Malingering in the Forensic and Correctional Settings

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SPECIAL REPORT: FORENSIC PSYCHIATRY

Malingering, also known as the intentional feigning of symptoms for a secondary gain, is an ever-present entity in the realm of forensic and correctional facilities. However, within the same spheres, it proves to be a double-edged sword. While these settings themselves prove to be fertile grounds for falsification of symptoms, cue secondary gain, falsely applying the diagnosis of malingering can invite its own set of consequences. It can also raise profound connotations as psychiatric diagnoses are often viewed as labels, and what could be more stigmatizing, more labeling, as calling someone with mental illness a malingerer? This is not to imply that this is common practice but serves to act as a cautionary note to the reader.

In forensic and correctional facilities, motives for malingering illness can occur as an adaptation to the environment. Motives to malinger illness may include transfer within or to a less restrictive facility, extending length of stay to avoid jail time, procuring medications to divert, and many more. In September 2023, the Department of Justice published a report that states the US prison population numbered around 1.2 million in 2022.¹ By the end of 2023, this number stood at 1.8 million.² Keeping in mind that the US has the largest prison population in the world, this number is likely to keep growing. The era of deinstitutionalization, which began 6 decades ago, led to a decline in long-term psychiatric hospitalizations, however, resulting in increasing rates of incarceration.³

Much has been written about the living conditions of individuals who are incarcerated and that of the facilities themselves. With the COVID-19 pandemic, the added burden on the system has increased exponentially.⁴ Therefore, overcrowding; confinement for long periods of time in a high-stress environment; high levels of stress; ongoing communicable diseases; and undiagnosed, untreated mental illness can create the optimal setting for feigning symptoms to facilitate transfer to better conditions. However, the very same conditions can lead to and exacerbate mental illnesses. Hence, the vitality of a complete psychiatric assessment combined with the utilization of data from historical sources and staff observations cannot be overemphasized.

Categories of Malingering

Based on the production of symptoms, malingering can be further categorized as pure malingering, partial malingering, and false imputation.⁵ Simply put, the conscious production of nonexistent symptoms is termed as pure malingering. When there is voluntary embellishment of already present symptoms of a disorder, it is considered partial malingering. Consciously ascribing preexisting symptoms to a completely unrelated cause constitutes false imputation. Malingering can occur in individuals with or without preexisting mental illnesses. The Figure illustrates the categories of malingering.

Figure. Categories of Malingering

The Parable of 2 Hats

Much has been conjectured and written about the ethical principles of forensic psychiatrists. In his 1982 address to the American Psychiatric Association (APA) and its subsequent iterations, Alan Stone, MD, called into question the veracity of psychiatric testimony and equated his own questioning the ethicality of forensic psychiatry as him “coming down from the ivory tower.”⁶ Close to a decade later, Paul Appelbaum, MD, put forth the aphorism that the forensic psychiatrist’s central role lay in the advancement of justice, honesty, and objectivity.⁷ These are guidelines that are adhered to by the American Association of Psychiatry and Law (AAPL) and ingrained into every trainee in a forensic psychiatry fellowship.⁸ More than any others, malingering is an area that blurs the line between the 2 hats.

Forensic psychiatrists are experts at juggling between the 2 roles, and this is imperative, especially when considering the diagnosis of malingering in a forensic or correctional setting. Being highly contingent upon the environment, malingering can also be seen as an adaptation to it. In the forensic setting, one of the main drives to malinger symptoms of illness is to avoid prison sentences, the length of which could often be long-term or even life.⁹ A 2013 study by McDermott et al found that prevalence rates of malingering in forensic settings range between 8% and 21%.¹⁰ In the same study, about 18% of patients deemed incompetent to stand trial were found to be malingering, and nearly 65% of incarcerated individuals needing psychiatric interventions were found to be malingering as well. Therefore, it is a clear and ever-present entity in these settings. These rates have stayed consistent across the board.

The Burden of Malingering

From a public health perspective, malingering can be a costly affair. In forensic settings, it can delay outcomes such as trial and sentencing and unwarranted spending towards housing and medications. Other factors to consider include transport of patients to and from courts, referrals to specialists, and specialized testing outside facilities for further diagnostic clarifications. Most state systems are already facing a backlog of individuals awaiting competency to stand trial evaluations and malingering symptoms delays this process further.¹¹ When individuals falsely impute symptoms to a cause other than their illness, this can result in treatment that would not only be unhelpful but invite unnecessary medication adverse effects.

