Malingering 1998

1998 saw clinicians and theorists trying to come to grips with MOTIVATION and AWARENESS in characterising (legal) impairment that cannot be explained by (legal) handicap.

1998 saw clinicians and theorists trying to come to grips with MOTIVATION and AWARENESS in characterising (legal) impairment that cannot be explained by (legal) handicap. The Diagnostic and Statistical Manual, 4th Edition (DSM-IV) defines malingering as

the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding work, obtaining financial compensation, evading criminal prosecution or obtaining drugs.

Straightforward as this definition may seem to litigators, the medical and psychological community continue to struggle with the concepts of intentional and false in this context.

PRACTICE POINT

Secondary gain is universal in disability and sick role, and does not imply malingering

In an essay on the epistemology (how we know what we know) of mental illness, psychiatrist

Lawrence Reznek proposes¹ that (t)he most important epistemological problem in psychiatry is the detection of malingering.

He points out that there is no objective criterion to validate the existence of any psychiatric "diagnosis", since all the constructs are merely clusters of (subjective) symptoms and observed behaviours, that is, syndromes not diseases. Since both symptoms and behaviours can be fabricated, clinicians have particular difficulty detecting malingering of mental illness.

PRACTICE POINT

Psychiatric disorders, including Chronic Benign Pain, are not diseases and have neither known causes nor objective tests

Such difficulty extends to the common Personal Injury varieties of Somatoform Disorder including Chronic Benign Pain and its variants such as Fibromyalgia Syndrome and Myofascial Pain Syndrome.

Clinical psychologists continue to refine tests for malingering of cognitive deficits, where untutored malingerers have erroneous beliefs about the differential effects of organic brain damage on memory and skills.

Thus, for instance, patients who malingered late whiplash scored significantly worse than patients cognitively impaired by severe Traumatic Brain Injury on recognition tests popularly and incorrectly assumed to depend on memory. The majority of late whiplash litigants underperformed during short-term memory and word recall testing, compared with less than a third of nonlitigants ². "Underperformance" is measured against abilities in other tests and indicates a conscious or unconscious motivation to perform below competency.

PRACTICE POINT

When a finding of malingering is likely to be influenced by the results of psychological testing, counsel should cross-examine on the documented validity of each test

Clinicians have difficulty distinguishing between Malingering and Somatoform Disorder because a) mental disorders are not diseases in the sense of having an objective pathological basis, and b) awareness of secondary gain is on a continuum rather than being either present or absent. Both psychologists and physicians continue to grapple with the concepts of Malingering, Secondary Gain and Somatoform Disorder for diagnostic and therapeutic purposes and their debate inevitably has medicolegal fall-out.

A 1995 US paper ³ reviewed evidence for the usefulness of secondary gain, a concept that originated in Freudian psychoanalysis. The authors found overall empirical support for the idea, but conflicting results from some of the previous research studies. In keeping with their call for future research, an English psychologist found ⁴ that hypochondriacal concerns were mainly associated with a desire for independence, to avoid help, whereas report of bodily symptoms was related to dependence, desire to gain the attention and help of others (secondary gain).

The legal dualism of either malingering or not malingering does not fit comfortably with the psychological proposition ⁴ that a genuine disorder lies at the centre of a continuum between faking bad (malingering) on the one hand and, on the other, faking good (defensiveness), as for instance when a worker covers up cognitive deficits to maintain employment.

Canadian physician Dr Robert Ferrari and forensic psychologists Oliver Kwan and Jon Freil are blurring ⁶ the previous tortious distinction between aware malingering and unaware somatisation with the terminology preconscious, meaning "just beneath our level of awareness and easily brought into awareness". They propose as a useful model the 33 year-old equations,

Personality difficulties + Troubled life situation = Unacceptable disability
Unacceptable disability + Accident = Acceptable disability