By: Stephen M. Marson, Ph.D., ACSW
Book review of
Competence in the Law: From Legal Theory to Clinical Application , by Michael L Perlin, Pamela Champine, Henry A. Dlugacz, & Mary Connell. Published by John Wiley & Sons, Hoboken, NJ, 2008. 312 pages, $75.00.
Competence in the Law: From Legal Theory to Clinical Application demonstrates and reaffirms that the most problematic aspect of current judicial proceedings is the issue of competence. At first glance of the title, one is likely to believe that the authors are addressing competence as a defendant. However, the authors cover a surprisingly vast arena in both criminal and civil courts. Specifically, the authors examine the following:
Competency to stand trial
Competency to plead guilty
Competency to waive counsel
Competency within the pretrial process
Miscellaneous competency issues
Competency after the trial
Competency to plead insanity
Competency to plead guilty but mentally ill
Competency of a sexual predator
Competency to be executed
Competency for an involuntary civil commitment
Competency to refuse treatment
Competency within an institution (nonprison)
Competency within a prison
Competency related to tort actions
Competency and civil contracts
Competency related to wills, trusts, and donations
Competency and guardianship
Competency and domestic relations
The amount of information seems a bit overwhelming, and some topical areas are covered more thoroughly than others. In fact, each of these topical areas is worthy of its own book. “Criminal Competencies” is the central focus of the book and is the most comprehensive section, whereas issues related to civil law are much less thorough.
The intended audience for this work includes forensic mental health professionals who are expected to be or already are expert witnesses. Thus, emphasis is placed on psychology students and seasoned psychologists, psychiatrists, and lawyers (plaintiff and defendant). In addition, the authors contend that judges will find their work useful. Lastly, they recommend their work to jurors. However, I doubt that most citizens who are eligible for jury duty will have the legal vocabulary to comprehend most of this text. Although Competence in the Law can hold an interested reader’s attention, it does not read like a novel—it is not something I would recommend to the general public.
Although the authors do not include social workers as part of their intended audience, I suspect that clinical social workers who anticipate becoming expert witnesses within a competency hearing will find the work valuable. In the non-clinical arena, the Competence in the Law work has several shortcomings. As a practicing gerontological social worker with a substantial number of years in dealing with Medicaid and “spend-down” regulations, I found that the authors failed to offer adequate detail. However, the amount of information needed by a gerontological social worker would require an entire book of information. Another aspect of this work that would be of great interest to social workers is the short discussion of the ethical problem of client definition faced by a psychologist (see page 17). Since the 1973 publication of Pincus and Minahan’s Social Work Practice: Model and Method, the issue of client definition is much less problematic for social workers than for psychologists.
The authors continually stress that the assessment of competency is an unresolved judicial quandary several centuries old. Although most of the book addresses legislative standards and court activity related to competency, the authors also include current remedies for the determination of competency. Here, the authors provide citations for at least four practical protocols for assessing competence. Standardized measurement tools are critical for the contemporary clinician. Unlike the recent past, courts are currently demanding standardized objective tools for assessing and determining competence for a wide range of legal decisions. The author contributions in this respect are quite helpful.
The major weakness of Competence in the Law is the index. Most of the index lists court/legal dispositions. A small portion includes concepts that would be of interest to clinicians. For example, the authors address (in several different locations) the competency issues related to accepting/rejecting psychotropic medications. However, one cannot use the index to revisit these discussions. Because of the dominance of court cases, the index is much more useful to lawyers and judges rather than clinicians.
The authors do an exceptionally good job of explaining historical events that led up to court decisions. These rationales will help clinical social workers. Frankly, I was quite surprised at the logical processing of U.S. Supreme Court Justice Antonin Scalia. Based on the authors’ description, some Supreme Court justices do not seem to know the difference between mental retardation and mental illness. These justices, led by Scalia, have expressed concern regarding a defendant’s ability to “fake” retardation. Diagnosing mental retardation does not have the problem of reliability as diagnosing mental illness. In addition, all jurisdictions mandate multiple objectives measured over time—which makes “faking” extremely difficult. Lastly, unlike many mental illnesses, mental retardation can be identified via current medical scanning devices. The authors force the reader to assess the infallibility of our judges.
In general, Competence in the Law is an exceptionally good book for addressing criminal issues. Clinical social workers who will become expert witnesses for assessing competencies in criminal cases will find this work helpful. Academic libraries that serve MSW programs with clinical specialties should have this work on their shelves.
Reviewed by Stephen M. Marson, Ph.D., ACSW, Professor, Social Work, University of North Carolina at Pembroke.