Art. 46B.021(c) says an "expert involved in the treatment of the defendant may not be appointed to examine the defendant under this article."

Have a case where the psychiatrist who examined defendant for competency treated the defendant in the past. The psychiatrist used to work for VA, and the defendant is a vet. The psychiatrist doesn't remember ever seeing defendant, but some medical records indicate he had some involvment with defendant's past treatment. Only after psychiatrist's report comes back with unfavorable opinion does defendant complain.

Any ideas what "treatment" involves? Does this mean ever treated defendant, or only as a current patient? Does anyone know what legislative intent was in this prohibition? Has anyone had a similar case, and how was that dealt with?

A caveat or limitation on the weight of my comment is proper, inasmuch as I am responding without researching this matter so as to be able to cite a plethora of cases on the issue.

Having said that: First, the restriction in the Code to the effect that an opinion on competency should be provided by an examiner who is not involved in treatment of the defendant was inserted by the committee both because of issues long ago raised in Estelle v. Smith, 451 U.S. 454 (1981) about the lack of neutrality of the examiner, and discussed in Moore v. State, 999 S.W.2d 385, (Tex. Crim. App. 1999) wherein both a current treating doctor and an examiner testified. Further, the Forensic Specialty Guidelines of the American Academy of Forensic Psychologists, as well as those of the American Psychiatric Association both eschew confusing the roles of evaluators and treaters. In fact, the Texas Administrative Code would make it a violation of a Board rule for a psychologist in a court appointed case to be both. That is, one must be either an evaluator or a treater, but not both in the same case. Violation of that rule would subject the licensee to possible sanctions.

Secondly, however, on the fact pattern which you provide I would focus less on the definition of "treatment" and more on the lack of current contact. I would note that the prohibition in the Code is written in the present tense. The examiner is not now treating the defendant, and the issue would be whether a prior role as a physician or psychologist who treated a patient would in any sense compromise or predispose the examiner toward bias in his/her examination of the defendant at the present time.

From your facts, I would hope that the nominal nature of the prior treatment contact, the distance in the past, the fact that the examiner had no recollection of having seen the defendant would all be in the record.

For further information, contact Mary Alice Conroy, Ph.D. at Sam Houston State University - she was on the work group for 46B and argued for this provision in the interests of promoting neutral examiners rather than persons who take someone into treatment and then become their advocate.

Judge agreed with your line of reasoning and denied motion to appoint new expert.