MALINGERING IN FORENSIC NEUROPSYCHOLOGY

(LA SIMULACIÓN EN LA NEUROPSICOLOGÍA FORENSE)

CONFERENCES
TOPIC: FORENSIC NEUROPSYCHOLOGY

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Abstract

The focus of this session will on the importance of considering the issue of malingering as part of every forensic neuropsychological evaluation (i.e., neuropsychological evaluations that will be presented in a courtroom). The DSM-IV definition of malingering will serve as the basis for the discussion. Malingering is defined as the intentional production of false or grossly exaggerated physical, psychological or neuropsychological symptoms which are motivated by external incentives such as avoiding military service, avoiding work, obtaining drugs, evading criminal prosecution or obtaining financial compensation for alleged injuries. Malingering needs to be evaluated for and ruled out in any forensic neuropsychological examination. Current methods and specific procedures developed to identify the intentional production of false or grossly exaggerated memory complaints will be reviewed. Hypothetical cases will be used to illustrate the application of these procedures as part of an every forensic neuropsychological evaluation. To need to consider alternative psychological condition as causes of grossly exaggerated neuropsychological symptoms will be discussed. Finally, suggests will be offered for presenting neuropsychological test findings that appear to be due to issues related to malingering in both written reports and oral testimony before the trier of fact.
 
 

Resumen

El tema de esta conferencia será la importancia de considerar el tema de la simulación como parte de cualquier evaluación neuropsicológica forense (es decir, las evaluaciones neuropsicológicas que se presentarán en un juicio). La definición del DSM-IV de simulación servirá como base para la discusión. Se define la simulación como la producción intencionada de síntomas físicos, psicológicos o neuropsicológicos falsos o exagerados, la cual está motivada pro incentivos externos como el evitar el servicio militar, el trabajar, obtener fármacos, evadirse de la persecución criminal u obtener compensación financiera por las lesiones alegadas. Se tiene que evaluar la simulación por si existe o para descartarla en cualquier examen neuropsicológico forense. Se revisarán los métodos y procedimientos específicos actuales desarrollados para identificar la producción intencional de quejas neuropsicológicas falsas o muy exageradas. Se usarán casos hipotéticos para ilustrar la aplicación de estos procedimientos como parte de cualquier evaluación neuropsicológica forense. Se discutirá la necesidad de considerar condiciones psicológicas alternativas como causas de la exageración de síntomas neuropsicológicos. Finalmente, se ofrecerán sugerencias para la presentación de los datos de los tests neuropsicológicos que parecen que sean debidos o que estén relacionados con la simulación tanto en los informes escritos como en los testimonios orales antes del juicio.

The concept of malingering has been around long before modern times.  There are both mythological and biblical references to malingering (Zielinski , 1994), while in the second century B.C. persons were noted to feign disability to take advantage of relief facilities (Nies and Sweet, 1994).  However, it was not until the middle of this century that the term "malingering" was created, and then it was to describe soldiers who feigned illness to avoid military duty (Nies and Sweet, 1994). Later definitions have expanded the concept beyond the military realm, and have include the feigning of psychological as well as physical illness.  The latest edition of the Diagnostic and Statistical Manual (DSM-IV, American Psychiatric Association, 1994) defines malingering as "the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives, such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs".  Others find it is more useful to differentiate types of malingering along a continuum, as individuals may vary on several dimensions including degree of intentionality, degree of distortion, and motivation to malinger (Ustad and Rogers, 1996; Travin & Potter, 1984, Lipman, 1962).  For instance, Lipman (1962) proposed four types of malingering: (a) invention ­ the patient has no symptoms, but fraudulently represents that he has, (b) perseveration ­ genuine symptoms that were formerly present have ceased, but are alleged to continue, (c) exaggeration ­ the patient represents symptoms as worse than they are, and (d) transference ­ genuine symptoms are fraudulently attributed to a particular injury.  (To avoid confusion with the psychoanalytic concept of transference, we prefer to refer to this last type of malingering as misattribution/attribution error).  Still others have argued against the term entirely, calling it a weak diagnosis serving to justify denial of treatment and benefits (Erickson in Pankratz & Erickson, 1990).
 
