Psychological Aspects of Malingering in Criminal Matters

Transcription

1 Psychological Aspects of Malingering in Criminal Matters Eric Y. Drogin, J.D., Ph.D., ABPP Harvard Medical School Department of Psychiatry BritishSocietyof Criminology British Society of Criminology Wales Seminar Series 19 November

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3 When conducting psychological evaluations in criminal cases, we must ask ourselves Is it just faking or something more? 3

4 Supplemental Materials Eric Y. Drogin, When I Said That I Was Lying, I Might Have Been Lying : The Phenomenon of Psychological Malingering. g 25 Mental & Physical Disability L. Rep. 711 (2001). 4

5 Diagnostic and Statistical Manual of Mental Disorders Text Revision DSM-IV-TR Published 2000 Publisher: American Psychiatric Association Professional consensus based on work groups and field trials Standard and comprehensive, yet neither definitive nor final 5

6 Malingering: DSM-IV-TR Additional Conditions That May Be a Focus of Clinical Attention Malingering: V65.2 Malingering: DSM-IV-TR The essential feature of Malingering is the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining i financial i compensation, evading criminal prosecution, or obtaining drugs. 6

7 Malingering: DSM-IV-TR Under some circumstances, Malingering may represent adaptive behavior for example, feigning illness while a captive of the enemy during wartime. Malingering: DSM-IV-TR Malingering g should be strongly suspected ed if any combination of the following is noted: (1) Medicolegal context of presentation (e.g., the person is referred by an attorney to the clinician for examination); (2) Marked discrepancy between the person s claimed stress or disability and the objective findings; 7

8 Malingering: DSM-IV-TR (3) Lack of cooperation during the diagnostic evaluation and in complying with the prescribed treatment regimen; and (4) The presence of Antisocial Personality Disorder. 8

9 International Classification of Diseases 10 th Revision ICD-10; Mental & Behavioural Disorders range F00-F99 Endorsed: 1990 Applied: 1994 Current Version: 2007 Professional consensus based on work groups and field trials Standard and comprehensive, yet neither definitive nor final International Classification of Diseases (ICD-10) Mendelson, G. M., & Mendelson, D. M. (2004). Malingering pain in the medicolegal context. Clinical Journal of Pain, 20(6),

10 International Classification of Diseases (ICD-10) In the current edition of the International ti Classification of Diseases (ICD-10), malingering similarly is not included among the diagnosable mental and behavioral disorders but is listed among factors influencing health status and contact with health services. In ICD-10 10, malingering (conscious simulation) is given the code Z76.5 and includes persons feigning illness with obvious motivation. Historical Perspectives 10

11 Kurt Schneider ( ) First-rank symptoms of Schizophrenia: -- audible thoughts -- thought insertion -- thought broadcasting Historical Perspectives [excerpt...] Eric Y. Drogin, Malingering and Behavioral Science: A Jurisprudent Therapy Perspective, 119 Bulletin of Law, Science & Technology 4 (2002). 11

12 Historical Perspectives Prior to the inception of the Freudian psychoanalytic movement in the early twentieth century, the various nervous disorders were typically associated with malingering as a matter of course (McMahon, 1984). Historical Perspectives The growing realization that unconscious factors played a significant factor in mental illness did not appreciably dispel suspiciousness concerning psychic injuries claimed during the First World War (Cooter, 1999). 12

13 Historical Perspectives During the Second World War, the potential ti impact of malingering i was recognized to the extent that British psychological warfare operatives, drawing upon commission psychiatric research, were distributing a handbook teaching Germans how to malinger and trick their doctors into a spell of sick leave... Sickness Saves 13

14 Historical Perspectives The success of this operation was reflected in the sincerest form of flattery: The German authorities were so impressed with [our] handbook that they had it translated into English and shot it into the British and American lines (Delmer, 1962). Malingering: DSM-IV-TR Malingering differs from Factitious Disorder in that the motivation for the symptom production in Malingering is an external incentive, whereas in Factitious Disorder external incentives are absent. Evidence of an intrapsychic need to maintain i the sick role suggests Factitious Disorder. 14

15 Factitious Disorder: DSM-IV-TR Factitious Disorders With Predominantly Psychological Signs and Symptoms (300.16) With Predominantly Psychological Signs and Symptoms (300.19) With Combined Psychological and Physical Signs and Symptoms (300.19) Factitious Disorder: DSM-IV-TR (A) Intentional production or feigning of physical or psychological signs or symptoms; (B) The motivation for the behavior is to assume the sick role; (C)External incentives for the behavior (such as economic gain, avoiding legal responsibility, or improving physical wellbeing, as in Malingering) are absent. 15

