Malingering
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[DECEMBER] Psychiatry 2005 25 A s an introduction to the topic of malingering, a review of the criteria generally used by psychiatrists to define malingering that is derived from the DSM-IV makes sense. In our experience, malingering is sometimes grouped by clinicians with factitious and somatoform disorders. It is important to remember the key distinction between malingering and those disorders: in malingering the subject is conscious of the secondary gain. You may be aware that while factitious disorders involve the awareness of the complaining person that the symptoms are not real, this class of diagnosis differs because the individual is without knowledge of the reason for their fabrication. In somatoform disorders the person is not aware of the ‘fake’ nature of the symptoms or the driving force. WHY MALINGERING IS PARTICULARLY RELEVANT TO FORENSIC PSYCHIATRY AND FORENSIC EVALUATIONS Malingering is not absent from general psychiatric practice. This makes sense when we consider that patients have opportunity for secondary gain generally, for instance, when they come to a clinician’s office and are seeking narcotics for an addiction rather than for pain or in an effort to gain disability benefits or reimbursement. Forensic psychiatric practice and evaluations, however, are unique when compared to traditional clinical evaluations because from the outset the psychiatrist is aware that there [forensic f i les] Malingering and Forensic Psychiatry by Seth Feuerstein, MD, JD; Vladimir Coric, MD; Frank Fortunati, MD, JD; Steven Southwick, MD; Humberto Temporini, MD; and Charles A. Morgan, MD
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Transcript of Malingering
[ D E C E M B E R ] Psychiatry 2005 25
A s an introduction to thetopic of malingering, areview of the criteria
generally used by psychiatriststo define malingering that isderived from the DSM-IV makessense. In our experience,malingering is sometimesgrouped by clinicians withfactitious and somatoformdisorders. It is important toremember the key distinctionbetween malingering and thosedisorders: in malingering thesubject is conscious of thesecondary gain. You may beaware that while factitiousdisorders involve the awarenessof the complaining person thatthe symptoms are not real, thisclass of diagnosis differsbecause the individual iswithout knowledge of thereason for their fabrication. Insomatoform disorders theperson is not aware of the ‘fake’nature of the symptoms or thedriving force.
WHY MALINGERING ISPARTICULARLY RELEVANT TOFORENSIC PSYCHIATRY ANDFORENSIC EVALUATIONS
Malingering is not absentfrom general psychiatricpractice. This makes sensewhen we consider that patientshave opportunity for secondarygain generally, for instance,when they come to a clinician’soffice and are seeking narcoticsfor an addiction rather than forpain or in an effort to gaindisability benefits orreimbursement. Forensicpsychiatric practice andevaluations, however, areunique when compared totraditional clinical evaluationsbecause from the outset thepsychiatrist is aware that there
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Malingering and ForensicPsychiatry
by Seth Feuerstein, MD, JD; Vladimir Coric, MD; Frank Fortunati, MD, JD; Steven Southwick, MD;
Humberto Temporini, MD; and Charles A. Morgan, MD
Psychiatry 2005 [ D E C E M B E R ]26
is a legal proceeding involved.The fact that a legal proceedingrelates to the evaluation raisesan important issue, whichcannot be separated from thetask at hand. Legal proceedingsin our system are, by theirnature, adversarial (not all legalsystems are such). Theadversarial nature means thatthose involved generally partakein the process either to achievesome gain or avoid some loss.The fact that someone hasarranged for an evaluationgenerally means that there is apotential gain if the evaluatingpsychiatrist reaches a certainconclusion at the end of theencounter and is able toconvince the court that this isthe correct finding. Werenothing to be potentially gainedfrom the evaluation, an attorneyor jurist would likely notrequest it. The hoped foroutcome, and therefore themotivation to malinger, candiffer depending on whether theevaluation is performed in acriminal or a civil setting.
MALINGERING IN CRIMINALMATTERS
In criminal matters, theperson being evaluated isusually the defendant in a case.The evaluation can berequested to ensure the rightsof a criminal defendant are notviolated or to determine if, in
the opinion of the evaluatingpsychiatrist, the defendant hadthe required ‘state of mind’ ormens rea to be found guilty ofthe alleged offense. Escapingcriminal liability and, therefore,potential incarceration is acommon motivation to malinger.
It may seem obvious uponfirst reflection that a defendantwould want to be found notguilty due to insanity at thetime of the alleged offense, butthis is not always the case andlikely results from an oftmistaken belief that defendantsgenerally go free when there issuch a finding. Anunderstanding of the statuteswhere the pending criminalmatter is being adjudicated canclarify this issue. As describedin a previous piece, statutesdeciding the fate of those foundnot guilty by reason of insanityvary from state to state andfrom era to era. Right now, inmost municipalities, the lawsare relatively restricting onsuch defendants, and it is notuncommon for a defendantfound to be ‘insane’ at the timethe crime was committed tospend a minimum amount oftime in a psychiatric hospitalcorresponding to the relevantincarceration period were he orshe was found guilty of thealleged underlying offense. Insuch cases, determining themotivation of the defendant can
be complex for several reasons.A defendant might prefer to goto prison to achieve the shorterperiod of freedom loss in a statewhere those found not-guilty-by-reason-of-insanity usuallyspend more time in apsychiatric hospital than thetypical incarceration. In such acase, he or she might under-report current symptoms (notethe distinction between this andmalingering as defined above)and deny difficulties he or shewas having at the time of thealleged crime. Alternatively, adefendant might misunderstandthe law in the same jurisdictionand exaggerate or fabricatesymptoms to convince theexaminer that he or she has amental illness and, therefore, isnot guilty. Another commonreason for exaggerating orfabricating such symptoms isfor the potential to introduce inthe mind of the trier of fact thatcircumstance should allow formitigation and the applicationof lesser sentences if there is aconviction.
