Competency restoration is the process of restoring a defendant to competency by the means of addressing a defendants' barriers to competency through psychotropic medication, legal education, and referrals to additional resources. Research has been conducted related to the process, effectiveness, and a variety of other aspects of competency restoration, but little is known about the rates of decompensation after defendants have been restored to competency. Decompensation, or the deterioration of an individual's mental health, is not only psychologically distressing to the individual experiencing it, but in this context, it has a significant impact on the speed of court proceedings. Although little research has been conducted, it is reasonable to predict that decompensation in correctional settings is high due to empirical findings that correctional settings often exacerbate inmates' already existing mental health difficulties (Fellner, 2006;Jordan, 2011;. The purpose of this article is to discuss ethical considerations related to the risk of decompensation in correctional settings after a defendant has been restored to competency, based on the Ethical Principles of Psychologists and Code of Conduct (American Psychological Association [APA], 2017) and the Specialty Guidelines for Forensic Psychology (APA, 2013). This article also highlights the scarcity of data related to decompensation postrestoration and provides suggestions for psychologists to advocate and support defendants in the maintenance of their competency, as well as suggests future directions for the criminal legal system as a whole.

Under United States law, criminal prosecution may not proceed against a defendant who is incompetent to participate in this process. The vast majority of defendants who are adjudicated incompetent to stand trial (IST) will subsequently regain sufficient capacities to be adjudicated competent to stand trial (CST). However, a small subgroup of defendants do not show sufficient improvement in clinical functioning and functional–legal capacities to regain CST. Under Jackson v. Indiana (1972), such individuals should be adjudicated unrestorably IST, with associated actions (e.g., dropping of criminal charges, civil commitment, transfer to a less restrictive environment or released) specified under the particular jurisdictional statutes. But the present practices associated with the evaluation of unrestorability do not appear well supported by research. In particular, statutorily specified evaluative procedures are overly dependent on prediction in some instances and allow an unnecessarily long restoration period in others. In the present article, we propose and describe an alternative approach—the Demonstration Model—that would address both challenges, providing a more consistent and standard approach to assessing CST and the possibility that a defendant may not recover needed capacities within the foreseeable future. Implementation of this approach can potentially guide restoration planning and intervention, decrease unsupported reliance upon prediction in favor of observing and documenting the results of selected interventions, and provide legal decision-makers with clearer and more transparent evidence, while acknowledging the liberty interests of IST defendants set forth in Jackson.