III. Redesign competency restoration programs and processes 

Gap addressed

State-hospital inpatient competency restoration is not necessary for some or all of the competency restoration process in many cases. Although alternatives are available, they are underutilized and currently, processes for legal charge resolution and clinical care are unnecessarily conflated.

Although not every individual waiting for admission to ASH is referred from the legal system, 70% require criminal-court mandated competency restoration. These requirements put significant pressure on ASH and delay treatment and resolution of legal cases for the individuals involved. As discussed in the “Courts and Jails as Providers of Mental Health Care”, a typical ASH-based competency restoration process costs more than $75,000 and data from across the state suggest these costs often escalate even higher (e.g., $130,000). However, alternative pathways, provided in that same section, demonstrate that by separating clinical care from the legal process of competency restoration, thereby assigning care only for the duration and level clinically needed, these costs can be reduced dramatically. For example, if an individual, instead of being waitlisted in jail to get into ASH, is quickly admitted for a short private inpatient stay followed by public intensive outpatient treatment, the cost falls less than $15,000 for the episode. These alternative models have the potential to decrease costs of competency restoration millions of dollars just for the ASH Service Area. To do so, however, requires changes to the process.

Solutions

1. Engage the Judicial Commission on Mental Health to establish consistent competency standards and assessments across all courts.

Despite the increasing need for competency restoration, evidence-based assessments and approaches are inconsistently applied. Consequently, this inconsistency introduces wide variability in workflow so that results cannot be easily compared across venues; this variability also introduces inefficiencies, thereby increasing costs and producing uneven clinical and legal outcomes. Additionally, a lack of specific standards challenges interpretability of individual assessments for both the clinicians providing the service and the courts applying the results. We recommend asking the Judicial Commission on Mental Health (JCMH) to convene a workgroup to develop statewide competency standards, assessments and workflows. We would expect this work group to arrive at a consensus based upon the competency restoration literature and best practices statewide within one year, so that improved processes can be implemented during the next biennium (and before the new hospital is completed). These practices could include:

a. Improving and standardizing the screening and assessment processes for mental illness in the jails as recommended by Meadows Mental Health Policy Institute (Appendix 18).

b. Reducing the statutory time allowed for competency examination (currently 30 days) by establishing new performance targets and maximum time limits for completion of accurate and reliable evaluations of competency to stand trial (7 and 14 days, respectively). Authorizing evaluations by telehealth and tele-legal could potentially support this effort.

c. Establishing written standards and assessments for forensic evaluators, and using these standards to review their performance. The shortage in forensic psychiatrists might be addressed by determining whether formal forensic licensure is necessary for this function. An alternative might be Texas-specific certification for general psychiatrists.

d. Creating a statewide telemedicine and pharmacy network to achieve a goal of protocol-driven medication initiation, using a standard formulary, for consenting individuals within 24 hours of booking. This network would be separate from, but work collaboratively with, the pilot competency restoration team proposed in solution 3 of this section.

e. Establishing evidence-based, substance use screening and engagement programming to be delivered in jail, including the availability of evidence-based medication-assisted treatment (e.g., methadone, suboxone) to consenting individuals.

f. Establishing written standards for the performance of the application of these new standards and develop incentives to support these programs.

Other components of a standardized program would be developed by the JCMH work group. These examples simply serve to frame the type of work that is needed.

2. Establish a formal 60-day inpatient competency restoration limit.

Existing data suggest that in the vast majority of cases, competency restoration can be achieved in less than 60 days (e.g., HCPC has an average forensic length of stay of 52 days, and research suggests 3 weeks is sufficient for misdemeanants), yet the average ‘forensic’ length of stay at ASH exceeds this recommendation by more than a month (Gillis et al., 2016, WSIPP, 2013, Steadman & Callahan, 2017). As discussed previously in this report, consistent with this observation an internal study at ASH found that over 41% of admission days for individuals hospitalized for competency restoration occurred after they had been either restored or deemed not likely to restore (Appendix 8). Delays in discharge infringe on these individual’s rights to a speedy trial and place them in inpatient care that violates the standards to treat within the least restrictive setting, while incurring unnecessary costs to the state. With these thoughts in mind, we recommend the following statute changes to the competency restoration (46B) processes.

a. Once competency is restored, within 5 business days the individual will be returned to the court for adjudication. The court would, at that time, and based upon the legal charges involved:

i. Drop all charges and allow the individual to proceed to the level of care clinically determined by his or her care team, including discharge to outpatient care or continued inpatient care either by conversion to a voluntary admission or to a civil commitment, or;

ii. Release the individual on his or her own recognizance with a trial date for legal adjudication, with ongoing care determined by clinical need, or;

iii. Return the individual to jail until trial with ongoing clinical care provided by the jail based upon clinical need.

b. For individuals whose competency is not restored by 60 days, then within 5 business days, the court would:

i. Ask for a single 30-day extension (after which it must proceed to ii); and/or

ii. Drop all charges and the individual will be managed according to clinical need, or;

iii. Return the individual to jail until trial (and likely 46C proceedings) with ongoing clinical care provided by the jail based upon clinical need.

In both of these instances, the change from current procedures is that continued hospitalization and other clinical care is determined solely by clinical need rather than by legal charges. This approach places clinical and legal decisions into the venues that each properly belongs. Doing so both protects the individual’s legal rights to a fair and speedy trial while ensuring optimal clinical care in the least restrictive setting possible.

3. Create a regional competency restoration team to work across venues.

As described in the “Courts and Jails as Providers of Mental Health Care” section of this report, competency restoration is a legal process that involves educating individuals so that they can participate in their own legal defense; it is linked to clinical care in that some individuals require stabilization of their mental illness first to be able to benefit from the educational process. In current models in the ASH Service Area, these legal and clinical processes are conflated, to the detriment of both. With this in mind, we recommend any changes necessary to the 46B statutory language to support judges so they can allow competency restoration teams to work across any clinical venue (including ASH), community hospitals (as recommended in the previous section) or jail setting. The teams would be contacted and engaged whenever an individual is identified who needs competency restoration while they are being placed in the least restrictive clinical setting necessary (in some cases, this setting may be jail if they do not need inpatient care, but legally cannot be released). The team could be engaged in person or by ‘tele-legal’ means to support rural areas in which resources cannot support an in-person solution. The team would determine when competency is restored and the finding accepted by the court by statute to initiate the steps proposed previously.

One vehicle to finance these programs is SB 292. The competency restoration teams could work in tandem with existing clinical structures. For example, Integral Care in Travis County obtained funding to create a forensic assertive community treatment (FACT) team that, among its other functions, provides outpatient competency restoration and could have this new proposed team integrated into its programming. Additionally, expanding crisis capacity and interventions designed to sustain community tenure outside of ASH could reduce the need for involuntary civil commitment. More importantly, doing so might reduce reliance on ASH as a default acute care provider in cases that use involuntary civil commitment and for those people requiring extended care under Texas law. We recommend HHSC funding a pilot program to establish a regional competency restoration team and workflow within an ASH Service Area LMHA working with an academic partner.