Mental health assessment refers to the evaluation of various aspects of an individual’s psychological or mental functioning. In criminal justice contexts, mental health assessments may be required or requested for a variety of reasons, from guiding basic mental health treatment for accused or convicted individuals to answering specific legal questions such as those related to criminal responsibility. This entry introduces the topic of mental health assessment in general, provides an overview of types of mental health assessments offered in criminal justice settings, and introduces the concept of symptom validity and malingering assessment.
Mental Health
To understand the role of mental health assessments in criminal psychology, one must first have a basic understanding of mental health and mental health assessments more generally. Mental health is a term that is used broadly to refer to various aspects of an individual’s intrapersonal and interpersonal functioning. Mental health problems may reflect a variety of difficulties related to the individual’s thoughts, emotions, or behavior. Much like physical health problems, mental health problems vary widely. First, mental health problems vary on several dimensions pertaining to time, including the likely age of onset or the expected duration of the illness. For example, some mental health problems tend to begin in childhood, while others tend to begin later in life. Second, mental health problems differ with regard to the domains of human functioning that they affect and with regard to the manner in which they affect them. For instance, an individual with a psychotic disorder may demonstrate bizarre behavior in response to unusual perceptual experiences (e.g., hearing voices that are not present), while an individual with depression may experience decreased energy and motivation resulting in difficulties completing activities of daily living, and an individual with an antisocial personality disorder may engage in risky behavior that violates the rights of others (i.e., criminal activities). Third, mental health problems vary in how they are perceived by the individual (e.g., the presence or absence of insight or distress) and by others (e.g., the extent to which interpersonal interactions are impacted). It is also worth noting that there are significant individual differences in terms of the symptoms, course, and severity of impairment experienced by each person with a given mental disorder.
Common Elements of Mental Health Assessment
Some common components of mental health assessments include clinical interviews, reviews of relevant historical and file information, psychometric measures, and interviews with individuals familiar with the evaluee. Clinical interviews may cover various aspects of the evaluee’s past and present functioning, from the onset and course of the presenting complaint to developmental milestones and patterns of social interaction. Reviews of background information, including pertinent files, can corroborate information discussed in the clinical interview and provide additional information that the evaluee may not have reported. Psychometric measures include psychological tests and symptom/behavioral checklists, and they represent a structured approach to gathering assessment data. Many of these measures are associated with normative data, which allow the evaluee’s responses to be compared to those of a relevant population. For instance, an inventory of depressive symptoms might compare the evaluee’s pattern of responses to that of the community at large or patients with major depressive disorders or both. Finally, collateral interviews conducted with persons familiar with the evaluee, such as family members, friends, or other service providers, can also provide valuable information and additional perspectives on the evaluee’s mental health and behavior across different contexts. While any one assessment may not contain or require all of these elements, it is generally recommended that an assessor consider more than one source of information. Each of these techniques can provide valuable information, but combining them can increase the assessor’s confidence in the conclusions that he or she draws about an individual’s mental health and behavioral functioning.
Formal Diagnostic Systems for Mental Health Problems
Given the considerable breadth and diversity of mental health problems experienced by persons around the world, these problems have been categorized in order to facilitate efforts to understand and manage them. The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition and the International Classification of Diseases and Related Health Problems, 10th Revision are two examples of diagnostic systems that are widely studied and employed by mental health service providers. Primarily, these diagnostic systems contain disorders that were identified by observing symptoms that tend to cluster together, as opposed to illnesses that may be differentiated on the basis of a theoretical or etiological understanding of their underlying causes. While the developers of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition and other diagnostic systems tend to acknowledge that not all mental health problems fit neatly within existing categories, these systems allow for more reliable diagnosis and for more systematic and generalizable research studies.
A critical component of the formal diagnosis of mental disorders is the consideration of various biological, psychological, and social factors. While mental health service providers adhering to different theoretical orientations may disagree on the exact factors or mechanisms that underlie psychopathology (i.e., impaired mental health), it is widely accepted that obtaining a broad history from a patient is necessary to arrive at a meaningful diagnosis. Relevant factors include social development and functioning, physical health, substance and alcohol use, educational and employment functioning, criminal history, and mental health history.