16 Factitious Disorder: DSM-IV-TR Individuals with Factitious Disorder usually present their history with dramatic flair, but are extremely vague and inconsistent when questioned in greater detail. Factitious Disorder: DSM-IV-TR When confronted with evidence that t their symptoms are factitious, individuals with this disorder usually deny the allegations or rapidly discharge themselves against medical advice. Sometimes, they will be admitted to another hospital soon after. Their repeated hospitalizations may take them to numerous cities, states, and countries. 16

17 Malingering: DSM-IV-TR Malingering is also differentiated from Conversion Disorder and other Somatoform Disorders by the intentional production of symptoms and by the obvious, external incentives associated with it. In Malingering i (in contrast to Conversion Disorder), symptom relief is not often obtained by suggestion or hypnosis. Somatoform Disorders: DSM-IV-TR Conversion Disorder (300.11) Unexplained symptoms or deficits affecting voluntary motor or sensory function that suggest a neurological or other general medical condition. 17

18 Somatoform Disorders: DSM-IV-TR Somatization Disorder (300.81) Begins before age 30 years, extends over a period of years, and is characterized by a combination of pain, gastrointestinal, sexual, and pseudoneurological symptoms. Somatoform Disorders: DSM-IV-TR Pain Disorder (307.80, ) Pain as the predominant focus of clinical attention. Psychological factors are judged to have an important role in its onset, severity, exacerbation, or maintenance. 18

19 Somatoform Disorders: DSM-IV-TR Hypochrondriasis (300.7) Preoccupation with the fear of having, or the idea that one has, a serious disease based on the person s misinterpretation of bodily symptoms or bodily functions. Somatoform Disorders: DSM-IV-TR Body Dysmorphic Disorder (300.7) Preoccupation with an imagined or exaggerated defect in physical appearance. 19

20 Ganser s Syndrome Ganser's syndrome is usually sudden in onset and, like malingering, i seems to arise in response to an opportunity for personal gain or the avoidance of some responsibility. The patient will offer nearly correct replies when asked questions about facts of common knowledge, such as the number of days in a year, the number of months in a year, etc. 20

21 Ganser s Syndrome To such questions, the patient may respond by stating ti that t there are 360 days in a year, 11 months in a year, 94 for the result of subtracting seven from 100, and that 21 is the product of four times five. These persons appear to have no difficulty in understanding questions asked, but appear to provide incorrect answers deliberately. The Evaluation Process... 21

22 What are we trying to do? A certain percentage of cases will turn out to be ones in which h your role is presumed to be that of human lie detector, as though by a simple examination of the plaintiff you can supposedly determine the truth of the claim. In general, such cases should be reality tested for the attorney. Gutheil, The Psychiatrist as Expert Witness (1998) Projective Assessment 22

23 Projective Assessment Projective Assessment Such techniques, while commonly employed, have fared poorly in the forensic research literature. 23

24 Projective Assessment For example, one study found that t when undergraduate students were encouraged to fake psychosis on the Rorschach Ink Blot Test, judges who were Fellows of the Society for Personality Assessment were unable to distinguish these protocols from those generated by severely mentally ill patients (Albert et al., 1980). Projective Assessment Another study concluded that malingered Rorschach protocols did not differ from valid ones in the variables typically assumed to distinguish psychotic from non-psychotic subjects (Ganellen et al., 1996). 24

25 Objective Assessment Minnesota Multiphasic Personality Inventory (MMPI-2) 25

26 Minnesota Multiphasic Personality Inventory (MMPI-2) 567-item objective personality testt Revised version: basic clinical scales Countless supplementary scales MMPI-2 41-Year-Old Caucasian Male Charge: Sodomy 26

27 MMPI-2 28-Year-Old Caucasian Male Charges: Attempted Murder, Kidnapping 27

28 Millon Clinical Multiaxial Inventory (MCMI-III) 28

29 Millon Clinical Multiaxial Inventory (MCMI-III) 175-item objective personality test Current version: scales (plus 3 validity scales) MCMI-3 31-Year-Old African-American Male Charge: Rape 29

30 MCMI-3 36-Year-Old Caucasian Female Charge: Assault 30

31 dis sim u la tion Concealment of the truth about a situation, especially about a state of health or during a mental status examination, as by a malingerer or someone with a factitious disorder. Origin: L. Dissimulatio, fr. Dissimulo, to feign, fr. Dis, apart, + simillis, same 31

