How Competency Examiners Should (and often don't) Assess for Malignering and Poor Effort.

Author:Rubenzer, Steve

"There may be great fraud in this matter... (the judge) may do well to inquire... whether it (incompetence) be real or counterfeit." (Hale, 1736) (1) THE POSSIBILITY OF FAKING during legal proceedings has been recognized since ancient times. While forensic psychlogists were among the first mental health professionals to investigate malingering, lately, the sister discipline of neuropsychology has been much more active and has produced hundreds of publications in the past 20 years. One influential study concluded that whenever siutations provide incentives for faking, roughly 40% of examinees will do so or present with poor effort to the extent that their presentation during the evaluation is not a reliable guide to their actual abilities. (2)

A recent survey of examiners across the US estimated that 24% of defendants referred for competency assessments were feinging, and a further 10% were not presenting validly in other ways. (3) Feigning is a general term that means "faking bad" without specifying a motive. Malingering is the intentional production or gross exaggeration of symptoms for a tangible benefit. There are a number of other conditions that also imply invalid responding: Factitious disorder is a condition in which a person intentionally fakes a disorder for the purpose of gaining attention and special treatment from treatment providers. It cannot be diagnosed if there are significant other benefits to the behavior, (4) as there almost always are in a criminal case or in jail. Somatoform disorders are conditions in which the patient complains of bodily dysfunction or pains that cannot be medically explained. It is believed that such reports are not deliberately inaccurate. It may simply be that some people are particularly sensitive to minor bodily sensations, over-interpret such experiences, or to complain about them more others. Conversion disorders usually involves complaints of paralysis or cognitive dysfunction, such as amnesia, that cannot be medically explained. Such patients were also referred to as displaying hysterical paralysis or blindness. Pioneers such as Charcot and Freud interpreted their behavior as unconsciously determined. They noted that such patients often seemed oddly unconcerned about their sudden inability to, for example, use their left arm, and observed that these symptoms often functioned to excuse the patient from distasteful social obligations. This sounds a lot like malingering, and this is how such behavior was interpreted prior to the age of psychoanalysis. Charcot himself wrote, "Malingering is to be found in every phase of hysteria." (5) Recent authors question the existence of unconscious motivation in such presentations. (6)

While many CST examinees appear to malinger, lack of full cooperation, without a clear motive and deliberate intent to perform badly, is also a major concern. Many of the tests and procedures psychologists use assume full engagement and effort on the part of the test-taker. It is no more difficult to low-ball an IQ test than for someone to do fewer push-ups than their maximum. There is increasing evidence that assuming a test taker will perform to the best of their ability is naive and unfounded: Poor effort has been found in groups of subjects, such as college volunteers (7) and children tested in school, (8) that were not thought to be at risk for underperformance. Such examinees don't have any clear motivation to perform badly, but neither are they especially motivated to do their best.

All of the above response styles potentially spoil the assessment. I refer to them by the broad term negative response bias, which make no assumption about the motivation for the behavior. The crucial issue is given any evidence of less than full cooperation and honesty, one cannot put much weight on defendant's presentation during the evaluation. Collateral sources will be required to validly assess the defendant's actual cognitive, psychiatric, and functional status.

As a court-appointed expert, I often encountered defense-obtained evaluations that provided second opinions on defendants I opined had feigned. It was not uncommon for the defense examiners to ignore the data from my investigation and attempt to approach the defendant "with a clean slate." Another examiner would routinely testify that he "saw no evidence of malingering" in cases a previous examiner concluded this was the case, offering no facts or observations in support of his opinion. Prosecutors could reasonably conclude that such examiners simply write down whatever the defendant tells them and testify as if this was a meaningful assessment.

Although it may be hard to tell from such reports, there are professional standards that do guide such practices. Unfortunately, the two most prominent guidelines, the American Psychological Association Code of Ethics (APA, 2002/2010/2016) (9) and the Association for the Advancement of Psychiatry and Law's practice guidelines (2007), (10) do not provide strong recommendations on assessment of feigning. The Specialty Guidelines for Forensic Psychologists" contains firmer language, although recommendations about the need to assess for feigning are merely implicit.

