Malingering of brain injury or damage, and malingering of mental illness are common concerns that must be considered in all litigation involving mental health professionals. Malingering in a forensic mental health context is a word which usually refers to deception intended to fake or exaggerate symptoms of a genuine mental illness, brain injury, or brain damage. That is the basic meaning, but in actual practice it is more complicated than that. Malingering is actually an inference made about someone's motivation when there is an indication the information they are providing is not reliable or consistent with what is known about them and the condition.
The possibility of malingering must be considered in every forensic mental health evaluation because there is always the potential for a person to try and "beat the system" by attempting to exaggerate their symptoms, or present with symptoms of a condition that they do not actually suffer. The process of assessment of malingering has come a very long way since the time of professionals just going on their gut feelings and their clinical experience. In current forensic mental health practice there are a wide variety of techniques available to mental health professionals to assess the issues related to possible malingering.
The issue of possible malingering of mental illness or brain damage is present in both criminal and civil proceedings. In criminal proceedings it is most often seen in competency to proceed and mental status at the time of the offense issues. In civil proceedings the possibility of malingering brain damage is often seen in personal injury cases involving accidents and malpractice which may have resulted in brain damage. Malingering of other types of mental illness in civil proceedings are also common concerns in claims of post traumatic stress disorder and other conditions which may arise out of traumatic events or loss of independence.
The frequency of malingering found in the available literature indicates that it is neither prevalent nor particularly rare. There is considerable variation from one setting to another, but overall the frequency of malingering mental illness or brain injury in legal proceedings is probably between 15-18 % of cases. Most people involved in litigation do not exaggerate or fabricate their conditions, but the problem is common enough that it cannot be ignored.
Attorneys on both sides of any case involving mental health issues should be aware of the issues associated with malingering, and be certain that any mental health expert they use understands and considers such issues in the context of giving a professional opinion in legal proceedings. It almost goes without saying that mental health professionals, such as forensic psychologists and psychiatrists, should be familiar with the issues associated with possible malingering, and be prepared to answer questions about how they addressed the possibility of malingering.
By: Eric Mings Ph.D.
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