Psychiatric Report

The Assessment of Malingering

“There were no real demons, no talking dogs, no satanic henchmen. I made it all up via my wild imagination so as to find some form of justification for my criminal acts against society” [“Son of Sam” serial killer David Berkowitz].

Deception is a frequent behaviour that occurs in day to day life. In the setting of the doctor-patient or lawyer-client relationship, self-disclosure is rarely complete and accurate and individuals are selective about how much they share with others.

Malingering has been defined by the American Psychiatric Association as “the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives”. Malingering itself is not considered to be a form of mental illness or psychopathology but although it can occur concurrently with mental illness.

According to DSM-IV-TR, malingering should be strongly suspected if any combination of the following factors is noted to be present: (1) medico-legal context of presentation; (2) marked discrepancy between the person’s claimed stress or disability and the objective findings; (3) lack of cooperation during the diagnostic evaluation and in complying with the prescribed treatment regimen; and (4) the presence in the patient of antisocial personality disorder (ASPD). However, criticism has been levelled against this criteria and some have suggested that they result in a misclassification rate of over 80%.

The distinction between malingering, factitious presentations and feigning is not always well understood. In contrast to malingering, factitious presentations are characterised by the intentional production or feigning of symptoms that is motivated by the desire to assume a “sick role”. Feigning is the deliberate fabrication or gross exaggeration of psychological or physical symptoms without any assumptions about its goals.

Malingering is important from a clinical and medico-legal perspective. In my own clinical practice, it is not uncommon to [...]

Fitness to Plead: The Pritchard Criteria

It is interesting that the question of the accused being unfit is dealt with using the 1836 criteria of R v. Pritchard. In Pritchard, the accused was deaf, unable to speak and was charged with bestiality.

In Pritchard the jury were directed that in order to be sane the accused must be, “Of sufficient intellect to comprehend the course of proceedings in the trial so as to make a proper defence, to know that he may challenge  any of you to whom he may object and to comprehend the details of the evidence.”

Expert witnesses who are instructed to examine the accused regarding fitness to plead must therefore address these criteria. The accused should have the ability to plead to the indictment, understand the course of the proceedings, to instruct a lawyer, to challenge a juror and to understand the evidence.

In John M(2003) the criteria were further expounded. The jury were directed that it was sufficient for the defence to persuade the jury on the balance of probabilities that any one of the following things was beyond the defendant’s capability: (1) understanding the charges; (2) deciding whether to plead guilty or not; (3) exercising his right to challenge jurors; (4) instructing solicitors and counsel; (5) following the course of proceedings; and (6) giving evidence in his own defence.

The criticism is that the Pritchard criteria set too high a threshold for a finding of unfitness to plead. The concern remains that there are significant numbers of mentally ill defendants who undergo trial and may be doing so unfairly.

7 Tips for Finding the Right Psychiatric Expert

In R v Turner (1975) 60 Cr. App. R. 80, Lawton LJ stated: “…the fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves; there is a danger that they think it does…Jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness are likely to react to the stresses and strains of life.”

The psychiatric expert witness is a witness who provides to the court a statement of opinion on any admissible matter calling for expertise by the witness and is qualified to give such an opinion; “An expert’s opinion is admissible to furnish the court with the scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary.” (R v Turner [1975] 1 All ER 70)

When instructing a psychiatric expert, it may be helpful to consider the following 7 tips:

1. Do you need an expert?

If a bench or jury is going to be able to decide upon the case by listening to or viewing the evidence and bringing to bear their own senses, knowledge and experience, then no expert is needed.

In my experience, it can be useful to have an initial conversation with the instructing professional to establish whether expert psychiatric evidence is likely to assist the Court. Of course, if it is unlikely to be helpful, valuable time and money can be saved.

2. When is an [...]