What is it about?

Once a defendant is deemed incompetent to proceed to trial, they are required to engage in competency restoration services to prepare them for their impending legal proceedings. Competency restoration helps aid criminal defendants in factually and rationally understanding the legal system and the facts of their case, as well as enhancing the defendant’s ability to rationally assist counsel in their defense. Most incompetent defendants are placed in a state hospital for restoration; after individuals are restored, they are returned back to their local jurisdictions to await future court proceedings. This paper discusses the ethical challenges of returning competent defendants back to their local jails, which have limited mental health care in comparison to hospital settings. These settings may increase a defendant’s likelihood of decompensation (i.e., regression toward incompetent to proceed). The Ethical Principles of Psychologists and Code of Conduct (APA, 2017) and Specialty Guidelines for Forensic Psychology (APA, 2013) were cited to highlight the responsibilities of psychologists and psychology trainees when working with defendants and the larger legal system.

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Why is it important?

In correctional settings, defendants are at risk of getting stuck in a cycle of decompensation and restoration. Defendants may be restored in a hospital, returned to a local jail, and then decompensate if mental health care is inadequate – in some cases, resulting in another finding of incompetence and necessitating another return to an inpatient setting for restoration. This cycle has several potential consequences. These might include increased length of trial, increased costs to the state and taxpayers, and high levels of distress or acute symptomology for the defendant. Additionally, most states face a significant backlog in their competency systems. There are lengthy waitlists to receive a competency evaluation, and, depending on the setting, even lengthier waitlists to engage in restoration services. The decompensation cycle described above can exacerbate this backlog. As such, reduction of the prevalence of decompensation may help mitigate the competency crisis that currently burdens the nation.


I hope this paper brings increased awareness to the issue of decompensation in correctional settings. We often celebrate when defendants are restored to competency, but the work does not, and should not, stop there. Restoration may be an end goal for the judicial proceedings at issue, but it does not necessarily equate to rehabilitation or healing. Competency concerns are most frequent for defendants with low-level misdemeanors (e.g., trespassing) who have not had access to mental health care or basic needs like shelter. Some legally-involved individuals should have the ability to heal and obtain necessary resources, rather than solely face punitive action, if we are to alleviate the competency crisis. The decompensation cycle highlights these challenges, as well as the ethical responsibilities of mental health and judicial officials involved.

Devrey Martin
University of Denver

Read the Original

This page is a summary of: Ethical considerations of competency restoration: The risk of decompensation in correctional settings., Psychology Public Policy and Law, May 2022, American Psychological Association (APA),
DOI: 10.1037/law0000356.
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