The controversy does not end with diagnosis.  There is considerable debate in the literature as to which clinical and psychometric methods are most reliable and valid in detecting malingering. There are significant limitations in the literature stemming from problems inherent in the research design. One way that malingering has been researched is through simulation designs, in which normal, non-patient groups are asked to fake symptoms. They are then compared to either other normal subjects who are instructed to perform honestly, or with a comparison group of brain-injured or mentally impaired group subjects who are also instructed to answer honestly.  This approach has been criticized for its unknown gereralizability to actual malingerers in real-world settings (Rogers, Harrell, and Liff, 1993).  A second limitation to this approach is that it is subject to what Rogers and Cavanaugh (1983) call the simulation-malingering paradox.  This occurs when one asks subjects to comply with directions to fake (Rogers and Cavanaugh, 1983). Another approach to researching malingering utilizes known-group designs.  In these studies, actual malingerers, as identified by clinicians not involved with the research, are compared with actual patients on standardized measures (Rogers et al., 1993).  The main drawback of this approach is the difficulty in establishing an accurate classification of malingerers.  Indeed, there is considerable debate over the ability of clinicians to detect malingering, particularly when based on subjective methods (Trueblood & Binder, 1997; Faust, 1995; McCaffrey & Lynch, 1992; Faust, Hart, & Guilmette 1988; Faust, Hart, Guilmette, & Arkes, 1988). It is not the intent of this paper to review or critically evaluate the literature.  Interested readers should consult recent reviews by Haines & Norris (1995); Nies & Sweet (1994); Rogers et al, (1993); and Franzen, Iverson, & McCracken, (1990).   Rather, the purpose of this paper is to give a process oriented overview of the clinical assessment of malingering. We begin with an overview of terminology used to describe dissimulation, or the distortion or misrepresentation of psychological symptoms.  We then discuss models of when to assess for malingering, followed by strategies for detecting feigned psychopathology and feigned neuropsychological deficits.
 
In order to understand how to assess for malingering, it is helpful to understand the terminology. While the bulk of the literature focuses on malingering, Rogers (1997d) argues that other response styles also have clinical relevance.  He delineates six response styles of dissimulation. Malingering (American Psychiatric Association, 1994) refers to the  conscious fabrication or gross exaggeration of physical and/or psychological symptoms for an external goal.  Defensiveness, the opposite of malingering, refers to the conscious denial or minimization of physical or and/or psychological symptoms. Irrelevant responding occurs when the individual fails to engage in the assessment process, thus the responses are not related to the content of clinical inquiry (Ustad & Rogers, 1996; Rogers, 1997d). Random responding is a type of irrelevant responding in which a random pattern of responses can be identified (Rogers, 1997d).  Honest responding occurs when the individual is sincere in their attempts to be accurate in his or her responses (Rogers, 1997d), and hybrid responding (Rogers, 1984) can be a combination of any of the previous styles (Rogers, 1997).
 
Differentiating types of response styles is not merely an academic exercise. The response style of the patient is of particular importance when there is a strong motivation to feign (Ustad & Rogers, 1996), and this differentiation is key in addressing the disposition of client, as well as in diagnosing and making treatment recommendations (Rogers 1988). Rogers (1988) further proposes gradations of malingering and defensiveness ranging from mild to severe.  While these gradations have not been tested widely in populations with mental illness or suspected malingerers, they have been studied in forensic populations (Rogers, 1984). This research suggests that clinicians are able to make reliable discriminations for gradations of malingering (Rogers 1997d).  Again, these distinctions could have important implications in assessment, diagnosis, and treatment of patients.
 
Another issue that has far reaching implications for clinical practice involves the possible motivations of malingerers.  Rogers, Bagby, & Dickens (1992) argue that regardless of oneís theoretical orientation, the evaluation of a personís motivation is critical to the evaluation of malingering in the forensic context. Many researchers have developed threshold models or rules of thumb to follow to determine when to assess for malingering (Pankratz & Binder, 1997; Ruff, Wylie, & Tennant, 1993;

Franzen et al, 1990; Brandt, 1988).  Implicit in these models are assumptions about the possible motivation of the malingerer.  A useful framework for examining these assumptions and motivations are three explanatory models of malingering proposed by Rogers (1997d).  In the pathogenic model, the malingerer is seen as mentally disordered, in the criminological model, the malingerer is simply seen as bad, and in the adaptational model, the malingerer is attempting to meet his or her objectives in an adversarial circumstance (Rogers, 1997d).
 In the pathogenic model, the motivation of the malingerer is presumed to be a mental disorder.  The patient is assumed to create symptoms and portray them as genuine in an attempt to gain control over actual emerging symptoms. As the mental disorder worsens, the patient will lose control over the simulated symptoms (Rogers, 1997d). However, in recent decades this model has fallen out of favor for two significant reasons. First is the fact that many malingerers have not shown this hypothesized deterioration.  Second is that a shift in the perceptions of malingering have occurred.  As a result of  Millerís (1961) work on accident neurosis there has been a shift to considering an economically based motivation for malingering.  Moreover, external motives for malingering have often been identified (Ustad & Rogers, 1996).  In addition, improvements in the mental health system have negated the previous assumption that one would have to be crazy to want to appear mentally ill.  This has led to increasing concerns that criminal defendants might try to avoid punishment by feigning mental illness (Rogers, 1997d; Rogers, 1990).
 
