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Malingering, faking mental illness discussed at Day of Discovery by Heather Woolwine Public Relations The following is the second article in a series of three about the MUSC Institute of Psychiatry’s Day of Discovery: Forensic Psychiatry.   The topic of this year’s Day of Discovery for the Institute of Psychiatry was forensic psychiatry. On May 12, MUSC and other legal and health care professionals gathered to discuss a variety of issues related to forensic psychiatry, from personality disorders and controversies that surround them to catching a person faking mental illness.   Thomas Cobb, M.D., Psychiatry and Behavioral Sciences assistant professor and MUSC Forensic Psychiatry Fellowship associate director, presented information on malingering, or the faking of mental illness. By nature of treating processes or disorders of the mind, psychiatrists must discern the differences between a person experiencing real mental problems and someone who is faking mental illness for any number of possible reasons.   Malingering, as defined by the Diagnostic and Statistical Manual of Mental Disorders fourth edition (DSM-IV), is the intentional production of false or exaggerated physical or psychological symptoms motivated by external incentives.   It is an intentional and conscious action where the payoff could be money or getting out of responsibility; not to be confused with someone who is suffering real symptoms as a result of an unconscious need to resolve some conflict in the mind.   With many external incentives to prompt someone to engage in malingering, it’s important that psychiatrists identify certain markers that may insinuate malingering, like the patient refusing to cooperate, a marked discrepancy between claimed disability and objective findings and/or the presence of antisocial personality disorder. Cobb mentioned several changes in someone’s voice from baseline that might indicate an attempt at deception, including higher tone, hesitant answers, grammatical errors, slips of the tongue, negative, irrelevant, or vague statements, or rehearsed answers.   When trying to evaluate malingering, it’s important for psychiatrists to remember that things are not always as they seem, and thus evaluation from various vantage points is a plus. It’s imperative that physicians understand the phenomenology of ordinary symptoms to help make a determination. There are various psychological tests and other clues, like overacting or calling attention to symptoms, which might tip physicians off to a malingerer.   When a person fakes hallucinations or delusions, some discrepancies are identifiable. For example, visual hallucinations are found more often in malingerers than in genuinely psychotic patients. From these genuine patients, psychiatrists know that visual hallucinations are usually in color, they don’t change if eyes are open or closed, involve normal sized people (if people involved), and are consistent with any auditory hallucinations. Auditory hallucinations are usually perceived as words or clear sentences and are transient. Another way to determine a real psychosis from a malingered one in this instance is that people with genuine mental illness attempt to make the voices decrease by involving themselves in other activities and those voices are either benevolent or malevolent, with no middle ground. For the genuine patient, a delusion will not start and stop abruptly.    In relation to the criminal justice system, malingering is a huge potential problem, as many criminals would fake a mental illness to admonish themselves of responsibility or gain some external incentive. Like any criminal, malingerers leave clues for those who would discover their charade- they often present contradictions in accounts of their illness, try to take control of the interview, can be evasive, and have non-psychotic ulterior motives. They are also unlikely to show negative symptoms, may pretend a cognitive deficit, and only display symptoms when being watched.   Another aspect of malingering to consider is that some people fake mental illness specifically to receive damages through the court system from one entity or another because of its supposed role in that person’s mental illness. Historically, the court system was resistant to compensate for psychic damage out of fear of false claims and the difficulty associated with proving that a claim is false.   But when a psychic damages case does arise, the claims can range from a patient claiming post traumatic stress disorder as a result of physical trauma to claiming chronic or prolonged stress led to a mental disorder. In this situation, a series of clinical evaluations are performed on the patient to look for clues of malingering.   Cobb concluded his presentation with a recap of things to look for when malingering is suspected and reminded everyone that most importantly, a psychiatrist has to know what the real disorder looks like before calling someone a fake. Criminal responsibility and legal insanity Richard Frierson, M.D., associate professor of psychiatry and University of South Carolina School of Medicine Forensic Psychiatry Fellowship director, discussed jurisdictional variations in the definition of legal insanity, the guilty but mentally ill verdict, and the defense of diminished capacity.   When discussing the accused’s mental capacity, it must be thought of in two ways; first, what the mental state of that person is currently as it relates to his or her competency to stand trial and second, what the person’s mental state was at the time of the alleged crime. If the defendant is found competent to stand trial, then the issue of their mental state at the time of the crime as it relates to legal insanity becomes paramount. Unlike competency to stand trial definitions, criminal responsibility standards vary by state.   