outbursts, suspicion and mistrust of others, difficulty making friends, a need for instant gratification, poor impulse control, and alcohol or substance abuse.”7

As legal professionals, lawyers are not required to diagnose any client seeking legal assistance. However, it is beneficial to take the following information and use it to perceive “personality patterns” in clients. Being able to recognize, empathize, and understand those with borderline personality disorder and those with antisocial personality disorder will enable an attorney to handle these cases better and minimize potential conflicts between themselves and their clients.8

Borderline Personality Disorder

Borderline personality disorder (BPD) consists of:
deeply ingrained and maladaptive patterns of relating to others, impulsive and unpredictable behavior that is often self-destructive, lack of control of anger, intense mood shifts, identity disturbance and inconsistent self-concept, manipulation of others for short-term gain, and chronic feelings of boredom and emptiness.9

The characteristics listed above make it clear that creating and maintaining productive relationships are especially difficult for people with BPD. Issues of low self-esteem and constant fear of abandonment can lead those with BPD to view certain relationships and other people in highly idealistic terms. When those relationships or others fail them, they experience severe disappointment. Approximately 2 percent of the general population has BPD, and it is more common in women.10 Furthermore, during times of stress, people with BPD may suffer psychotic symptoms, such as hallucinations and other delusions. As a result, people with BPD have a higher tendency to injure themselves, and roughly 10 percent of people with BPD commit suicide.11

An interesting phenomena observed in people with BPD consists of the creation of emotional facts. In Stop Walking on Eggshells, author Paul T. Mason describes that phenomena:

In general, emotionally healthy people base their feelings on facts. If your dad came home drunk every night (fact) you might feel worried or concerned (feeling). If your boss complimented you on a big project (fact) you would feel proud and happy (feeling). People with BPD, however, may do the opposite. When their feelings don’t fit the facts, they may unconsciously revise the facts to fit their feelings. This may be one reason why their perspective of events is so different from yours.12

Case Study: Susan

Susan, a middle-aged female, was referred to the Travis County Mental Health Public Defender’s Office (MHPD) after being charged with criminal trespass. She had a history of self-injury, including throwing herself down the stairs at a homeless shelter when she was told that she may not be able to continue to stay there. Although she claimed to have had no criminal history, it appeared she had several previous arrests. Other agencies working alongside the MHPD described her as a “pathological liar.” Her actions and behaviors in jail even led jail staff to believe that Susan was malingering—i.e., exaggerating about the nature of her symptoms.

Susan claimed to be wheelchair-bound and to suffer paralysis in certain parts of her body due to a car accident that occurred a few years before. She also claimed she was immobile because of new injuries caused by a police officer’s use of a night stick the evening of her criminal trespass charge. However, medical experts reported that Susan was indeed able to care for herself, and that her behavior in jail was an effort to get extra attention. Susan would often take her claim of complete paralysis to the extreme, choosing to lay in her bowel movements rather than move herself to the toilet. Needless to say, she was not popular with the jail staff. When she met with an MHPD social worker, Susan stated that a jail psychiatrist had called her a “disposable human being,” and she reported feeling anxiety and depression given her current circumstances.

In the interview setting, Susan was invested and “quite informative,” although sometimes her premise of genuine cooperation drew skepticism from others. The information she gave about herself was typically unreliable, inaccurate, and sometimes completely unbelievable. She claimed to have a PhD in Psychology, said she worked as a professional musician, and even admitted to lying about having children—because she believed that “people respond to me differently if they think I have kids.” When confronted with her lies, she would reluctantly admit to them and claim that she wanted to stop, but this never proved out.

When asked to recount the facts of her criminal trespass charge, Susan claimed to have fallen and hit her head, which caused her to forget the majority of the charge. She stuck to her story of amnesia so strongly that the evaluating physician considered her failure to remember as approaching incompetence. However, after extended discussion, Susan admitted that she was “terrified of homelessness” and felt safer in jail than in returning to the streets, should her case be dismissed. Susan also threatened to commit suicide if her partner rejected her.

The MHPD was ultimately able to get Susan’s case dismissed and find placement for her in a nursing home. But working with Susan was perhaps one of the more challenging aspects of her fairly simple criminal trespass charge. Her tendency to lie, to provide unreliable information, to alienate people, and to feign injury made productive meetings difficult. Maintaining boundaries between Susan, her case, and the duties of the MHPD was fundamental in providing helpful legal service. Had boundaries not been maintained, there is little doubt that Susan would have lingered on the case load for longer than necessary, given the desire of someone with BPD to remain the center of attention.