Such concerns led to the development of the criminological model (Ustad & Rogers, 1996, Rogers, 1997d).  This view is epitomized in the DSM (DSM-IV; American Psychiatric Association, 1994) models, which indicate that malingering should be strongly suspected if there is a medicolegal context to the presentation, the person is referred by an attorney to the clinician for examination, there is a marked discrepancy between the person's claimed stress or disability and the objective findings, there is lack of cooperation during the diagnostic evaluation and in complying with the prescribed treatment regimen, or there is the presence of Antisocial Personality disorder.  Thus, according to Rogers (1990), the theme to this model is "badness". "A bad person (with APD), in bad circumstances (legal difficulty), is performing badly (uncooperative)" (p.7, Rogers, 1997d).
 
This view has predominated in much of the literature offering guidelines of when to assess for malingering. For instance, Pankratz (1988) suggests that one consider malingering if the patient is involved in litigation or criminal proceedings, could receive obvious secondary gains from having a deficit, or if there is a history of malingering or factitious disorder.  The first criteria of Brandtís (1988) threshold model of malingered amnesia is: criminal charges pending. There are, however, several limitations to this model. Rogers (1997d), argues that while many persons evaluated in forensic settings are not voluntary, one cannot assume that they are likely to malinger.  Instead they may engage in a variety of response styles.  For instance, sex offenders and persons involved in custody battles are unlikely to exaggerate symptoms.  In mild closed injury due to motor vehicle accident, litigation is quite common, so the medicolegal context may not be a particularly unique indicator of malingering (Ruff et al., 1993).  A second problem with this model is the notion of "uncooperativeness" as a criterion for malingering.  Persons with schizophrenia are often non-compliant with their treatment, while persons with eating disorders or substance abuse problems are often uncooperative with ongoing assessments (Rogers, 1997d). Non-compliance with treatment could result from denial of problems rather than malingering (Ruff et al., 1993).  Lack of cooperation may be due to distractability and attentional fluctuations, which often result from minor traumatic brain injury (Ruff et al., 1993).  Conversely, malingerers often appear highly cooperative (Ustad and Rogers, 1996; Rogers, 1990). A final problem is the criterion of subjective claims being discrepant with objective findings.  Clinicians must be careful in what they assume to be objective findings.  As Ruff et al., (1993) remind us, results of psychometric tests are subjective, since the patient is in control of their response.  In most cases of mild traumatic brain injury there are no objective findings, however this is due to the limits in neuroimaging techniques, not necessarily an absence of real damage (Ruff et al., 1993).
 
The adaptational model (Rogers, 1990) proposes that potential malingerers engage in a cost-benefit analysis when confronted with an assessment that they perceive to be at odds with their own needs. Rogers (1997d) argues that the likelihood of guardedness or malingering increases when the context of the evaluation is perceived as adversarial, the stakes are high, and there appear to be no other options.  Initial studies of these models (Rogers, Sewell, & Goldstein, 1994) suggest that forensic psychologists consider the characteristics associated with the adaptational model to be of greater importance than those associated with the pathogenic or criminological model when assessing mentally disordered offenders.  This model provides a framework for the clinician to assess the clientís motivation to malinger, by exploring how adversarial they perceive the relationship to be, what the clientís objectives are, and if the client perceives any alternatives to meeting these objectives (Rogers, 1997d).
 
Numerous authors have detailed instances in which an individual might malinger (Rogers, 1997, Ustad and Rogers, 1996, Haines & Norris 1995; Franzen et al., 1990, Adelman & Howard, 1984).  In criminal forensic settings, individuals may malinger for several reasons, including postponement of legal proceedings, avoiding incarceration, or for obtaining valuable amenities while incarcerated.  Thus clinicians should remain vigilant when working in the legal realm, including evaluations of insanity, competency to stand trail, to be sentenced to be executed, and evaluations for mental health services (Adelman & Howard, 1984). In civil forensic settings, malingering may occur in an attempt to obtain financial compensation, avoid obligation, gain sympathy or obtain social support (Ustad & Rogers, 1996).  The general consensus in the literature is that the possibility of malingering should be considered in any situation in which the client may benefit from appearing mentally ill or cognitively impaired (Haines & Norris 1995; Franzen et al. 1990; Wasyliw & Golden 1985).
 
