Competence in the Law: From Legal Theory to Clinical Application

MICHAEL L. PERLIN is a Professor of Law at New York Law School (NYLS), Director of NYLS's Online Mental Disability Law Program, and Director of NYLS's International Mental Disability Law Reform Project in its Justice Action Center. PAMELA CHAMPINE is a Professor of Law at New York Law School, specializing in wills and trusts and related personal affairs. HENRY A. DLUGACZ is an assistant clinical professor of psychiatry and behavioral science at New York Medical College. He is an attorney, psychiatric social worker, and consultant specializing in mental disability issues. MARY CONNELL is a forensic and clinical psychologist in independent practice in Fort Worth, Texas. She works in a range of forensic practice areas and specializes in child sexual abuse in family, tort, and criminal litigation.

Introduction: The Expanding Role of the Expert Witness in Questions of Competence 1 1. Overview: The History, Present Scope, and Future Implications for Legal Comptetency 5 A. The history of the relationship between competency and the law 5 B. Future growth in this area 8 C. Why the question of competence is so important to mental health professionals 9 D. An introduction to sanism and pretextuality 23 2. Criminal Competencies 25 A. Competency to stand trial 26 B. Competency to plead guilty 63 C. Competency to waive counsel 71 D. Other criminal competencies 78 E. Impact of incompetency fi nding on ability to enter insanity plea 90 F. Impact of incompetency fi nding on ability to enter guilty but mentally ill plea 91 G. Impact of incompetency on the trial of a defendant as a sexually violent predator 91 H. Competency to be executed 92 3. Competency and Institutionalization of Persons by Reason of Mental Disability 134 A. Involuntary civil commitment 134 B. Competency and the right to refuse treatment 148 C. Competency and other institutional rights 166 D. Competency and correctional issues 171 4. Competency and the Civil law 174 A. Torts 181 B. Contracts 194 C. Wills, trusts, and other donative transfers 219 D. Guardianships 245 E. Domestic relations 268 5. Conclusion 292 A. Commonalities 292 B. Suggestions 296 About the Authors 299 Index 301