The insanity defense itself is only raised in one percent of all felony crimes and was only successful in 25 percent of those cases. Eighty percent of these cases are successful in part because the prosecution agreed to the insanity plea. The U.S. Supreme Court does not mandate a constitutional right to an insanity defense and thus several states abolished this defense.   After providing a brief history concerning the roots of the insanity defense in several influential court cases through the early 1800s, Frierson further discussed legal insanity in the US after this point.   In 1869, the New Hampshire Rule determined that if the criminal act was the product of a mental illness then the defendant is not criminally responsible. Developed in 1955 and adopted in 1972, the American Law Institute (ALI) Model Penal Code was used by federal courts and many state court systems. Under this process, the defendant is not criminally responsible for an act if he either lacks the capacity to appreciate the criminality of his conduct or he lacks the capacity to conform his conduct to the law. The ALI Model Penal Code also excludes illnesses manifested by repeated criminal/antisocial conduct. These illnesses include antisocial personality disorder, conduct disorder, pyromania, kleptomania, pedophilia, voyeurism, exhibitionism, sexual sadism, and other paraphilias.   After John Hinckley’s attempted assassination of President Reagan and the subsequent verdict of Not Guilty by Reason of Insanity (NGRI), the ALI Model Penal Code was abandoned by the federal court system and more than half of the states in the county. The NGRI verdict in the Hinckley case led to widespread dismay and as a result, the U.S. Congress and a number of states re-wrote the law regarding the insanity defense. Three states abolished the defense altogether. The court systems adopted a form of the McNaughten standard, which based insanity on the ability to tell right from wrong. Under federal rule, the defendant would be found legally insane if at the time of the act, he or she was unable to appreciate the nature and quality or wrongfulness of his/her acts.  But a portion of the ALI code was used by some states to create a new type of verdict called guilty but mentally ill.   South Carolina’s legal insanity definition is as follows: it is an affirmative defense if at the time of the act constituting the offense, the defendant, as a result of mental disease or defect, lacked the capacity to distinguish legal or moral wrong or to recognize the particular act charged as legally or morally wrong. The defendant has the burden of proof and evidence of a mental disease can’t include mental disease or defect manifested only by repeated criminal or other antisocial conduct. For a NGRI verdict, the defendant is then hospitalized and evaluated. On average those who receive this verdict are in the hospital longer than those who plead guilty and serve their time. In fact, the U.S. Supreme Court said that those acquitted can be hospitalized longer than the maximum sentence for crime for which he or she was tried.     South Carolina’s Guilty But Mentally Ill (GBMI) verdict definition states that a defendant is guilty but mentally ill if at the time of the crime, he or she could distinguish from right from wrong but because of the mental illness or defect was unable to conform his or her conduct to the law. In this case, most defendants go to prison and return to general population after receiving some form of treatment.   Since 1979, several landmark cases involving the insanity defense surfaced. Based on decisions in those cases,  federal courts may not impose an NGRI verdict on a competent defendant who decides to forgo the defense,  an NGRI verdict means that the defendant is mentally ill and dangerous and therefore there is no correlation between severity of offense and amount of time necessary for recovery (in S.C. an NGRI defendant can’t be confined longer than the max potential sentence unless committed through a probate court), the defendant’s pathology must have some direct bearing on the commission of the crime for which he’s charged for an insanity defense, and that drug-induced psychosis is not a basis for legal insanity in South Carolina, unless the insanity is permanent.   In determining legal insanity and other connected cases, many mental health experts play significant roles, including forensic and general psychiatrists, clinical and forensic psychologists, and social workers. These professionals work together to conduct insanity evaluations that involve an intense amount of scrutiny reviewing various histories and records, collateral information, and conducting interviews.   Frierson closed his presentation with information about particular diagnoses commonly associated with an insanity defense and challenges to the insanity defense such as malingering or a defendant’s lack of prior mental health history.     Friday, June 10, 2005 Catalyst Online is published weekly, updated as needed and improved from time to time by the MUSC Office of Public Relations for the faculty, employees and students of the Medical University of South Carolina. Catalyst Online editor, Kim Draughn, can be reached at 792-4107 or by email, catalyst@musc.edu. Editorial copy can be submitted to Catalyst Online and to The Catalyst in print by fax, 792-6723, or by email to petersnd@musc.edu or catalyst@musc.edu. To place an ad in The Catalyst hardcopy, call Community Press at 849-1778.