Also, it was paramount that the staff at MHPD was able to avoid certain dramas created by Susan. For instance, when Susan claimed that a jail psychiatrist had called her a “disposable human being,” Susan placed the jail psychiatrist in an extreme category, a common occurrence by those with BPD.

Techniques

Susan’s case shows how maintaining boundaries and distancing oneself from the dramas of a person with BPD is useful in maintaining a productive working relationship. Clients with BPD ultimately fear abandonment by those close to them. Ignoring this unique need often results in attorneys having to make lengthy phone calls, faxes, and office visits to constantly reassure a client with BPD. Eddy suggests that attorneys provide “clear reassurances and limits from the beginning of the relationship” to avoid having a client with BPD feel abandoned.13 In addition to these basic tactics, there is growing support among counselors surrounding the effectiveness of a new method called “dialectal behavior therapy” (DBT) for dealing with people with BPD.14
In layman’s terms, DBT is a “comprehensive treatment approach” for helping people overcome their self-destructive behaviors, and it is specifically designed for people with BPD. DBT attempts to teach clients better ways to cope with their intense feelings and regulate their mood swings. DBT is carried out in a caring, sensitive environment where clients engage in individual therapy, a group skills training class, and skills coaching in between sessions.15 DBT is a very intensive therapy mode, and it requires the dedication of a professional counselor, but there are lessons to be gleaned from it that are directly applicable in legal advocacy:

  • Emotional Regulation. An attorney is not a counselor and should not pretend to be one, but attorneys can better their relationships with clients with BPD by remaining consistent in their communications and maintaining a calm, professional demeanor. Attorneys should never respond to a frustrating BP client with anger, or encourage a client’s own worries by becoming frustrated over inevitable legal obstacles.
  • Mindfulness. Attorneys should keep the conversations focused on the issue at hand. Delving into other personal matters of a BPD client may prove to be ineffective and damaging overall to a healthy attorney-client relationship. Also, attorneys should let BPD clients know they believe that each will feel occasionally frustrated and angry during the case. Attorneys should explain that frustration must be overcome and worked through.16
  • Distress Tolerance. One important aspect of DBT is coping skills. Attorneys can help clients with BPD by explaining to the client the nature of obstacles in the legal process as well as possible solutions. Eddy advises attorneys to “validate the person rather than criticizing the behavior, and then focus them on alternative behaviors or the next task in the case” when clients with BPD become self-destructive.17
  • Interpersonal Effectiveness. Attorneys should always treat clients with BPD with respect and patience. Some important skills include listening non-defensively, providing realistic expectations, and avoiding reinforcement of “high idealization” by balancing their praise for you.18

Antisocial Personality Disorder

Texas attorney Roy Minton provided the following definition at a criminal defense seminar: “The definition of an Antisocial Personality Disorder: Someone you have to teach that opening the door for other people is a good thing!” Unsurprisingly, the antisocial personality disorder (APD) has long been considered one of the most untreatable personality disorders.19 People diagnosed as having APD often end up hindering the legal and mental health systems because they continually relapse into mental health treatment services with little positive change.20 Compared to BPD and other disorders, APD appears to have more of a genetic link.21

In addition, APD tends to coexist with substance abuse problems as well, which exaggerate the negative symptoms of APD. The DSM-IV-TR requires that some traits central to APD diagnosis must be apparent in the patient before 15 years of age. However, diagnosis of APD must not be made until the patient is at least 18 years old. The most recognizable trait of APD is a “pervasive pattern of disregard for, and violation of, the rights of others.” A lack of empathy, callous and cynical worldview, contempt for the feelings of others, an arrogant and inflated self-image, impulsive behavior, a history of aggressive or violent behavior, and a frequent lack of concern for themselves are all symptoms of an APD client.

Case Study: Jerry

Jerry, a 30-year-old homeless man, came to the MHPD with a charge of public intoxication. Jerry claimed to have intentionally gotten himself arrested in order to get necessary medical treatment. He had a history of alcohol abuse from an early age. However, when asked if he wanted help with his alcoholism, Jerry refused any treatment and became irritable. Jerry uses alcohol to handle stress, and he is very impulsive. He stated that he “can’t sit still long enough to fill out forms” and displayed manic behaviors. He spoke rapidly and had visited the office visibly intoxicated. In a meeting with an MHPD social worker, Jerry became sexually inappropriate with the social worker and responded blankly when warned. Later, Jerry continued with his inappropriate, disruptive behavior until the social worker terminated the meeting. Jerry claimed that the social worker’s efforts “wasted his time,” and he became very agitated and difficult. Jerry also conveyed an intricate and strange reasoning for his belief in stealing from stores but not people. According to Jerry, stealing from stores should not be considered a crime.

