What to look for during an OSH evaluation
A few years ago I decided that attending competency and GEI evaluations at the State Hospital was so important that if an attorney in our office couldn’t make it down to Salem, the MPD section I was supervising at the time would provide an attorney. Mostly that meant that I went down to the Hospital for the evaluations. As a result, I’ve attended dozens of OSH .370 evals. One of the most common questions I’m asked is: What should I look for during an OSH evaluation? Here is my answer, which I intentionally reframe:
Your primary reasons for going to an OSH evaluation are, in order of importance:
(1) To be there for your client at what feels like a really important moment to him or her. The evaluation gets built up for the client as if it’s a test that the client must pass in order to get out of the hospital. Which isn’t entirely untrue. But it’s not true in the way that clients think of it: as an academic style test for which studying the “right” answers makes the difference. In any case, clients really take the endeavor earnestly and often become quite anxious about the experience. I’ve found that clients are almost invariably comforted by having an attorney there. It makes them feel like we’ve got their back. You’ll have a few minutes to talk to the client alone before the evaluation begins. I just use that time to BS a bit and let the client know that I’m there for them if they need me but that mostly I’m there to observe and make sure things go well.
(2) To write everything down that the client says as close to verbatim as possible. The questions the evaluator will ask are fairly standard in accordance with the OSH format, so you just need a little shorthand cue to remind you what the question was. The answers will be more convoluted, even for a client who is doing well, so verbatim is important. The real danger involved in a competency evaluation is not that something will go awry during the evaluation but that the report doesn’t match what you witnessed. For example, a really bad answer might get summarized by the evaluator in their report in a way that makes it sound much more coherent and correct. You want to be able to recognize that disparity when you’re reading the report two weeks later. It’s important because you need to make the decision for yourself whether the person is now fit to proceed. Also, you may have a legitimate motion to dismiss if the client is still unfit. That disparity might become the crux of a cross examination or an argument to the judge. On the flip side, it may be that once you sit with the person and see their evaluation you don’t have any of the same concerns that led you to raise the competency issue in the first place. There too it’s important to know when the report seems to make an answer worse than what you remember and wrote down.
(3) To talk to the evaluator. Most of the OSH evaluators are friendly and competent. They will actually appreciate it when you talk to them beforehand and tell them your particular concerns regarding the client. Often they have no information regarding why you were concerned about competency in the first place. Sometimes they have no information at all except the court order. Moreover, most of them will tell you what they’re thinking when you talk to them afterward. So you can get a feeling for which way the case is heading. Finally, it’s good to put a face to the evaluator. It’s not OSH doing the evaluation. It’s a particular psychologist. Some psychologists are good and some aren’t as good. And everyone has different theoretical orientations. It’s important to meet the actual person doing the evaluation.
(4) To augment the evaluation with a few of your own questions at the end if it seems appropriate. Make sure to politely ask the evaluator if it’s okay to ask a question or two yourself. If it’s the right time they never mind, but you have to be mindful not to interfere with the evaluation process. Twice I have turned what appeared to be passes into fails leading to a dismissal because I asked a few questions about how the client would make the decision to plead guilty or go to trial. It became immediately clear that while the clients could parrot a few answers, they couldn’t actually think about the decision at all. Some evaluators are better than others at ferreting out rational understanding and decisional capacity. Remember, clients are not fit to proceed if they can’t make the decision for themselves whether to plead guilty or go to trial. We can’t make the decision for them under the rules of professional conduct. That means the client must rationally understand the choices, weigh the options and make a genuine decision. As a general rule, the importance of rational understanding and decisional capacity are de-emphasized at the OSH evaluations in favor of factual understanding and attorney-client relationships.
(5) To help the client not answer if either (1) the client doesn’t want to answer the question or (2) it would be legally unwise for the client to do so. I’ve only had to do this a couple times. Almost all the evaluators are really sensitive to the notion that they’re there to evaluate, not to give the DA ammo. It’s worth keeping in mind that the evaluators don’t see themselves as the State’s psychologist. They’re just psychologists doing evaluations and they happen to work for the Forensic Evaluation Service at the Hospital. In fact, they also think of themselves as truly independent from the treatment team and the wards. If you treat the evaluators the way they think about themselves it makes it more likely to be true and almost invariably leads to a better evaluation. If you treat them like the state’s psychologist then there’s a danger that the evaluator will get instinctively defensive with correlatively worse results.
(6) To assist the better evaluators in the evaluation itself. Some of the evaluators will ask you to explain a concept to the client and then they’ll ask the client what they got from the explanation. I think it’s a great way to get a sense of how a client processes new information.
(7) To correct a particularly egregious mistake of law made by an evaluator. Most mistakes you’ll want to let go because it’s just not worth it. But I think it’s worth stepping in if the evaluator launches into a mini-lecture on the law that is exactly wrong. A couple particularly common mistakes: (1) there’s often a discussion of maximum sentences but the actual laws related to sentencing, including the guidelines grid, are completely ignored. It’s just plain legally wrong to tell a client he could get 5 years in prison for a level 1 C felony; (2) almost none of the evaluators understand a mental state defense because the OSH .370 materials say that “Diminished Capacity” is a plea that might get a person’s sentence reduced.