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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 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

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 clinicians 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

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f the defendant has the motivation to exaggerate or fabricate symptoms or signs of mental illness, it behooves the psychiatrist to understand why.
the opinion of the evaluating psychiatrist, the defendant had the required state of mind or mens rea to be found guilty of the alleged offense. Escaping criminal liability and, therefore, potential incarceration is a common motivation to malinger. It may seem obvious upon first reflection that a defendant would want to be found not guilty due to insanity at the time of the alleged offense, but this is not always the case and likely results from an oft mistaken belief that defendants generally go free when there is such a finding. An understanding of the statutes where the pending criminal matter is being adjudicated can clarify this issue. As described in a previous piece, statutes deciding the fate of those found not guilty by reason of insanity vary from state to state and from era to era. Right now, in most municipalities, the laws are relatively restricting on such defendants, and it is not uncommon for a defendant found to be insane at the time the crime was committed to spend a minimum amount of time in a psychiatric hospital corresponding to the relevant incarceration period were he or she was found guilty of the alleged underlying offense. In such cases, determining the motivation of the defendant can be complex for several reasons. A defendant might prefer to go to prison to achieve the shorter period of freedom loss in a state where those found not-guiltyby-reason-of-insanity usually spend more time in a psychiatric hospital than the typical incarceration. In such a case, he or she might underreport current symptoms (note the distinction between this and malingering as defined above) and deny difficulties he or she was having at the time of the alleged crime. Alternatively, a defendant might misunderstand the law in the same jurisdiction and exaggerate or fabricate symptoms to convince the examiner that he or she has a mental illness and, therefore, is not guilty. Another common reason for exaggerating or fabricating such symptoms is for the potential to introduce in the mind of the trier of fact that circumstance should allow for mitigation and the application of lesser sentences if there is a conviction. Such complicated possibilities are also the case, for instance, when a request is made for a competence-tostand-trial evaluation. Motivation to malinger might not seem like such an important factor in such evaluations. Typically (although, again, statutes do vary) the criminal

is a legal proceeding involved. The fact that a legal proceeding relates to the evaluation raises an important issue, which cannot be separated from the task at hand. Legal proceedings in our system are, by their nature, adversarial (not all legal systems are such). The adversarial nature means that those involved generally partake in the process either to achieve some gain or avoid some loss. The fact that someone has arranged for an evaluation generally means that there is a potential gain if the evaluating psychiatrist reaches a certain conclusion at the end of the encounter and is able to convince the court that this is the correct finding. Were nothing to be potentially gained from the evaluation, an attorney or jurist would likely not request it. The hoped for outcome, and therefore the motivation to malinger, can differ depending on whether the evaluation is performed in a criminal or a civil setting.

MALINGERING IN CRIMINAL MATTERS

In criminal matters, the person being evaluated is usually the defendant in a case. The evaluation can be requested to ensure the rights of a criminal defendant are not violated or to determine if, in

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trial process is delayed while a defendant who is found to lack competence to stand trial is treated and restored to competence. But defendants often misunderstand the process and think that a finding that they are not competent means that the charges will be dropped. At the same time, attorneys sometimes feel that any evidence of mental illness, even if the illness does not interfere with the defendants competence to stand trial, will help achieve a better pleabargain offer or even get some of the charges dropped, and if the defendant has the motivation to exaggerate or fabricate symptoms or signs of mental illness it behooves the psychiatrist to understand why. One thing to consider when evaluating someone suspected of malingering is to directly explain the consequences of a finding of not competent. It is impressive to see the effect that the explanation of such a finding can have on a defendant. For instance, explaining to a defendant that he or she might

go to a locked inpatient unit for several weeks until they are able to function in court, but that the process will then move along right where things left off at the time of the interview can create a dramatic change in the presentation and expose malingering. The examiner needs to be careful, however, not to have the truly ill underreport their symptoms.

MALINGERING IN CIVIL MANNERS

There are an infinite number of possible civil actions and claims that can be made in this part of our legal system, and there is no telling what creative members of our society and the bar will claim in such cases. Rather than attempt to cover them all, we will discuss one common area where malingering occurs that covers several types of claims, such as discrimination and negligence, as these types of claims generally revolve around suffering damages due to the direct actions of another. In such cases, there is tremendous incentive, typically

financial, for plaintiffs to claim they are suffering from an illness (for instance posttraumatic stress disorder) or that they suffered emotional damage when it is not actually the case. In civil cases, the damages are often based on costs to cover the need for future medical care as well as the significance of the past injury, so the more severe the damage or resulting illness the better the argument for increased damages and, therefore, a larger economic reward for the plaintiff and a corresponding increase in the secondary gain, which would cause one to malinger.

DETECTING MALINGERING
The detection of malingering has been the subject of numerous studies, articles, and books. An ideal outcome of an interview where malingering is a possibility is to have the person being interviewed admit he or she is fabricating symptoms. Although not scientifically tested, some of our experience indicates that multiple interviews over a period of time

n the criminal setting, even if the subject of a competence-to-stand-trial interview is exaggerating deficits, it does not mean he or she is competent to stand trial! This is why the clinical interview and collateral information are vital to any conclusion.

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increase the likelihood of such admissions, but it is not clear if this is purely related to amount of time spent with the person or other factors, such as number of encounters or length of time between them. Unfortunately, it is unusual for people to admit they are faking symptoms. There has been much discussion over the years about the general validity of clinicians conclusions solely based on an interview. In our experience, interviews can at times provide important information about whether or not malingering is occurring but is often not conclusive. Ideally, there is collateral information available from sources whose interests are not aligned with those of the person being evaluated and that proved useful insight. In addition to the interviews and collateral, there are of course a variety of available methods that have been investigated as screens for malingering. These include tests developed by Pritchard, Hiscock, and Frederick. It is crucial to remember, however, that even if a screen for malingering is positive this does not mean the person being evaluated does not meet the criteria for the question at hand. For instance, in the criminal setting, even if the subject of a competence-tostand-trial interview is exaggerating deficits, it does not mean he or she is competent to stand trial! This is why the clinical interview and collateral information are vital to any conclusion. It is obviously not possible to capture in a short piece such as this one all of the possible

scenarios and motivations that underpin those scenarios but we hope we have provided enough of an introduction to allow the reader who is new to forensic psychiatric evaluations to think through a referralhe or she might receive. A good evaluation should incorporate an analysis of such motivations in an effort to assist in determining whether or not malingering is taking place.
All authors are from Yale University School of Medicine, New Haven, Connecticut. ADDRESS CORRESPONDENCE TO: Seth Feuerstein, MD, JD New Haven Forensics 234 Church Street New Haven, CT 06510 Phone: (203) 773-0478 E-mail: feuerstein@newhavenforensics.com

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