32 Clinical Assessment of Malingering and Deception, 3 rd ed. (Rogers, 2008) Dissimulation Response Styles Malingering refers to conscious fabrication or gross exaggeration of physical and/or psychological symptoms for an external goal. It is distinguished from Factitious Disorders in that the malingered presentation extends beyond a patient role and is understandable in light of the patient s circumstances. 32

33 Dissimulation Response Styles Defensiveness is the polar opposite of malingering. i It refers to the conscious denial or gross minimization of physical and/or psychological symptoms. This term is derived from extensive psychometric research on patients who present themselves in the most favorable light. Dissimulation Response Styles Irrelevant responding refers to a response style in which h the individual id does not become psychologically engaged in the assessment process. The given responses are not necessarily related to the contents of the clinical inquiry. This process of disengagement, almost most prevalent in psychological testing, is also observed in clinical interviews. 33

34 Dissimulation Response Styles Random responding is a subset of irrelevant responding in which h a random pattern can be identified. This response style is observed most frequently on measures with a forced choice format. Although chiefly studied with the MMPI and other multiscale inventories, it may occur on any psychometric measure. 34

35 Dissimulation Response Styles Honest responding refers to a response pattern reflecting a patient s t sincere attempt to be accurate in his or her responses. Factual inaccuracies must therefore be evaluated in light of the patient s understanding and perceptions. 35

36 Dissimulation Response Styles Hybrid responding refers to any combination of the previous response styles. Although clinically observed, the incidence of hybrid response styles remains completely unknown. An example of hybrid responding drawn from forensic evaluations is the male pedophile who is honest regarding psychopathology and defensive regarding sexual behavior. Et tu, Brute? 36

37 [Report Excerpt] For example, he claimed not to know his date of birth, the names of his parents, whether or not he had any brothers or sisters, where he might have lived at any point in his life, whether he was currently either more or less than five years of age... [Report Excerpt]... whether he had ever been outdoors, whether Wednesday d was one of the days of the week, what clothes might be, what a letter might be, what sleep might mean, the names of any foods he had ever eaten, or whether we were currently meeting underwater. 37

38 [Report Excerpt] Such unsatisfactory results underscore the complicated nature of the situation ti in which h counsel and the court now find themselves, as reflected in the question: just because this defendant may be faking or exaggerating a disability, does that make him competent to stand trial? [Report Excerpt] I have addressed this notion previously in an article entitled d When IS Said idthat tiw Was Lying, I Might Have Been Lying : The Phenomenon of Psychological Malingering, 25 Mental & Physical Disability L. Rep. 711 (2001)... 38

39 [Report Excerpt] It is important to emphasize that the presence of malingering, even when accurately diagnosed, does not automatically mean that litigants are not experiencing sufficient impairment to meet a requisite legal standard. [Report Excerpt] Consider, for example, the situation of a capital murder defendant whose legitimate mental illness is accompanied by limited intellectual ability and dependent personality characteristics. 39

40 [Report Excerpt] Spurred on by the admonition of his lawyer not to hold anything back about his condition, and encouraged by his cellmate to tell the doctor how crazy you are, so they won t give you the death penalty, this individual pursues his own agenda when examined by a forensic psychiatrist. [Report Excerpt] When he goes out of his way to endorse every fanciful hallucination he can fabricate, the defendant is properly assigned a diagnosis of malingering. 40

41 [Report Excerpt] Lost in the shuffle, however, are the paranoid delusions he was actually suffering at the time of the crime, amounting to a state of diminished capacity that, if detected, would have reduced his murder charge to one of manslaughter. [Report Excerpt] The conclusion that a person manufacturing or exaggerating symptoms of mental illness or disability must therefore be free of mental illness depends upon the acceptance of one or both of two inherently flawed propositions. 41

42 [Report Excerpt] The first is that persons must lack mental illness to make false assertions; the second, that persons with mental illness always tell the truth. Malingering = Competent to Stand Trial? Malingering = Criminally Responsible? Malingering = Guilty? 42

43 [Report Excerpt] Unfortunately, in my opinion, Mr. XXXX s competency status t remains unclear at the present time. What is clear is that he is decidedly not displaying the capacity to participate rationally in [his] own defense, pursuant to the requirements of KRS I do not see how counsel can undertake to provide effective representation under these circumstances. 43