Dissimulation, which involves minimizing symptoms of mental illness to portray good health, can lead to individuals not receiving much-needed treatment.¹² Although there are differences in lengths of stay, services offered, and the metrics considered for billing purposes, admission to psychiatric inpatient facilities in the community costs about $1000 per patient.¹³ A 2024 cost study of Texas state hospitals showed the daily cost of an operational bed to be $736.41 for civil and $744.96 for forensic hospitals.¹⁴ Considering for example, an individual who is deemed incompetent to stand trial, admission to a forensic state facility may last anywhere from 90 days to a year or longer, depending on restorability. When these numbers are extrapolated together, the cost and expenditures are staggering.

Malingered Psychiatric Symptoms in Forensic and Correctional Settings

Psychosis is often most malingered, due to its overt and reproducible nature. Incentives to malinger psychosis typically involve psychiatric hospitalization to avoid prison or jail time; however, it is usually dynamic and multifaceted. Within the sphere of psychosis, individuals are more likely to report visual hallucinations, followed by auditory hallucinations and delusions.¹² It is imperative to consider and rule out pathologies such as substance use and organic conditions in which visual hallucinations are seen as well. Malingered psychotic symptoms are characteristically noted to be atypical, out of proportion with the overall severity of the individual’s illness, and with notable inconsistencies in self and staff reports.

At the same time, it is important to keep in mind that atypical symptoms by themselves do not directly equate to malingering. As noted by McCarthy-Jones and Resnick, atypical auditory hallucinations ranged from being completely silent (reported by 5% of patients) to playing out like an idea inside their head (44% of patients) as opposed to coming from outside. In addition, the voices could also be heard as coming from different parts of the body.¹⁵ This further emphasizes the need for contextual considerations and an extremely thorough evaluation using multiple sources of information. When individuals feign delusional content, the onset and abatement of symptoms are generally atypical compared with the norm.¹² Delusions are environment-driven and closely correlate with the degree of the individual’s disorganization. Anecdotally, this writer has observed a patient reporting delusions of misidentification, that security staff have been replaced by family members connected to the patient’s instant offense, and another patient endorsing ideas of reference from the static generated by the security staff’s radios.

Another relatively common pattern of malingering involves feigning cognitive symptoms. Individuals in forensic or correctional facilities awaiting competency evaluations can grossly exaggerate cognitive deficits to undergo transfer to a civil facility or plead insanity to avoid long periods of incarceration.¹⁶ In such instances, psychometric testing such as performance and symptom validity testing has been shown to be highly specific in detecting feigning. Furthermore, incarcerated individuals can also malinger suicidal ideation to be transferred to community hospitals or forensic facilities for psychiatric stabilization.¹⁷

Concluding Thoughts (and Myths) to Consider

Forensic and correctional settings prove to be ripe environments for malingering symptoms, especially of mental illnesses. However, the consideration and investigation of malingering must be done with exquisite caution, as it can worsen stigma and result in individuals not getting much-needed interventions. When making the diagnosis, a complete evaluation combined with psychological testing and collateral information from sources such as staff, previous records, and even family must be carefully weighed along with clinical judgement. There is a wealth of literature on interview techniques and indicators to consider when suspecting malingering.

Individuals who feign symptoms can have prior mental illnesses, and this does not preclude malingering. The reporting of purely atypical symptoms does not default to malingering as well. Another commonly encountered trope is that individuals diagnosed with antisocial personality disorder have a higher propensity to malinger, and this has been proven to be false across many bodies of research. On a final note, diagnosing malingering can include dire consequences such as loss of much-needed privileges and sentencing enhancements, and therefore, it is best to view it as the diagnosis of exclusion, within the diagnosis of exclusion that is psychiatry.

Dr Kumar is an early career forensic psychiatrist. He is an attending physician at a State forensic facility for the New York Office of Mental Health.

References

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2. Countries with the largest number of prisoners per 100,000 of the national population, as of January 2024. Statista. January 2024. Accessed October 23, 2024. https://www.statista.com/statistics/262962/countries-with-the-most-prisoners-per-100-000-inhabitants/

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8. Ethics Guidelines for the Practice of Forensic Psychiatry. American Academy of Psychiatry and the Law. May 2005. Accessed October 23, 2024. https://www.aapl.org/ethics.htm

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