Malingered Mental Disorder in Criminal Cases

• Author: Angus McDonald
• Pages: 371-388

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CHAPTER 19

Malingered Mental Disorder

in Criminal Cases

Angus McDonald

I. INTRODUCTION

Malingered mental or physical illness is an ancient and enduring phenomenon. References to it were

made as long ago as 970 BCE when King David feigned madness in order to avoid being captured and

killed by King Achish. In the Greek and Roman eras there were numerous instances of people feigning

illness and engaging in self-mutilation to avoid military service.

In the eleventh century, Godfrey of Bouillon, Ruler of the Kingdom of Jerusalem, was determined to

prove that malingering existed. He commanded anyone who claimed to be ill to appear before the courts

to engage in trial by battle and to have a medical examination. e court hypothesized that there were

circumstances in which “some not incapacitated would wish to be believed so” (Brittain, 1966).

Being able to distinguish malingering from true mental illness continues to be a signicant issue

for the forensic psychiatrist and the courts today. Malingering is potentially relevant in any psychiatric

patient; however, the consequences of malingering have signicance in the forensic context that does not

exist in the treatment relationship. In the latter, the psychiatrist can accept the malingerer’s descriptions

of his condition at face value (Resnick, 1984). In the forensic setting, successful malingering can seriously

impact on a judicial decision either in the civil or the criminal context.

In this chapter we will explore the implications of malingering in the criminal setting. Malingering

in the civil context is examined in Chapter 52: Malingered Mental Illness in Compensation Cases.

II. MALINGERING: PSYCHIATRIC DEFINITION

e D S M- IV-TR (APA, 2000) denes malingering as the fabrication or gross exaggeration of physical

and/or psychological symptoms to reach a goal such as avoiding military duty, evading crimina l pros-

ecution, or obtaining drugs.

e term “malingering” subsumes a number of behaviours and contexts:

• simulation (active malingering): feigning symptoms that do not exist;

• dissimulation: distorting and misrepresenting psychological symptoms, including disavowing, con-

cealing, or minimizing real symptoms. Although this latter form of dissimulation appears to be the

converse of malingering, both share the common goal of misleading an examiner by impression

management;

• Pure malingering: pretending to have a condition or disease that does not exist at all; and

• partial malingering: conscious exaggeration of pre-existing symptoms.

Aside from the dierent permutations of malingering directly, there are the following associated categories:

• factitious disorder: the voluntary creation of symptoms for the primary purpose of becoming a pa-

tient (i.e., the person is not seeking economic gain or seeking to evade legal responsibility);

Angus McDonald

• False imputation: ascribing actual symptoms to a cause that the subject knows has no relationship to

the symptom (Resnick, 1997; LeBourgeois, 2007); and

• Ganser syndrome: a condition described as being on a continuum between a dissociative and a psy-

chotic disorder, or, alternatively, in the middle ground between a factitious disorder and malingering.

Ganser syndrome has been associated with a twilight state, memory disturbances, approximate an-

swers (“talking at cross-purposes”), the sudden appearance and disappearance of symptoms, and the

presence of hysterical features. Ganser syndrome is also considered a rare variation of dissociative

disorder and when present, is usually a response to some stressful event. It is sometimes referred to

as nonsense syndrome, balderdash syndrome, or prison psychosis. is syndrome is exhibited most

oen by prison inmates in order to gain leniency from court or prison ocials.

III. MALINGERING IN CRIMINAL LAW CONTEXTS

Malingering should be distinguished from lying more generally. Malingering is specically lying about

having a condition or a series of symptoms where the presence of the condition or symptoms will ma-

terially benet the individual. An example of malingering in the cri minal context is an accused who lies

about having no memory of a violent act he is alleged to have committed. e lie constitutes malingered

amnesia and is undertaken precisely because the accused believes that if he suers from amnesia he will

either avoid prosecution for the oence or his sentence will be reduced as a result of the amnesia.

Within the criminal context, malingering must be distinguished from the situation where an evalu-

ating psychiatrist concludes that an accused suers from a mental illness and but for the illness would

not likely have committed the oence. In this latter case, the accused himself has no role to play in iden-

tifyi ng the mental health issue; it is proposed and supported by the mental health professional: this is not

malingering. An example of this might be where an evaluating psychiatrist concludes that an accused

man committed an oence while suering from a post-traumatic stress disorder and had the disorder

not been present he would likely not have committed it. Claims of lack of criminal responsibility oen

derive from an expert’s evaluation of the accused person’s personality and/or impulse control, or from

his or her capacity to form intent (or lack thereof) because of intoxication, organic decits, or mental ill-

ness. ese claims do not constitute malingering, unless the patient contributes to these interpretations

by faking or exaggerating symptoms for his or her own purposes.

Malingering in the context of forensic evaluations for criminal matters is relatively uncommon but

by no means rare. Rogers and colleagues (Rogers et al., 1994; Rogers et al., 1998) conducted large-scale

surveys of more than 500 forensic experts, which suggested that malingering is not rare in either forensic

or clinical settings. e public perception that false insanity defences are a major problem is contradicted

by the fact that fewer than one percent of murder trials include psychiatric testimony at all. Even relative-

ly high estimates of malingering suggest that only about 20 percent of forensic psychiatric examinations

reveal evidence of malingering (Rogers, 2008). Of course, successful malingering will not be detected,

and consequently will not be included in such data.

IV. DIAGNOSING MALINGERING

Clinical interviews alone cannot determine a patient’s honesty or the veracity of that person’s claims.

Clinicians should be clear about what symptom(s) they suspect is(are) being malingered.

Within the criminal context, malingering should be considered where there is no objective data

supporting the described condition, where the patient has been markedly uncooperative, or where the

patient has an antisocial personality disorder. e malingering in this context would have as its aim the

mitigation of the accused person’s disposition by the justice system.