The need for such broad information may be best illustrated by an example. When meeting with an individual presenting with decreased energy, impaired appetite, and difficulty sleeping, a service provider might assume that the individual is suffering from a major depressive disorder. However, these same symptoms could also be explained by any number of physical health concerns, substance use, or a normative reaction to a recent loss (e.g., job loss, death of a loved one, loss of freedom associated with incarceration). Following from the last point, another important component of effective diagnosis is the differentiation of clinically relevant impairments from normal variations in functioning. For example, while the average person could reasonably be expected to react with fear or anxiety when faced with genuine danger, a person with an anxiety disorder might be paralyzed with fear in response to relatively innocuous objects or situations. When differentiating between normative and abnormal functioning and reactions, it is also important to consider individual differences, such as age, culture, and gender.
Types of Mental Health Assessment in the Criminal Justice System
Identifying Basic Needs and Treatment Planning
Research suggests that persons with mental health problems are overrepresented within criminal justice settings around the world. As a result, mental health treatment may be offered to facilitate criminal justice processes, such as participation in criminogenic interventions intended to reduce risk of criminal recidivism (i.e., the commission of new offenses following release from custody). Offenders in many jurisdictions are also considered to have rights to basic mental health care, just like nonoffenders. Thus, general mental health assessments may be offered to criminal justice populations in a manner similar to those offered to community populations, in order to identify treatment needs and select interventions.
Competencies and Criminal Justice Processes
In order for an individual to participate in criminal justice processes, from the early stages of an investigation (e.g., participating in questioning by police investigators), through trial proceedings, and on to the administration of punishments, he or she must be deemed competent or fit to proceed. That is, the individual must have the mental capacity to understand and participate in the criminal justice process in question. While the various criminal competencies described in the following subsections are related concepts, they also differ in some important ways, including the specific elements required for competence and the time period of interest.
Competence to Waive Miranda Rights
Accused individuals are considered to have certain rights when detained for the purposes of an investigation or interrogation, even before charges are brought against them. For instance, U.S. citizens are legally protected against forced self-incrimination. Statements made in the absence of a competent waiver of certain rights may not be admissible in court proceedings. These rights, often referred to as Miranda rights as a result of relevant case law, include the right to remain silent, the right to consult with an attorney and to have the attorney present during questioning, and the right to have an attorney provided if the accused lacks the resources to obtain one. In order to be competent to waive his or her Miranda rights, the accused individual must be capable of knowingly, intelligently, and voluntarily doing so.
Mental health service providers may be called upon by the courts to assess whether these three requirements were met in cases involving the waiver of Miranda rights. Several authors have recommended that assessors conduct a comprehensive mental health assessment, including a clinical interview; psychometric testing of cognitive functioning, personality, and response style/ bias; contacting collateral information sources (i.e., other persons with knowledge of the individual or case); and reviewing documentation of the interrogation or investigation. Assessment of competence to waive Miranda rights focuses on the accused’s mental state at the time of the investigation in question; in contrast, the accused’s mental state at the time of the trial or assessment is not the central issue.
Competence to Waive the Right to Counsel
As mentioned previously, an accused individual has the right to legal counsel. However, accused persons also have the right to represent themselves, commonly referred to as proceeding pro se. In the United States, this right to represent oneself is protected under law, even in cases in which doing so may not be considered by others to be in the best interests of the defendant. However, similar to a waiver of Miranda rights, a waiver of the right to counsel must be made knowingly and intelligently. Importantly, competence to waive the right to counsel (i.e., understanding the possible risks and consequences of such a decision) may be distinguished from the competence or skill to actually conduct a strong defense.
Competence or Fitness to Stand Trial
Once charges have been laid and the accused proceeds to a criminal trial, the issue becomes one of competence or fitness to stand trial. Early legal documents pertaining to fitness for trial can be found among records of English common law dating to the 17th century. Under English law at the time, in order for accused individuals to undergo trials, they needed to possess a basic understanding of the pleas available to them, the possible outcomes of trials (e.g., the punishments they may face), and the types of information that might be appropriate for the construction of a legal defense. Under Canadian law, fitness to stand trial developed from an arguably ambiguous legal concept based on case law into a more clearly defined construct in the early 1990s and is now defined in the Criminal Code of Canada. To be found unfit to stand trial as a result of a mental disorder under Canadian law, accused individuals must be deemed unable to understand the nature or object of the proceedings, to understand the possible outcomes of the proceedings, or to communicate with their legal counsel. While the specific criteria vary somewhat by country or jurisdiction, the standards are similar in other nations, such as the United States and the United Kingdom.