Several neuropsychology professional societies have issued position statements stating that assessment of an examinee's effort on cognitive testing (which includes assessment of intelligence) is medically necessary in ALL such assessments, not merely those that are conducted for psycholegal purposes. (12) These followed accumulating evidence that an examinee's motivation and effort during testing has a much larger effect on the test scores obtained than brain damage does. (13) As it turns out, mild brain injuries, by far the most common, have no significant effects on cognition three months after injury. (14) A mild traumatic brain injury (mTBI) is one that results in less than 30 minutes of unconsciousness, with no abnormality on CT or MRI brain scans, and no complication in the recovery (such as bleeding into the brain). (15)

Some highly influential and well-known authors have provided very clear directives to assess feigning in forensic exams in general and competency to stand trial (CST) exams in particular. In their classic text Psychological Evaluations for the Court, Melton et al. (1997, p. 54) wrote, "Given the significant potential for deception and implications for the validity of their findings, mental health professional should develop a low threshold for suspecting deceptive responding." (16) In the Oxford Best Practices series book on assessing CST, the authors state, "Malingering must always be considered by any evaluator working within the forensic context" (p. 124). (17) Thomas Grisso, in his 1988 book on competency assessment, wrote: "Malingering must be considered whenever a pre-trial competency evaluation produces signs of psychotic or organic disorders, mental retardation, deficits in competency abilities, or special states like amnesia" (p. 35). (18) This statement remains in force for defendants who have a legitimate mental condition, because even examinees with schizophrenia, (19) serious head injury, (20) and intellectual disability (21) can exaggerate their disabilities. In fact, they are best-situated to do so: Defendants with no such history cannot support their claims and will usually lack knowledge of how to credibly portray the condition.

As demonstrated above, there is explicit endorsement from authoritative authors regarding the need to assess for possible feigning or poor cooperation in CST exams. There is also strong support from statistical surveys to support a high index of suspicion. A recent meta-analysis of 59 studies reported that an average of 27.5% of defendants referred for competency examination were found incompetent. (22) This can be compared with the proportion of defendants estimated to be feigning (24.1%) or uncooperative (8.3%) in a recent survey of competency to stand trial (CST) examiners. (23) From these numbers, it is apparent that a defendant who presents as impaired is about equally likely to be feigning or uncooperative as to be legitimately incompetent. For this reason, I argue that validity assessment is the primary diagnostic task in CST assessments, and a primary competency of CST examiners.

Technically, Grisso's recommendation above to assess every defendant that presents with a mental or psychiatric impairment for feigning is overly-inclusive: If a defendant presents with evidence of a mental disorder but without deficits in competence to stand trial, there may be no need to assess for feigning. For example, if a defendant presents as rational but reports hearing voices only at night--who cares? Court hearings are during the day. Mental illness or deficit should very rarely be equated with incompetency: There are only a few diagnoses that strongly imply impairment to the point of incompetence, such as delirium or severe dementia or intellectual disability. A diagnosis of moderate intellectual disability, if accurate, suggests probable incompetency, while schizophrenia and Bipolar disorder do not: About 50% of defendants with such diagnoses are found competent. (24)

For intellectually disabled (ID) defendants, prior IQ scores can provide guidance regarding CST status: ID defendants found competent have an average IQ of 63.7 across studies, whereas those found incompetent have an average IQ of 56.9. Scores of 65 and above suggest competence, absent other issues, while valid IQ scores below 60 increasingly suggest incompetence. As IQ scores dip to 55 and below, there is a low likelihood of competence or the capacity of being educated into competence. (25)

Feigning can take many forms, some of which have not been previously emphasized in the professional literature. (26) These are shown in Table 1.

These various presentations can present in multiple combinations. Unsophisticated defendants often fake multiple issues and...

To continue reading