Ryan Finkenbine, M.D.: "We were able to make a case that paying
more up front for the evaluations to be done competently would save
Credit: Sophia Bienek-Cate, MA, ALPS
An academic exercise in writing model legislation has resulted in a new law
in West Virginia mandating the "highest standards" of training for
psychiatrists conducting state-funded evaluations of competency to stand
West Virginia Gov. Joe Manchin (D) signed a law that will go into effect in
July mandating that state-paid evaluations of indigent defendants to determine
their competency to stand trial must be conducted by experts who are, among
other requirements, "[b]oard eligible or board certified in forensic
psychiatry by the American Board of Psychiatry and Neurology" or"
[b]oard eligible or board certified in forensic psychology by the
American Board of Professional Psychology."
Forensic psychiatrist Ryan Finkenbine, M.D., who helped draft the bill,
explained that prior to the bill's passage, state law had allowed any
psychiatrist or psychologist to conduct competency evaluations. However, West
Virginia was unique in licensing people with master's degrees to practice as
psychologists; consequently, it was not unusual for evaluations to be
conducted by master's-level practitioners, and the results were often flawed,
"I have reviewed some of these evaluations, and there were often
ethical violations as well as missing and misreported information,"
Finkenbine said. "There have been cases where the court has ordered
multiple re-evaluations, up to as many as 13 times, costing the state an
enormous amount of money.
"But under existing law, the state was tasked with paying for
whatever was approved by a judge, and since lesser-qualified professionals
were charging lower fees, a system developed whereby indigent defendants
invariably were sent to the least-qualified person," Finkenbine said."
We were able to make a case that paying more up front for the
evaluations to be done competently would save money."
He added that when the state's department of health and human resources
examined the costs associated with the existing system for evaluating
competency, that argument was confirmed.
Finkenbine is director of psychiatry residency training and director of the
forensic fellowship program at the West Virginia University School of
"The state has a financial interest in this issue," state Sen.
Mike Oliverio (D), vice chair of the state senate judiciary committee,
told Psychiatric News. "When an indigent person is charged with
criminal activity that could result in being sent to prison, the individual is
eligible for representation by the state, so right off the bat the state is
paying the bill.
"It seems to me that the responsible thing to do is to determine
whether that person is competent to stand trial before you embark on years of
litigation. What Dr. Finkenbine did was to impress on me and other legislators
the importance of having people who make that decision have suitable training
by establishing a threshold of experience."
In fact, the law grandfathers in many professionals who are conducting
evaluations, but Oliverio said it also clearly establishes an expectation that
courts will henceforth be using the most qualified professionals.
Past APA President Paul Appelbaum, M.D., said West Virginia is not the
first state to limit the pool of eligible examiners to the most qualified
people in an effort to improve quality.
"It makes sense that mental health professionals who are performing
specialized forensic evaluations should have the training and experience to do
them competently," he told Psychiatric News. "Since the
early 1990s, Massachusetts has required that psychiatrists and psychologists
who perform criminal forensic evaluations for the state undergo a training
process that includes didactic sessions, reviews of actual evaluations, and
The Department of Psychiatry at the University of Massachusetts has a
contract from the state to conduct the training, he said.
Appelbaum, who is also a past president of the American Academy of
Psychiatry and the Law, said he believes that restricting evaluators is not
without potential problems. "Although allowing only persons who are
board eligible or certified to conduct such evaluations may well ensure a
minimum level of quality, it clearly constrains the number of available
evaluators, which could be a problem in the future," he said."
Substituting specific training for interested mental health
professionals would allow a larger number of persons to obtain the necessary
skills and sets an even more relevant standard.
"Of course, West Virginia's approach has the advantage, from the
state's perspective, of being cost-free," he added.
The process of rewriting the state law began six years ago when Finkenbine,
who teaches at the university's law school, undertook to write model
legislation for competency evaluation as an academic exercise with a forensic
fellow, David Estep, M.D.
Later, in 2004, the state convened a task force to examine the issues
surrounding state representation of indigents and asked Finkenbine to attend.
He presented his model legislation, and the task force decided to adopt it
wholesale and to pitch it to the legislature.
"It was a learning experience for me to discover the politics that
went along with putting together what was on the surface a very good
idea," Finkenbine said. "But our persistence over the past three
years in advocating from a position of strength has paid off in a way that
will benefit everyone in the system—the courts, judges, lawyers, and
people who have a mental illness.
"Anyone who is knowledgeable about what we do would agree that there
is something special about it that requires some degree of training to do
correctly," Finkenbine said. "We've managed to establish that if
you do what amounts to an additional seven years of training, that training
has some meaning, and you will do higher quality work." ▪