restoration treatment. This innovation is also politically
attractive, as the services are much less costly.
The majority of IST defendants appear to accept
restoration treatment voluntarily, but significant legal
and ethical conflicts arise regarding those who refuse
court-mandated treatment. In Sell v. United States
(2003), the Supreme Court considered the circum-
stances under which psychiatric medication could be
administered against defendants’ objections, for the
purpose of restoring competency. The court empha-
sized that alternative bases for involuntary treatment
should be considered first, including treatment justi-
fied by danger to self or others or treatment through
guardianship procedures. In the absence of these alter-
native justifications, the government could seek invol-
untary treatment solely to restore competency in
limited circumstances—namely, if the proposed treat-
ment was medically appropriate, substantially unlikely
to have competency-impairing side effects, and neces-
sary vis-à-vis less intrusive alternatives to accomplish
an important governmental interest in bringing the
defendant to trial. Nonmedication treatments have
been viewed as less intrusive or objectionable and have
not been a source of significant litigation.
Some have argued that mental health practitioners
play an ethically conflicting role as treater and evalu-
ator in the restoration process. This view has not
gained wide acceptance. Those involved in compe-
tency restoration efforts note the importance of full
disclosure to the defendant of the purpose of treatment
and the procedural protections afforded by judicial
hearings authorizing the treatment. They also note that
it is in the defendant’s interest to regain competency in
order to avoid potentially lengthy commitment and
benefit from the panoply of procedural rights guaran-
teed a defendant proceeding to trial. Despite occa-
sional negative commentary on the ethical propriety
of mental health professionals’ participation in the
restoration process, this role remains important in the
administration of justice.Focus of Restoration Treatment
Competency restoration is often implemented on an
individualized basis, though some inpatient centers offer
highly structured programs. The most common model
combines these elements and involves individual treat-
ment of any underlying mental illness combined with
group education and practice modules and individual
coaching. There is consistent evidence that defendants
referred for non-restoration-specific, general psychiatrichospital care are significantly less likely to regain com-
petency than those receiving care in a formal restoration
program, either inpatient or community based.
Defendants referred for restoration can be broadly
divided into those with primarily Axis I disorders and
those with mainly cognitive limitations. In practice,
many incompetent defendants exhibit multiple diag-
noses, particularly involving personality disorders and
substance abuse. While the latter factors are rarely
priorities for immediate treatment, they may compli-
cate restoration efforts. Given the overrepresentation
of linguistic and cultural minorities among the defen-
dant population, acculturation issues and language
barriers can also be significant complicating factors.
Individualized treatment planning is required to man-
age these varied needs.
Defendants with a major mental illness are typically
treated with the implicit assumption that but for their
psychiatric symptoms, they would be competent.
Schizophrenic-spectrum illnesses are most commonly a
focus of treatment—and less frequently, mood disor-
ders. Symptoms including delusions, hallucinations,
disorganized thought or behavior, and agitation often
impair defendants’ understanding of their case and pro-
ceedings or their ability to collaborate with counsel,
rendering them incompetent. Medication treatment to
reduce these symptoms is often the mainstay of restora-
tion efforts and may be seen as a prerequisite to other
interventions that require greater cooperation and active
participation by the defendant/patient. In affective dis-
orders, increased attention and concentration and
improved morale may be targets for pharmacological
intervention. Consistent with case law focusing on
“medical appropriateness,” any proposed treatment
should comport with general standards of care for the
diagnosis at hand and take into account the unique psy-
chological, medical, and other needs and limitations of
the incompetent defendant. Complete remission of
symptoms is typically not required to meet the practical
requirements for competency.
Educational programs appear more tailored to the
needs of mentally retarded or otherwise cognitively
impaired defendants. These programs typically involve
formal testing and retesting to assess the defendants’
baseline functioning and progress. Most programs use
one or more specific adjudicative competence mea-
sures and may structure a curriculum in accord with
the theoretical underpinnings of that measure. Group
format educational efforts are typically offered
once or more per week, up to daily in some pro-
grams. These may entail lecture-like presentations,Competency, Restoration of——— 109C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 109