Once one has established the criteria of when to assess, the next issue becomes how to assess. Malingering has typically fallen in to two different categories; fabrication of psychopathology and feigned neuropsychological deficit. As the goals of malingerers differ, that is which symptoms they are feigning, so do their attempts to achieve their objectives, and thus so must our detection strategies (Rogers 1997b).
 
Rogers (1997a) proposes four detection strategies for feigned psychopathology that have been cross validated across both simulation and known-groups research designs,  and both psychometric and interview-based methods of assessment. These are composed of rare symptoms, indiscriminant symptom endorsement, obvious symptoms, and improbable symptoms.  In the first, the patient is seen to overendorse symptoms and associated features that occur only occasionally in patients with actual mental disorders.  In utilizing this technique, a clinician must have a working knowledge of base-rates of symptoms of mental disorders (Gouvier, Hayes, & Smiraldo, 1998; Hayes, Hilsabeck, & Gouvier, 1999).  This strategy has been validated with the F, Fb and Fp scales of the Minnesota Multiphasic Personality Inventory (MMPI-2, Butcher et al., 1989) and the RS scale of the Structured Interview of Reported Symptoms (SIRS, Rogers et al., 1992) (Rogers, 1997c; Rogers et al., 1994). In the second strategy, the patient is seen to simply overendorse symptoms.  Thus, if a patient endorses over two-thirds of a large array of physical and psychological features, either in an unstructured interview or on psychometric measures, the clinician should suspect feigning (Rogers, 1997a). In the third strategy, a person may be suspected of malingering if they endorse a higher proportion of symptoms that are obvious indicators of severe psychopathology than expected in clinical populations.  Again, sufficient knowledge of base rates of symptoms in these disorders is required in using these strategies.  In the last strategy, a subject may be suspected of malingering if they report highly unusual, or preposterous symptoms.  Since these absurd details are often offered in response to questions in clinical interviews, the clinician may need to insert questions in the interview specifically to elicit such symptoms (Rogers, 1997a).  Two other strategies which nearly meet the above mentioned criteria, but require additional validation, are symptom combination and symptoms of extreme severity (Rogers, 1997a).
 
In a similar way, researchers have identified six detection strategies that form the basis for the most systematic approaches to the assessment of feigning on neuropsychological measures (Rogers et al, 1993; Haines and Norris 1995; Franzen et al 1990). The first strategy is referred to as the floor effect.  In this strategy, the individual is failing at tasks on which even grossly impaired persons are likely to succeed.  An example of such tasks would include knowledge of basic personal history.  Some measures used expressly for the purpose of assessing this effect include the Wiggins and Brandt Personal History Interview (Brandt, 1988; Wiggins and Brandt, 1988) and the Rey 15-item Memory Test (see Lezak, 1983).  A second detection strategy is the performance curve method.  This is based on number of easy items failed and difficult items passed.  It is assumed that most patients will perform better on easier items and worse on more difficult items.  If a patient performs in the opposite direction, feigning should be suspected.  A third strategy is referred to as magnitude of error. Some have suggested that malingering can be detected by the type of wrong answer given (Bash & Alpert, 1980).  For instance, if a client is giving Ganser-like responses, or "near misses", malingering may be suspected. There are also some suggestions that a qualitative difference in wrong responses might discriminate malingerers from others (Rogers et al., 1993).

A fourth strategy is referred to as symptom validity testing.  In this strategy, a client is asked to complete forced choice tasks.  A performance that is below chance is seen as an indicator of malingering. Later improvements of this method include procedures that take into account simple and difficult items (Binder, 1992; Hiscock & Hiscock, 1989), use more than two alternatives (Rogers, 1987), and examine performance across time (Iverson  et al., 1991).  A fifth strategy is that of atypical presentation. In this strategy, inconsistent or atypical performances, or large variations in test performance on either tests of similar abilities or readministrations of the same tests, are seen as indications of malingering. However, clinicians must use caution when applying this approach.   Pankratz (1988) reported that inconsistency of symptoms as well as presentations were common in brain-injured patients. Ruff, et al. (1993) warn against overinterpreting inconsistencies as malingering because neuropathology, psychopathology, fatigue, and the like can result in fluctuating performance. Additionally, they point out that differences in mode of presentation of the task may have an effect. Others have suggested that "cognitive deterioration" occurring on repeat testing in absence of brain injury may indicate feigning (Rogers et al, 1993).  The last strategy for the assessment of feigning cognitive deficits involves associated psychological sequelae.  In this strategy, clients who endorse a high number of psychological symptoms or atypical attitudes towards their deficit are seen as possible malingerers.
 
