Zahr and the issue of malingering – psychologist vs psychiatrist

Zahr and the issue of malingering – psychologist vs psychiatrist

March 16, 2015

I have quoted extensively from a judgment in the NSW Supreme Court (Zahr v TAL Life Limited) where the judge has written extensively about the issue of malingering.  This raises important questions about our role.  Do we need to learn to administer psychometric testing to be regarded as credible? Certainly the psychiatrist in this case did not come out well.

The real point of difference between Dr Smith and Mr Haralambous is that Dr Smith accepted at face value the plaintiff’s account of his history and symptoms, while Mr Haralambous, fortified by the results of the extensive neuropsychological testing that he administered, was not prepared to do so. Underlying the issue exposed by this difference is a social and economic problem that has become endemic in contemporary western society. It frequently arises in claims for compensation or other financial benefits by persons who allege that they have suffered psychological illness or injury.


26                That problem is malingering. It is not itself a mental illness. Its essential feature is the intentional production of false or exaggerated physical or psychological symptoms, motivated by external incentives such as the obtaining of financial compensation. The problem is said to be prevalent among combat veterans who seek compensation and benefits for disorders such as Post Traumatic Stress Disorder, but it exists in all areas where compensation is sought. One study apparently reported that 53% of treatment-seeking (especially compensation-seeking) veterans, ‘exaggerated symptoms or malingered on psychological tests’: T Freeman, ‘Measuring Symptom Exaggeration in Veterans with Chronic Post Traumatic Stress Disorder’, (2008) 158(3) Psychiatry Research 374.


27                For some time, there has existed a substantial body of literature relating to the issue of symptom validity and mechanisms for testing claims, especially by those seeking compensation. Some of the literature includes G Young, ‘Malingering, Feigning and Responsive Bias in Psychiatric/Psychological Inquiry’, (2014) 56 International Library of Ethics, Law and the New Medicine 401. K Brauer Boone, Assessment of Feigned Cognitive Impairment: A Neurological Perspective, (2007 Guilford Press). L Binder, 1992, ‘Deception and Malingering’, in A E Puente & R J McCaffrey (eds), Handbook of Neuropsychological Assessment, a Biopsychosocial Perspective, (1992 Plenum Press, New York, pp. 353-374). E Eggleston, ‘Consideration of Symptom Validity as a Routine Component and Forensic Assessment’, (2011) The New Zealand Psychological Society. H Hall, Detecting Malingering and Deception: Forensic Distortion Analysis, (2nd ed 2000, CRC Press). T Merten, ‘Symptom Validity Testing in Claimants with Alleged Post Traumatic Stress Disorder: Comparing the Moral Emotional Numbing Test, the Structured Inventory of Malingered Symptomatology, and the Word Memory Test’, (2009) 2 Psychological Injury and Law 284.


28                Much more of the literature was referred to by Mr Haralambous. He stated, and I accept, that it is now widely recognised that, where a claimant seeks a financial reward on the basis of the diagnosis that his or her account is designed to elicit, the opinion formed by a medical practitioner, even by a highly trained psychiatrist, on the basis of the claimant’s self-serving account given in a clinical interview, may be problematic.


29                It is a fact of life that, unlike judges operating in a courtroom, who are assisted by an adversarial process and time-honoured techniques for testing the truth of a witness, (or interrogators in other contexts who use more brutal methods), medical practitioners are not as well suited, by nature, training or circumstance, to detect lies, dishonesty, exaggeration or embellishment. The usual, and entirely understandable, starting premise of a medical practitioner is to accept and believe a patient’s account. Medical practitioners are not prosecutors and most are probably uncomfortable adopting an inquisitorial role. They are not trained in the art of cross-examination. And they are not exposed on a daily basis to persons who lie and cheat for financial reward.


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