In working with Jerry, the MHPD staff recognized that Jerry was not interested in altering his lifestyle or cooperating with case managers.

Techniques

People like Jerry with antisocial personality disorder traits are usually not receptive to receiving aid from others without somehow benefiting their own ulterior motives. Thus, attorneys working with APD clients need to recognize their inherent selfishness and work around it in order to best serve the clients’ needs without placing themselves in a precarious position.

Eddy writes, “ASPs [antisocial personalities] fear being dominated and therefore they desire to dominate and control others—it gives them a reassuring sense of power in the world.”22 In the case of Jerry, he dominated the relationship with the male social worker by engaging in sexually inappropriate behavior in order to make the social worker unable to run the meeting. Attorneys working with someone with APD should be very strict about not reinforcing manipulative and dominating behaviors, and must be “attentive to protecting themselves, physically and legally.”23 Also, attorneys should possess a healthy level of skepticism when working with people with antisocial personality disorders.

Clients with APD will use deception to reach their own ends regardless of the consequences to others. For instance, Jerry wanted to get arrested in order to get medical attention. This trait is particularly challenging for criminal defense lawyers to deal with, as client contact is the primary means of obtaining information about the case and the client may engage in self-destructive behavior during legal proceedings for short-term gains. Eddy likens clients with APD to small children who often demand instant gratification and cannot cope with any type of obstacle.24 In order to combat the potential for lies, attorneys should try to get corroborating information from other sources to verify their clients’ stories, as well as avoiding doing any favors and enforcing strict consequences for clients with APD.

Finally, clients with APD may be “predatory in their violence, which means it is planned, purposeful, and lacks emotion . . . This characteristic allows little room for negotiation or cooperation.”25 Lawyers should be aware that there is a spectrum of behavior exhibited by those with APD that not only requires care by the lawyer but also a certain level of caution.

Conclusion

The guidelines outlined in this article are in no way a substitute for a physician’s recommendations for a particular client. Rather, these are all tips designed to enhance communication between professionals working with people who have personality disorders. By utilizing patience and dedication to work with clients who may be more challenging than most, lawyers can reduce the frustrations exacerbated by the presence of a personality disorder.

Notes

1. Mental Health America, “Factsheet: Personality Disorders,” Mental Health America, http://www.nmha.org/go/information/get-info/personality-disorders
2. Ante.
3. William A. Eddy, High Conflict Personalities: Understanding and Resolving Their Costly Disputes (William A. Eddy, 2003), 1.
4. Ante, 32.
5. Ante, 13.
6. Frederick Rodgers and Michael Maniacci, eds., Antisocial Personality Disorder: A Practitioner’s Guide to Comparative Treatments (Springer Publishing Co., 2006), 5.
7. Mayo Foundation for Medical Education and Research (MFMER), “Personality Disorders,” Mayo Clinic, http://www.mayoclinic.com/health/personality-disorders/DS00562/DSECTION=symptoms.
8. Eddy, 16.
9. Robert L. Barker, The Social Work Dictionary (NASW Press, 2003), 49.
10. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Publications, 200), 708.
11. National Alliance on Mental Illness, “Borderline Personality Disorder,” NAMI, http://www.nami.org.
12. Eddy, 29.
13. Ante, 52.
14. National Institute of Mental Health, “Borderline Personality Disorder,” NIMH, http://www.nimh.nih.gov/health/publications/borderline-personality-disorder-fact-sheet/index.shtml.
15. Michael Baugh, “What is Dialectic Behavior Therapy?” DBTSF.com, http://www.dbtsf.com/what-is-DBT.htm.
16. Eddy, 54.
17. Ante, 59.
18. Ante, 75.
19. W. John Livesly, Handbook of Personality Disorders (Guilford Press, 2001), 332.
20. Rodgers, 2.
21. Eddy, 120.
22. Ante, 103.
23. Ante, 122.
24. Ante, 115.
25. Ante.

Jeanette Kinard is Director of the Travis County Mental Health Public Defender Office in Austin, Texas. A longtime criminal defense attorney, Jeanette has a bachelor’s degree from the University of Texas at Austin and a law degree from the University of Houston. She is a frequent speaker, statewide, on the topic of the mentally ill in the criminal justice system. She is a member of the State Bar of Texas, Austin Criminal Defense Lawyer’s Association (president, 1994–95 and 2004–5), Texas Criminal Defense Lawyers Association (Board of Directors, 1996–2000), National Criminal Defense Lawyers Association, and the National Legal Aid and Defender Association.