Several attorneys have asked about having in-custody clients evaluated for competency or purposes during the COVID-19 pandemic. I’ve talked with experts about their availability and many are available, if appropriate measures to ensure safety are in place during the mental health evaluation.
There isn’t a one-size-fits-all approach to how to conduct these necessary evaluations, but there are several factors that attorneys should consider when arranging an evaluation of an in-custody client by an independent expert.
Attorneys and experts should stay informed about how COVID-19 is transmitted, signs and symptoms of COVID-19, COVID-19 vulnerability, and ways to mitigate risks and concerns for individuals, especially those in congregate living facilities. Trusted sources of information such as the CDC, the WHO, and NC DHHS provide information about precautions that should be taken. Experts should consider being confirmed COVID-19 negative prior to scheduling in-person meetings with vulnerable individuals.
The attorney should decide whether it is necessary to conduct the evaluation immediately or if the evaluation can be delayed. If the client is displaying symptoms that need immediate attention or are short-term and potentially indicative of mental state at the time of the offense, it may not be possible to delay.
If the evaluation is going to be delayed, the attorneys should ask about the expert’s caseload to ensure they will have availability to conduct the evaluation once trials resume and conditions improve. Some experts have accepted new cases during the pandemic and are performing tasks such as record review until it is safe to conduct in-person evaluations. When trials resume, these experts may have a backlog of evaluations to conduct that were on hold during the pandemic.
The attorney should collect information for the expert about the current infection rate within the facility. Information about the number of tests performed in the state’s correctional facilities and the results are available here. However, this information does not indicate the number of inmates currently infected with COVID-19 in a facility.
The attorney should collect information about what visitation conditions are available where the client is being detained. Here are some possible conditions that a detention facility may offer:
- Video visitation – The attorney should find out if the facility is equipped to offer a secure, confidential, and not-recorded video conference that an expert can use to conduct an evaluation remotely, where appropriate.
- In-person non-contact visitation – The attorney should find out the procedure for cleaning the visitation room and equipment between visits, whether documents can be shared in a non-contact visit, and whether lighting and audio is adequate for the expert to conduct an evaluation during a non-contact visit.
- Contact visitation – The attorney should find out whether the facility provides/requires personal protective equipment for the visitor and the inmate, and whether the visitor can bring their own PPE, such as mask, gloves, hand sanitizer, sanitizing wipes or other equipment to disinfect equipment like written materials, blocks, or other necessary items.
- Other – The attorney should consider whether it possible to transport the client to a secure location where social distancing can be observed during evaluation, such as a conference room in the courthouse. If the client is out of custody, the attorney should consider whether they can provide appropriate testing conditions in their office.
Before the visit
Ensure that proper conditions are in place for the safety of the expert and the client and so that the expert is not put in the position of having to refuse the visit upon the discovery of unexpected conditions.
Inform the expert of any safety precautions that the detention facility has in place, such as taking of temperature, requirement of PPE, or other conditions. Some facilities will exclude visitors who have a temperature above 99.5 F. Experts and attorneys should check their temperatures before traveling to a facility and consider factors other than fever that can cause a slight fluctuations in body temperature, such as stress, time of day, exposure to heat/cold, menstrual cycle, exercise, eating, and many other factors. Discuss the visitation conditions with the expert to ensure that they meet the needs of the expert for conducting the evaluation. Discuss with the expert the current infection rate at the facility if the expert needs that information. Finally, discuss with the expert a plan for what to do if proper conditions are not available at the time of the visit.
Some additional general recommendations for experts and attorneys preparing for an evaluation to be conducted in a detention facility are available here.