Such complicatedpossibilities are also the case,for instance, when a request ismade for a competence-to-stand-trial evaluation.Motivation to malinger mightnot seem like such an importantfactor in such evaluations.Typically (although, again,statutes do vary) the criminal
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If the defendant has the motivation to exaggerateor fabricate symptoms or signs of mental illness, itbehooves the psychiatrist to understand why.
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trial process is delayed while adefendant who is found to lackcompetence to stand trial istreated and restored tocompetence. But defendantsoften misunderstand the processand think that a finding thatthey are not competent meansthat the charges will bedropped. At the same time,attorneys sometimes feel thatany evidence of mental illness,even if the illness does notinterfere with the defendant’scompetence to stand trial, willhelp achieve a better plea-bargain offer or even get someof the charges dropped, and ifthe defendant has themotivation to exaggerate orfabricate symptoms or signs ofmental illness it behooves thepsychiatrist to understand why.One thing to consider whenevaluating someone suspected ofmalingering is to directly explainthe consequences of a finding ofnot competent. It is impressiveto see the effect that theexplanation of such a findingcan have on a defendant. Forinstance, explaining to adefendant that he or she might
go to a locked inpatient unit forseveral weeks until they are ableto function in court, but that theprocess will then move alongright where things left off at thetime of the interview can createa dramatic change in thepresentation and exposemalingering. The examinerneeds to be careful, however,not to have the truly ill under-report their symptoms.
MALINGERING IN CIVILMANNERS
There are an infinite numberof possible civil actions andclaims that can be made in thispart of our legal system, andthere is no telling what creativemembers of our society and thebar will claim in such cases.Rather than attempt to coverthem all, we will discuss onecommon area where malingeringoccurs that covers several typesof claims, such as discriminationand negligence, as these typesof claims generally revolvearound suffering damages due tothe direct actions of another.
In such cases, there istremendous incentive, typically
financial, for plaintiffs to claimthey are suffering from an illness(for instance posttraumaticstress disorder) or that theysuffered emotional damage whenit is not actually the case. In civilcases, the damages are oftenbased on costs to cover the needfor future medical care as well asthe significance of the pastinjury, so the more severe thedamage or resulting illness thebetter the argument forincreased damages and,therefore, a larger economicreward for the plaintiff and acorresponding increase in thesecondary gain, which wouldcause one to malinger.
DETECTING MALINGERINGThe detection of malingering
has been the subject ofnumerous studies, articles, andbooks. An ideal outcome of aninterview where malingering is apossibility is to have the personbeing interviewed admit he orshe is fabricating symptoms.Although not scientificallytested, some of our experienceindicates that multipleinterviews over a period of time
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In the criminal setting, even if the subject of acompetence-to-stand-trial interview isexaggerating deficits, it does not mean he orshe is competent to stand trial! This is why theclinical interview and collateral information are
vital to any conclusion.
Psychiatry 2005 [ D E C E M B E R ]28
increase the likelihood of suchadmissions, but it is not clear ifthis is purely related to amountof time spent with the person orother factors, such as number ofencounters or length of timebetween them. Unfortunately, itis unusual for people to admitthey are faking symptoms.There has been much discussionover the years about the generalvalidity of clinicians’conclusions solely based on aninterview. In our experience,interviews can at times provideimportant information aboutwhether or not malingering isoccurring but is often notconclusive. Ideally, there iscollateral information availablefrom sources whose interestsare not aligned with those of theperson being evaluated and thatproved useful insight.
In addition to the interviewsand collateral, there are ofcourse a variety of availablemethods that have beeninvestigated as screens formalingering. These include testsdeveloped by Pritchard,Hiscock, and Frederick. It iscrucial to remember, however,that even if a screen formalingering is positive this doesnot mean the person beingevaluated does not meet thecriteria for the question athand. For instance, in thecriminal setting, even if thesubject of a competence-to-stand-trial interview isexaggerating deficits, it doesnot mean he or she iscompetent to stand trial! This iswhy the clinical interview andcollateral information are vitalto any conclusion.
It is obviously not possible tocapture in a short piece such asthis one all of the possible
scenarios and motivations thatunderpin those scenarios but wehope we have provided enoughof an introduction to allow thereader who is new to forensicpsychiatric evaluations to thinkthrough a referralhe or shemight receive. A goodevaluation should incorporatean analysis of such motivationsin an effort to assist indetermining whether or notmalingering is taking place.
All authors are from Yale UniversitySchool of Medicine, New Haven,Connecticut.
ADDRESS CORRESPONDENCE TO:Seth Feuerstein, MD, JD New Haven Forensics234 Church StreetNew Haven, CT 06510Phone: (203) 773-0478E-mail:[email protected]
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