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 [...]

Mental Health Act: Nature or Degree of Mental Disorder

The Mental Health Act attaches great significance to the “nature or degree” of mental illness.  Any psychiatrist who has ever appeared before the First Tier Tribunal will be well aware of the importance of these terms in the Tribunal’s decision making.

In broad terms, ‘nature’ is the course of a disorder and the consequences of it while ‘degree’ is the presentation at that point in time.

The Explanatory Notes for the Mental Health Act 2007 note that “Case law has established that “nature” refers to the particular mental disorder from which the patient is suffering, its chronicity, its prognosis, and the patient’s previous response to receiving treatment for disorder. “Degree” refers to the current manifestation of the patient’s disorder (R v Mental Health Review Tribunal for the South Thames Region ex p. Smith [1999] C.O.D. 148).”

When undertaking assessments under the Mental Health Act in the community, in some cases the patient appears to be symptom free and there is little evidence of ‘degree’.  However, in some cases it is necessary to rely on the ‘nature’ of the disorder, particularly where there is an established diagnosis and where there would be risk to the patient or others if they were not treated.  Commenting on this very issue, Lady Justice Hale, said, “There are of course mental illnesses which come and go, but where there is a chronic condition, where there is evidence that it will soon deteriorate if medication is not taken, I find it impossible to accept that that is not a mental illness of a nature or degree which makes it appropriate for the patient to be liable to be detained in hospital for medical treatment if the evidence is that, without being detained in hospital, the [...]