It is important to note that assessors called upon to evaluate fitness to stand trial must consider the individual’s mental state at the time of the trial; the individual’s mental state at the time of the alleged offenses is irrelevant. Should the accused individual be found unfit to stand trial, the judge may halt the proceedings until such time as fitness may be restored. Thus, fitness or competence to stand trial is potentially dynamic; an accused individual who has been deemed unfit at one point during a trial may become fit through mental health treatment, training or education, or through the passage of time, at which point his or her trial may recommence.
Competence to Be Sentenced
Competence to be sentenced pertains to the accused’s mental state in the period of time after a guilty verdict has been reached, but before a sentence has been rendered. This form of criminal competence involves the accused individual’s ability to comprehend the sentencing process as well as the possible sentences. Consistent with the broader concept of fitness to stand trial, competence to be sentenced can also be dynamic in nature. If the individual is deemed to lack this competence, the sentencing process may be delayed until such time as competence can be restored.
Competence to Be Executed
In the United States, some mental health service providers have been called upon to assess competence to be executed (i.e., to receive capital punishment). This concept has proven to be a legally and ethically complex one. An assessor could be asked, for example, to consider whether the offender understands that he or she has committed a crime, that he or she is facing execution, and that the execution is a result of the crime. While this may appear to be a relatively straightforward extension of the principles associated with other criminal competencies, it is problematic for mental health professionals who have professional and ethical commitments to refrain from doing harm to their patients or clients.
In February 2007, the American Psychological Association, the American Psychiatric Association, and the National Alliance on Mental Illness submitted an amicus brief to the U.S. Supreme Court regarding the competence to be executed. While the brief made reference to a specific case, more generally the parties argued that executing a prisoner who does not appreciate the nature of the penalty is inconsistent with the purpose of the death penalty (i.e., retribution for a specific crime). The Supreme Court agreed with the parties submitting the brief in this case and also noted that mental health professionals serving as expert witnesses could assist the court by conducting assessments of offenders’ competence or mental state.
Mental Disorders and Criminal Responsibility
The idea that mental disorders may diminish legal culpability dates back at least 2,000 years, when the Roman leader Marcus Aurelius argued against conventional criminal punishments for insane offenders. While accepting that serious mental disorders may mitigate criminal responsibility could seem to be a straightforward concept to some readers, the practical implications of this idea have long been a source of legal and political debate. As a result, the manner in which laws involving criminal responsibility and mental disorders are applied has changed over time and varies across nations and jurisdictions. For instance, in England in the 1700s, it was argued that an accused offender should not be held criminally responsible for an offense committed while lacking the understanding of a 14-year-old or if his or her understanding of the behavior was comparable to that of a nonhuman animal. Then, in the mid-1800s, a landmark case involving a man named Daniel M’Naghten resulted in further clarification of the standard for criminal responsibility in Britain. M’Naghten shot and killed a secretary to the British prime minister, having mistaken him for the prime minister himself, while under the delusional belief that the prime minister and his party were persecuting him. The courts acquitted M’Naghten on the basis of insanity and formulated what has come to be known as the M’Naghten test or standard. The standard can be summarized as follows: When an accused individual is not criminally responsible for an act committed while experiencing a disease of the mind that renders him or her unable to comprehend the nature and quality of the act or that it is wrong.
While the M’Naghten standard remains the basis of pertinent law in some nations and jurisdictions, including Canada and England, various courts have considered other standards. For instance, an alternative referred to as the Durham standard was used by federal courts in the United States in the middle of the 20th century and remains in use in New Hampshire. The broader Durham standard was developed in response to perceived limitations (e.g., restrictiveness) of the M’Naghten standard and essentially allows for an accused individual to be found not criminally responsible for any action that was the result of the mental disorder or defect. Another standard, developed by the American Law Institute in 1972, posits that a defendant should not be held criminally responsible for an act committed while experiencing a mental disorder that rendered him or her unable to appreciate the criminality of the act or to conform his or her behavior to the law. In 1984, the U.S. Congress passed new federal legislation pertaining to criminal responsibility, which requires the defendant to prove that at the time of the offense, he or she was experiencing a mental disorder that rendered him or her unable to appreciate the nature and quality or wrongfulness of the behavior.
