As forensic psychiatrists, one of our main roles is to apply the Dusky standard to assess competency. In this regard, multiple times a week, we see pretrial defendants who wait weeks, sometimes months, in jail, for their competency evaluations. Will they be permitted to attend court and continue with their legal proceedings, or will a judge remand them into an involuntary treatment unit to restore their competency? The number of defendants referred for competency evaluation is formally not measured, but estimates suggest it almost doubled from 19731 till 2000.2

The intent of ensuring the competency of the accused is fundamentally fair. While all would agree that only those who are convicted of committing crimes be found guilty, not every culture has paid attention to the question of whether those found guilty understand how and why that happened.

The competency concept should be familiar to physicians. It resembles the notion of a patient’s capacity to make informed medical treatment choices. As physicians, we do not want to subjugate patients to treatments that they do not understand. Similarly, judges do not want to incarcerate those who do not understand their conviction.

The Dusky standards come from the landmark U.S. Supreme Court case of Dusky v. United States in 1960. Milton Dusky faced charges of kidnapping an underage female across state lines and raping her. Despite psychiatric testimony that the defendant could not “properly assist” his counsel because of a delusion that he was framed, the court found him competent and convicted him to a 45-year sentence. The case was appealed all the way to the Supreme Court, which held that the fact that Dusky was oriented and remembered the events was not enough to establish competency. The Supreme Court stated that the test for competency was the ability to consult with a lawyer with “a reasonable degree of rational understanding” and a “factual as well as rational understanding of the proceedings.” The Dusky ruling did not comment on what conditions may make a person incompetent to stand trial.3

With the increase in referrals for competency, we have noted an expansion in the kind of referrals we receive. In a hospital setting, physicians often comment that referrals for capacity evaluations stem from the patient’s disagreement with her/his attending physician about treatment, not a lack of understanding of the treatment options. Similarly, many referrals we receive for evaluation of competency to stand trial seem generated by interpersonal difficulties rather than insufficient rational and factual knowledge. In this article, we will review a case seen in our clinic five times over a period of 7 years. Over that time frame, the defendant was incarcerated 10 times and referred 5 times for a competency evaluation. We have changed key facts about the defendant and his case to protect his confidentiality.

Defendant’s background

The defendant is a 40-something-year-old man who vacillates between homelessness and living with friends who partake in his penchant for alcohol. He has committed various crimes, including thefts, disorderly conduct, and possession of controlled substances. He went to prison once for selling narcotics but quickly retorts: “I don’t sell … . This [expletive] cop came and asked if I had any. She was hot. What did you want me to say? It was entrapment.”

He enjoys making loosely related jokes and educational points. “Doc … let me tell you about the different gang flags. Red is for Norteños and Bloods. Blue is for Surenos and Crips.” He is also proud of his criminality and sociopathy. “I hate cops. I love making their lives miserable. I swear at them all day trying to get them to snap and hurt me. I would sue them so bad.” His greatest achievement, in his opinion, is “getting Social Security for schizophrenia. I got the prison to apply for me prior to my release.” When asked if he is mentally ill, he answers, “Definitely not; are you crazy?”

However, to get this defendant to have a conversation is no simple task. On his way to the professional visit area, he was livid with a deputy about not receiving an entire breakfast tray earlier in the morning. When he sat down for the interview, he initially yelled for 10 minutes without interruption. His speech was full of profanities and demeaning comments about our ethnic background, education, and expertise. After about 15 minutes and numerous attempts at inserting a question or a comment, I said: “I do not think that you have evidenced a lack of competency, and you are not engaging with me. I am leaving. Thank you for your time.” He shouted two more times, then stopped, smiled, and said: “I was just testing you. Relax, doc.” He subsequently answered all of my questions with his usual jokes and a calm demeanor.

Once he engaged in the interview, he was able to provide a factual and rational description of his charge, which was, “criminal threat.” “I was at the bus station with my knife; I was playing with it; I was not threatening anyone. Then this [racial expletive] cop comes and tells me that I am under arrest.”

Challenging behavior continues

During the course of the interview, he was able to demonstrate that he understands the meaning of making a threat, of committing a crime, and of the roles of the different courtroom personnel. However, the stress of court highlights his interpersonal problems. In this particular case, he recounts: “Court had not yet started; I was talking to my lawyer, and the judge interrupted me, so I answered: Wait your turn [expletive] … not my greatest idea.” When asked about his past referral for competency, he mentions it was in response to trying to fire a public defender because “she was Mexican. I don’t work with those.”

Given his behavior, it is unclear how else a judge or a lawyer could have acted. One could argue that it would be a mistake not to refer this defendant for a competency evaluation, considering his outbursts. On the other hand, he had been evaluated many times before, and the opinion of well-respected forensic psychiatrists was that he did not have a mental illness.

While we reflect on our experience with this defendant, we are unsure of the lessons to be learned. We ponder whether psychiatry does a disservice when not being clearer about what constitutes a serious mental illness. We wonder if we exacerbated the confusion by the removal of “Axis II” categories from the DSM, implying that severe personality disorders are no longer different from, say, schizophrenia and bipolar disorder. Rarely do we hear psychiatrists point out that unusual behaviors do not equal mental illness. We are often too pleased in advocating for more resources by saying that all crimes, all substance misuses, and all annoying behaviors are forms of mental illness when, in reality, the criminal4, the addictive5, and the less common6 are not always biologically based mental disorders or even the real problem, for that matter.

This defendant is difficult. He argues, he yells, he provokes, and he hurts others physically as well as emotionally. While many psychiatrists have decided to codify this pattern of behavior within the B cluster of personality traits, have we misled the public into thinking that patients with personality disorders require the same attention and care as patients with other forms of mental illness, like schizophrenia? Often, we see patients with schizophrenia, bipolar depression, or major depression, who even at their best, are too impaired to file their taxes, apply for an identity card, or understand the complexity of the legal system.

Psychiatry’s difficulty in verbalizing the difference between those disorders harms the public perception of mental disorders. As a result, we have a forensic system similar to the rest of the community health care system – with an abundance of individuals with severe mental illness not referred for treatment or evaluation, and several patients with personality disorders bogging down a system with very limited resources. It is our responsibility not only to educate the public on how to manage and contain the emotions that patients with personality disorders engender in us, but also to educate the public on how to recognize patients with profound mentally ill patients who are quietly suffering.

Dr. Badre is affiliated with the county of San Diego, the University of California at San Diego, and the University of San Diego. Dr. Rao is a San Diego–based board-certified psychiatrist with expertise in forensic psychiatry, correctional psychiatry, telepsychiatry, and inpatient psychiatry.


1. Competency to Stand Trial and Mental Illness: Final Report . Rockville, Md.: National Institute of Mental Health, 1973.

2. Youth on Trial: A Developmental Perspective on Juvenile Justice . Chicago: University of Chicago Press, 2000.

3. J Am Acad Psychiatry Law. 2007;35(4 Suppl):S3-72 .

4. Clin Psychiatry News. 2017;45(8):5 .

5. Law and Philosophy. 1999;18(6):589-610 .

6. Am J Psychiatry. 1981 Feb;138(2):210-5 .