A few things to know about OSH evals
From OCDLA Library of Defense
I talk fairly regularly to my fellow attorneys about competency and GEI evaluations at the State Hospital. I've found there to be some common themes to those conversations. To wit:
- "OSH" will not be doing the evaluation. A person within the Forensic Evaluation Service (FES) at the State Hospital will be doing the evaluation. That person is likely to have a doctorate in psychology. Or perhaps an MD in psychiatry. As with any group, some people doing the evaluations are better than others. To say that OSH did the evaluation is to miss the point that a particular person with particular skills actually wrote the report and did the thinking. Some of the FES evaluators also do defense work. They are private psychologists who contract out with the FES. Drs. Dawn Clark-Plowman and Alex Milkey, for example, are excellent psychologists who are available for private evaluations at PDSC rates and they also contract out with the FES to do evaluations at the State Hospital.
- The FES is not a treatment team. In fact, they pride themselves on being independent from the wards. They have access to the charts and can speak with the treating staff in order to gather information for the evaluation. But they are not involved in treatment. Their offices are below the evaluation rooms in a different part of the Hospital than the wards.
- Competency evaluations have a very standard format. The first part gathers personal information from the defendant. Some of the questions are bland and others are potentially sensitive such as the ones about drug use, child abuse, head injuries, etc. The point is to gather information which might point to or buttress a particular diagnosis. The second part asks about a long list of potential symptoms. For each one, the defendant is asked whether he has that symptom. Like "do you ever hear messages directed at you, personally, from the television." Or "are you able to hear other people's thoughts." In addition to the list, there will also likely be some basic cognitive testing of the client. For example, counting backwards from 100 by subtracting 7s. Or, questions related to the client's awareness of his surroundings or the external world. The third part is about the client's relationship to the case and the defense attorney. Questions mostly come from a class taught on the ward called the ".370 class". The .370 class teaches people what the roles of the parties in court are, what GEI is, etc. In theory, the class is a good thing. The danger is that clients will memorize the words without ever understanding, even in a basic way, what the words mean. For example, more than once I've had clients say that "the judge is 'the boss of the court.'" That sounds good. But if they're asked what that means, they'll say "The judge is the boss of the court." Good evaluators will see through incompetence masked by short term memorization. Unfortunately, most judges will not see through it. Nor do most attorneys. So it's important for you to be aware of the possibility. The third part also inquires into the relationship between client and attorney. If the client understands perfectly the justice system but refuses to speak with his attorney because his attorney is Genghis Khan, then he may still be incompetent, despite his understanding.
- Client's should not be sent down to OSH for the .365 one day evaluation except under very rare circumstances. The defense attorney should hire a psychologist to do an evaluation. You wouldn't submit a client for a polygraph without getting a private one first. Don't do the same thing with psychological evaluations. If the client is incompetent, the court can use the private evaluation to make the determination for "treat until fit."
- It's really important for an attorney to be present at evaluations that occur at OSH. Any information given can be used against the client in court. That should be enough to get the defense attorney's presence. But it's also a really scary situation for the client. Being there, or at least appearing by phone, can build the attorney-client relationship like few other actions can. Finally, you will see and hear things that will not show up in the report and may very well provide the key to your defense.