Mental Health Assessment of Criminal Responsibility
While the exact legal standards for criminal responsibility may vary, mental health assessments in this domain share some common elements. For instance, unlike fitness to stand trial assessments, which focus on the accused individual’s current mental state, assessments of criminal responsibility focus on mental state at the time of the offense. As a result, an assessment would generally involve a clinical interview with the individual in question, a detailed review of relevant documentation, and discussions with collateral contacts. Of particular interest to assessors are documents or individuals who may be able to provide insight into the accused individual’s thoughts, emotions, and behaviors as recalled or recorded before, during, and after the index offense (i.e., the offense that prompted the assessment). Examples include police reports summarizing the factual details of the offense, transcripts of any interviews conducted with the accused individual or other witnesses, and information gathered from persons with an intimate knowledge of the accused (e.g., family members, roommates, friends).
That being said, historical information, including records of previous involvement with mental health service providers, is also relevant to the assessment of the presence or absence of a mental disorder. This type of background information is necessary to assist the assessor in making a reliable determination of the presence or absence of a genuine mental disorder. Ultimately, both types of information are important, given that the assessor is responsible for evaluating both whether a mental disorder was present at the time of the index offense and whether that disorder impacted criminal responsibility, in keeping with the legal definitions outlined earlier.
Risk Assessment
Mental health service providers are often called upon to assess risk of violent, sexual, or general offending behavior. Risk assessments may be requested at various stages of an individual’s progression through the criminal justice system and may inform decisions about sentencing, supervision, placement or security level, and treatment or risk management activities. Many of the strongest and most reliable predictors of criminal behavior, including criminal history, are not specific to individuals with mental health concerns. Nonetheless, there is also evidence to suggest that mental health can be relevant to an assessment of risk.
Mental Illness as a Primary Predictor of Crime and Recidivism
Research on mental illness as a singular predictor of criminal behavior has produced conflicting results. On the one hand, some research has found only weak or no evidence for a relationship between mental health variables and criminal behavior. For instance, the influential MacArthur Risk Assessment Study, conducted in the 1990s, produced data on a sample of civil psychiatric patients in the United States. Some results from the MacArthur project indicated that diagnoses of schizophrenia were associated with a lower rate of violence over a 1-year follow-up period. In addition, reviews of the research on the best predictors of criminal behavior have identified eight risk factors, known as the Central Eight, as the most reliable predictors of general criminal recidivism, and these factors do not include diagnoses of a major mental illness.
On the other hand, there is also research to suggest that under certain circumstances, particular symptoms or diagnoses of a mental health problem are associated with criminal behavior and recidivism. First, diagnoses of some personality disorders can predict recidivism. More specifically, psychopathic personality disorder, antisocial personality disorder, and other personality disorders involving behavioral impulsivity and emotional instability, commonly referred to as Cluster B personality disorders, are associated with recidivism. In fact, antisocial personality pattern is counted among the Central Eight risk factors. Second, substance-related disorders, involving the abuse of illicit drugs or alcohol, are also associated with recidivism. In addition, when substance use disorders and some major mental illnesses co-occur, what is known as a dual diagnosis, risk of recidivism is elevated. Third, research evidence indicates that deviant sexual preferences, including disorders of sexual preferences such as pedophilia (i.e., sexual attraction to children), are associated with sexually violent recidivism. Finally, meta-analytic research synthesizing data from multiple research studies has found a small but significant relationship between psychosis and violence; however, this research also found that the relationship between psychosis and violence varies widely depending on the setting, population, and symptoms being studied.
Mental Illness and Structured Risk Instruments
Research on risk assessment practices has demonstrated that structured risk instruments are the most robust known predictors of crime and recidivism. It is notable, then, that several of the most widely adopted and supported risk instruments contain an item pertaining to the mental illness domains described earlier. That being said, even in this body of research, the predictive relationships among mental illness and various forms of recidivism are complex. For instance, research on the prediction of violence among forensic psychiatric inpatients suggests that scales measuring acute mental health symptoms are strong predictors of institutional incidents over short-term follow-ups, while scales measuring more stable risk factors (e.g., criminal history) are stronger predictors of community recidivism over long-term follow-up periods.