These detection strategies, however, should serve as markers of malingering, not conclusive evidence in and of themselves.  Most argue that clinical signs of malingering are best assessed through a combination of methods that include both structured and unstructured clinical interviews, psychometric testing, and ancillary sources (Bagby, Rogers, and Buis,1994; Rogers, et al., 1994; Drob & Berger, 1987). The seasoned clinician will make their best judgments by obtaining a complete picture. This should be  based on a thorough assessment of premorbid and postmorbid functioning, with information collected from multiple sources.
 
An essential component of the assessment is the determination of premorbid functioning. Individuals at risk for closed head injury, for instance, are more likely to abuse substances, engage in risky behavior, or come from socially and economically disadvantaged background, and thus may have impaired premorbid functioning (Haines & Norris 1995).  The clinician must obtain an accurate picture of premorbid functioning to determine if there is an appreciable loss of functioning, and what that loss might be attributable to.  A thorough investigation includes obtaining school, employment, and medical records, as well as evidence of any previous accident or arrest (Hayes, Hilsabeck & Gouvier 1999, Haines & Norris, 1995).   Zielinski (1994) warns that in assessing premorbid functioning, the clinician is likely to encounter defensiveness, which can easily result in ascribing actual symptoms to the wrong etiology.
 
The next step is to obtain an accurate picture of current functioning.  The
situational contexts in an individualís life can promote malingering efforts, thus the clinician must fully assess the clientís medical status and possible life stresses, all of which may affect the current level of functioning (Pankratz and Erickson 1990) For instance, physical and/or emotional problems may compound or impair cognitive functioning (Zielinski, 1994). Thus the clinician must obtain a thorough listing of comorbid symptoms and establish their interactions. Obtaining information from multiple sources may be helpful as well.  Family and friends may observe the client in different settings, and thus may report different symptomatology than does the client.
 
Psychometric test data should be interpreted in the context of behavioral observation during the test taking (Ruff et al., 1994).  The clinician must be vigilant in observing subtle cues provided by the client at any time during contact with the clinician, and note any discrepancies between observed behaviors and test performance.  For instance, the client may correctly sign and date consent forms in the waiting room, but fail to produce such information as name and date on psychometric tests. Collateral information obtained from employers, family, and friends may also point out discrepancies between everyday functioning and test data. Ruff et al (1993) propose an ecological validity approach, which calls for improved neuropsychological tests that tap both cognitive and everyday domains.
 
It may also be useful to periodically reevaluate and retest the patient at different periods of time.  As Zielinski (1994) points out, serial testing over times reduces the  possibility that a malingering patient can produce the same test pattern. However, the clinician must be aware of typical test-retest patterns and practice effects (McCaffrey, Duff, & Westervelt, in press; McCaffrey & Westervelt, 1995).  Additionally, since response styles may vary within and across settings, the clinician must determine the independence of data measures. Malingering on one measure does not necessarily mean that the client is malingering on all of them. (Ruff et al., 1993).
 
The clinician must determine the nature of any secondary gain, either directly or indirectly (Ruff et al., 1993). Again, assessing the client or interviewing collateral informants may do this. The clinician must be aware that as research on malingering has increased in the past decade, so has the client and their attorneyís knowledge of how clinicians assess for malingering (Coleman, R.D., Rapport, L. J., Millis,S.R.,  Ricker, J.H., & Farchione,T.J., 1998; Rapport, L.J., Farchione, T.J.,  Coleman, R. D., & Axelrod,B.N., 1998; Rose, F.E.,  Hall, S., & Szalda-Petree, A.D., 1998). In investigating the possibility of malingering, the clinician should investigate not only the clientís knowledge of a particular disorder, but also his or her knowledge of particular test (Rogers et al., 1993). Clinicians must be mindful of the fact that litigants may be provided information about specific psychological and neuropsychological tests (Hayes, Hilsabeck, and Gouvier, 1999).  Indeed, it has been reported that some attorneys feel it would be "legal malpractice" not to prepare their client prior to a psychological or neuropsychological evaluation.
 The assessment of malingering has not been refined to an exact science. Perhaps it is due to the "nature of the beast". Absent any indisputable proof, such as the client performing an act he or she claimed to be unable to do, one can never know the truth of anotherís dishonesty.  Yet there are techniques, that if used in combination, may provide enough information to support a reasonable suspicion of malingering.  A clinician must always be aware of the possibility that a client may not be presenting with full forthrightness, particularly if there are secondary, external gains to be had.  Through judicious assessment of multiple sources of information, the clinician may uncover discrepancies.  The clinician must be able to account for such discrepancies, and attempt to reconcile conflicting data.  If that is not possible, than malingering may be suspected.
 
 

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