This is an always-sensitive topic, not least because of the way in which the concept of deception is misused by clinicians. If you listen to clinicians talk about this idea, particularly in occupational health and disability-assessments, you’ll typically hear about how often there is fabrication of symptoms and how people try to ‘game’ the system. Again typically, this is often by clinicians who aren’t qualified to differentially assess malingering and who have failed to recognise their own biases arising from their employment by bodies for whom negating complaints’ validity helps increase their financial profits or, at least, minimise any losses and off-sets; they wade in where angels would tread very, very carefully. They will also rarely, if ever, talk about how often patients or clients try to hide symptoms. When you ask about the procedures they use to come to their conclusions, you’ll often find that they give opinion outside their area of expertise (commonly, again, with physicians), fail to use methods that are essential in the differential assessment leading to such a conclusion, and rely on ‘clinical experience’ and ipse dixit statements about the length of their expertise. We saw this, again, in the opinion provided by the disgraced Profs David Southall and Sir Roy Meadow.
Let’s get some clarity first, particularly about malingering: as discussed by a world-authority on this topic, Rogers (2012), this relates to either a conscious fabrication of symptoms or a conscious exaggeration of symptoms in such a way as to put one over the threshold of non-significant to clinically significant or to increase the severity from clinically minor/moderate to clinically severe. Malingering is not a monolithic concept, for these various possibilities have significantly different motivations and different meanings for clinicians and for the Court.
It is often unusually difficult to conclude that someone is malingering in the sense of fabricating symptoms. In my assessment of possible malingering, I typically use six psychometric measures in tandem with a full differential diagnostic assessment with as much contextual information I can gather. This usually provides me with enough information to determine whether malingering may be occurring. Further, while these types of measures are essential, they have their limitations; understanding those limitations is also essential, as is identifying the applicability of those limitations to the individual being assessed with the particular measure. Firstly, obviously, is the applicability of the measure on cultural grounds: the best measures are from North America and some assume knowledge that is common in American culture but not in any other. So you have to alter the cutoff, but how you do that needs to be defensible, as we’ve already seen elsewhere. You also need to be able to bomb-proof your reliance on a metric—such as the Rey 15-item test: you have to be able to assure the Court that the metric has a reference-group that includes people with the complaint in question (e.g., amnesia—and, no, it doesn’t have such a reference-group), that its sensitivity to detecting the condition is high, but that its specificity is also high enough and that the chance of including someone incorrectly is therefore low. With the Rey 15-item test, over a quarter of patients with genuine claims are identified as malingering using this test, which is far too unreliable therefore on its own. You then have to assure the Court that you have used the correct cut-off scores. As an instructing party, if your Expert chooses not to rely heavily on one measure (a wise move), then what is the preponderant indication of the hopefully-convergent evidence—and how is the conclusion reached? An informed and critical eye is essential; failing that, a brief opinion from a consulting (rather than testifying) expert can save, literally, years of litigation.
There are also some conditions with a particularly increased risk of being falsely classified as malingering. For example, trauma-survivors often have elevated scores on “fake bad” invalidity-scales, without apparent intention to malinger (Briere, 2004; Rogers et al., 2012). Klotz Flitter et al. (2003) found that in a clinical sample of adult, sexual-abuse survivors, 20% had an MMPI-2 F scale T score of more than 100. In that study, elevated F scores were predicted by participants’ concurrent endorsement of dissociation, post-traumatic stress, and depression. In the instance that a person has both mental trauma leading to PTSD, and particularly dissociative symptoms, as well as a physical injury from a traumatic accident, it can be that they have any number of related disorders, any of which can be thought to be malingering/faking it but are actually due to a related mental disorder, such as a Conversion disorder or a Somatoform disorder. Differential diagnosis is complex, but it is essential to come to the correct conclusion based on good objective evidence—e.g., psychometrics—in tandem with good clinical judgement.
In summary, always be doubly careful if your Expert concludes that “findings are consistent with malingering” if s/he has not used psychometrics or can not justify very clearly which ones have been used and how that and the interviewing has been done. I have found that some clinicians act in a biased manner and contravene interviewing-standards when instructed by prosecution, even to the point of bullying the interviewee; understanding interviewing techniques and methods can lead to a robust cross-examination and the effective dismissal of expert evidence by the Court. Finally, if the issue is one of claimed cognitive losses, then it is always wise to require effort-testing to be done too, which involves performance-based methods of assessment. However, if the Claimant is reporting solely emotional issues and your ‘Expert’ has included effort-testing to determine malingering, as I have seen a number of psychiatric physicians do, then please find a new Expert quickly: it’s a sure way to have your Expert’s evidence shot down—and rightly so.
Briere J (2004). Psychological assessment of adult post- traumatic states: Phenomenology, diagnosis, and measurement (2nd ed.). Washington, DC: American Psychological Association.
Klotz Flitter J, Elhai J, Gold S (2003). MMPI-2 F scale elevations in adult victims of child sexual abuse. Journal of Traumatic Stress, 16, 269-274.
Rogers R., & Bender, S. D. (2012). Clinical Assessment of Malingering and Deception, Third Edition. New York: Guilford Press.
Rogers R, Gillard N, Wooley C, Ross C (2012). The detection of feigned disabilities: the effectiveness of the Personality Assessment Inventory in a traumatized inpatient sample. Assessment, 19(1):77-88. doi: 10.1177/1073191111422031.