Specialized Mental Health Assessment: Neuropsychological Assessments in Criminal Justice Settings
Unlike many other types of mental health assessment, neuropsychological assessments are intended to provide the evaluator with an understanding of underlying brain functioning. Neuropsychologists apply specialized knowledge of the anatomy and function of the central nervous system to the assessment and treatment of various neurological, medical, cognitive, and behavioral disorders. Neuropsychology has the potential to offer considerable insight into the behavior of individuals in correctional settings given that, for example, incarcerated offenders tend to experience higher rates of head or brain injuries than the general population. Indeed, organic deficits that may contribute to impaired attention, memory, problem-solving, impulse control, or speed of responding are potentially relevant to decisions about sentencing, risk, offender management, and rehabilitation. However, service providers conducting neuropsychological assessments in criminal justice settings must be mindful of various ethical and practical complications. For instance, the interpretation of many neuropsychological tests relies heavily on normative data and patterns established from community populations, which tend to differ from correctional populations on a number of potentially relevant dimensions (e.g., education, intellectual ability, language, ethnicity). In addition, standardized administration procedures are essential to valid neuropsychological testing. These procedures include aspects of the assessor’s dialogue with the client, elements of the physical environment (e.g., adequate lighting and freedom from distractions), and standards for the order and timing of particular tests. In criminal justice settings, each of these procedures may be difficult to follow.
Symptom Validity and Malingering
Mental health assessments in criminal justice contexts may address a variety of questions, and the techniques and methods employed by service providers can take many forms. However, while certain details may vary, mental health assessments share common elements, including the fact that they often require the collection of information directly from the subject of the assessment (i.e., direct questioning, behavioral observation, psychometric testing). Indeed, it is a reality of mental health assessments that many important questions relate to an individual’s internal mental experiences, ranging from perceptual experiences, to general cognitive functioning, to comprehension of specific legal concepts. Mental health assessors must critically evaluate the validity of an evaluee’s self-report or behavior in any mental health assessment but must be particularly mindful of authenticity when the evaluee may perceive an incentive based on the outcome of the assessment. For instance, certain evaluees may wish to be perceived as more or less impaired by their evaluators during assessments for criminal responsibility. While one individual might exaggerate or feign symptoms of a major mental disorder to avoid a period of incarceration in a prison, another individual might passionately deny the presence of a mental disorder while holding the delusional belief that he or she is the president of the United States.
For the purposes of this entry, symptom validity refers to the accuracy or genuineness of an evaluee’s self-report or performance or behavior during a mental health assessment. Malingering is defined in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition as the intentional production of false or exaggerated symptoms, and while malingering must be considered in many mental health assessments, it is not the only relevant concept related to symptom validity. Symptom validity may be called into question for a number of reasons, but it is worth noting that evaluees may exaggerate, underreport, feign, or deny symptoms for a variety of reasons and that it is common for persons to intentionally and unintentionally influence how they are perceived by others. In addition, symptom validity is not an all-or-nothing concept; the fact that some elements of the evaluee’s presentation or self-report are of questionable validity does not discount all other elements.
Given that mental health assessments often focus on questions related to the evaluee’s internal mental state and given that symptom validity may be impacted by a variety of subtle or clear variations in behavior, the assessment of symptom validity is a difficult and important task. Nonetheless, mental health assessors do have a number of techniques available to them. For instance, some psychometric tests incorporate indicators of symptom validity within the tests themselves. There are also scales specifically designed to assess symptom validity and malingering. These psychometric indicators and scales may alert the assessor to concerns about response inconsistency, rare responses, response biases (i.e., excessively positive or negative responses), or malingered mental illnesses. In addition to specialized psychometric measures, assessors may compare clinical data to behavioral observations, collateral and historical information, and knowledge of relevant research (e.g., common and uncommon symptom combinations).
Concluding Thoughts
Mental health assessments in criminal psychology may take many forms and address a number of questions. In addition to the principles of sound mental health assessments in general, service providers in criminal justice settings must also be mindful of additional factors, such as relevant legal concepts and questions about the validity of their evaluee’s self-report. These assessments are often complex and difficult but have the potential to offer various stakeholders unique and valuable information.
References:
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- Grisso, T. (2003). Evaluating competencies: Forensic assessments and instruments (2nd ed.). New York, NY: Kluwer.
- Newby, D., & Faltin, R. (2008). The very essentials of fitness for trial assessment in Canada. Journal of Offender Rehabilitation, 47, 185–207. Retrieved from https://doi.org/10.1080/10509670801941118
- Roesch, R., Zapf, P. A., & Hart, S. D. (2010). Forensic psychology and law. Hoboken, NJ: Wiley.
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