Psychologists' evaluations put many cases in question

Ellen Miller, Special to the News

Thursday, January 26, 2006

Hundreds of criminal cases in Colorado are in jeopardy of being overturned because courts relied on unqualified experts to determine whether defendants were mentally competent to stand trial.

For years, the Colorado State Hospital has provided psychologists to courts to determine whether criminal defendants are mentally competent, apparently overlooking a provision in state law requiring that those evaluations be made by psychiatrists.

Forty-one percent of the 800 such evaluations performed by the state hospital in fiscal year 2004-2005 were done by people lacking the medical degree that a psychiatrist holds, according to figures from the Colorado Psychological Association.

Prosecutors say that could open up potentially hundreds of criminal cases to appeals.

"I may have opened up a real can of worms here," said Mesa County District Attorney Pete Hautzinger, who successfully challenged a competency evaluation Monday that had been performed by a psychologist instead of a psychiatrist. "But all of us in government have to follow the law."

The issue came to light when the Colorado District Attorney Council's legislative committee decided to oppose a legislative proposal to allow psychologists to do the evaluations.

"I think they (the Colorado Psychological Association) want to legitimatize what they're doing," said Dave Thomas, the former Jefferson County DA who is executive director of the district attorneys council.

But, he added, "The statute is clear. Even if they say a psychologist is working under the supervision of a psychiatrist, so it's OK, that's not what the statute says.

"There's a lack of standards (in the pending bill) and training and methods are all over the map," he said. "DAs want to establish consistency and standards before who gets to perform them gets expanded."

Liz McDonough, spokeswoman for the state Department of Human Services, said the state hospital "believed the language (in the statute) was permissive rather than prohibitive."

McDonough said the department did not initiate the bill and has not taken a position on it.

She said the state hospital has always informed judges when it plans to use a psychologist, and they have the option of objecting and having a psychiatrist appointed.

But that can mean a significant delay, according to state hospital guidelines, which point out "this will usually require that the defendant be brought into the hospital in Pueblo."

A competency exam is conducted before trial, when a defendant's mental faculties are in doubt, to determine whether that person is capable of assisting in his or her defense at trial.

Kristen Hubbell, spokeswoman for Colorado Attorney General John Suthers, said prison inmates convicted after evaluations by psychologists rather than psychiatrists may be able to challenge the validity of the examiners, depending on the circumstances of their individual cases.

Psychiatrists are medical doctors who have completed advanced training in medical diseases and can prescribe medications. Psychologists must hold doctoral degrees to be licensed in Colorado but cannot prescribe medicine.

Chad Morris, a psychologist at the University of Colorado Health Sciences Center and president of the state psychological association, said Thomas and the DAs have known all along, as have judges and public defenders, that the law requires psychiatrists.

"It's something I think DAs keep in their pockets to use if they disagree with an evaluation," Morris said. "The fact is, even with us doing more than 40 percent of the cases, there's still a backlog. There aren't enough psychiatrists."

Moira Cullen, a lobbyist hired by the psychological association to push House Bill 1080, said Colorado is one of only nine states that require psychiatrists for competency evaluations.

Courtroom psychology tests

9 Number of states, including Colorado, that require psychiatrists to determine criminal defendants' mental competency.

328 Number of Colorado defendants evaluated in 2004-2005 by psychologists, who are, under the law, not qualified.

800 Number of criminal defendants evaluated by the Colorado State Hospital that same year.

Source: Colorado Psychological Association