forensic psychiatry

Dr. Goldwaser was named as a “Distinguished Life Fellow” of the American Psychiatric Association.

The objective of a forensic psychiatrist is to give expert opinion to a reasonable degree of medical certainty, in the form of a written report, deposition or courtroom testimony in legal cases.

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The Emperor’s New Clothes; A Closer Look at Malingered PTSD

By Alberto M. Goldwaser, MD

Perhaps more than any other psychiatric disorder, Post-Traumatic Stress Disorder, (heretofore PTSD) has influenced, and been influenced by, the law. In civil law, the PTSD diagnosis illustrates landmark admission that an external event can serve as a direct cause of a mental disorder. In criminal law, PTSD is unique among other mental disorders in its invocation by both the prosecution and defense.

PTSD has been officially used since 1988, when introduced in the Diagnostic and Statistical Manual of Mental Disorders, third edition (DSM-III). It then became a bonafide psychiatric disorder.

Sometime back, I wrote ("Personal Injury and Post Traumatic Stress Disorder," in the Bergen Barrister, May-July 1996) about how limiting this condition is to the individual suffering from it: "The Humpty Dumpty Affliction." It is a serious and debilitating condition. It is not created at will. It is beyond one's control.

I will now describe when PTSD is not: "The Emperor's New Clothes."

I refer to an illness that is essentially described by its symptoms, meaning the description of the person's subjective experiences. The expert's job during the psychiatric-legal (IME) investigation is to confront the presence or absense of signs (objective findings), and thus corroborate or refute the diagnosis of PTSD.

The possibility of PTSD being feigned (malingered) must always be considered. Since the specific criteria of PTSD is easily accessible to any interested person, it would not be too difficult for him/her to report the symptoms the examiner looks for, thus challenging the forensic psychiatrist to produce data that will withstand scientific and legal scrutiny.

Few personal injury cases reach the courts without an expressed or implied allegation of malingering, having as primary motivation, financial gain, and then sympathy and social support.

Malingering is listed in the DSM-IV – TR (fourth edition, text revision), as a condition not attributable to a mental disorder, that may become the focus of clinical attention. It is the "intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as …financial compensation" (APA 2000, p.739).

It is described in two varieties, pure and partial. The former relates to the feigning of disease when it does not exist at all. The latter is the conscious exaggeration of existing symptoms, or the fraudulent allegation that prior genuine symptoms are still present. No other syndrome is as easily defined, yet so difficult to diagnosis as malingering. Pure malingering is uncommon in PTSD cases, but exaggeration of symptoms is not.

In addition, the term False Imputation refers to ascribing actual symptoms to a cause consciously recognized as having no relationship to the symptoms. For example, the presence of authentic psychiatric symptoms due to clearly defined stresses during the Vietnam War may be falsely attributed to a traumatic event such as a car collision, in order to gain compensation.

Another example would be a stressful marital disharmony, predating a traumatic event at work, as being consciously designated as emanating from the work issue.

Traditionally, there were two main situations in which the diagnosis of malingering can be confirmed with certainty, when these persons think they are unobserved and are caught in the act, and when they actually confess that they are faking.

A crucial third option, and the one that shed the most light in the examination, consists of the thorough collection of collateral data, including any prior medical/psychiatric records, and complete progress notes of the therapist, rather than summary letters. If the clinician possesses more factual information about the case that the claimant believes, it helps the examiner to assess the claimant's veracity.

It is important to spend time studying the mind of the claimant. Only by assessing how his/her mental apparatus handled past events in general, traumatic and otherwise, are we able to elucidate the characterological make-up and thus the style of the response that the claimant uses, how adaptive or maladaptive it has been in the past, and how it was applied in the present situation.

One has to be quite versed in what PTSD is, to be able to differentiate it from what it is not.

Experienced clinicians recognize that there is a large degree of variability among individuals presenting with similar types of problems. The use of psychometric inventories (psychological testing) to assess psychopathology depends greatly on the honesty, accuracy, and consistency of self-reports. There may be motivation to distort the responses by either exaggerating or minimizing problem areas. MMPI (one of the psychological testing instruments commonly used), is just no more useful for faked PTSD. In general, they are not as conclusive, reliable, valid, and specific as we need them to be. The administration of Sodium Amytal proved not to be reliable in unmasking malingering. Hypnosis does not guarantee truth either. Voice stress analyzer is no more accurate than polygraphs.

Someone who suffered a personal injury may be motivated to exaggerate and magnify the severity of impairment to gain a higher monetary award or compensation. They may seek financial gain from Social Security disability, veteran's benefits, worker's compensation or damage for alleged psychological injury. Malingerers may seek to avoid conscription into the military, to be relieved for undesirable military assignments or to avoid combat. The defendant in a murder trial might be prone to feign mental illness in an attempt to gain an acquittal by reason of insanity; the parent in a child custody dispute may be prone to give an unrealistic favorable presentation in order to gain custody of the child.

The criminal may seek to avoid punishment by pretending to be incompetent to stand trial, insane at the time of the act, worthy of mitigation of penalty or too ill (incompetent) to be executed, and many other situations.
All this is of utmost important in all areas of forensic practice. The law is interested only in that which can reasonably be established by facts.

Psychic disorders that occurred after a trauma include PTSD, malingering, Depressive Disorder, Anxiety Disorders, Conversion Disorders, Post Concussion Disorder and Psychosis. All malingerers are actors that portray their illnesses, as they understand it. There are many characteristics that help the expert tease out real PTSD from non-real, aside from the categories described in the DSM.

Persons who have had true PTSD may exaggerate their symptoms or allege that symptoms persist when they no longer do. These are the most difficult cases to accurately assess, because by having been experienced before, it may not be all that difficult for some, to call forth the remembered symptoms, and apply them to this new occurrence.

The principle that courts will stigmatize a claimant as a malingerer only upon positive and convincing evidence justifying such a conclusion, is so well imbedded in our jurisprudence as to preclude the necessity for specific citations, (see Miller v. United States Fidelity and Guaranty Co., 99 So, 2d, 511, 516 (La. App. 1953)). The better the expert understands the phenomenology of PTSD, meaning the formal description of the component features defining this disorder, and the dynamic forces that predispose, determine, trigger, and fuel its presence and evolution, the easier it will be for the examiner to detect faked symptoms. It consists of conducting the study of whether and how these specific symptoms fit and interact within the entire personality organization of the individual in question. To conclude feigning, the examiner must look beyond general credibility issues, into these characterological aspects of the examinee. We can then detect a great many inconsistencies.

By Alberto M. Goldwaser, MD

Perhaps more than any other psychiatric disorder, Post-Traumatic Stress Disorder, (heretofore PTSD) has influenced, and been influenced by, the law. In civil law, the PTSD diagnosis illustrates landmark admission that an external event can serve as a direct cause of a mental disorder. In criminal law, PTSD is unique among other mental disorders in its invocation by both the prosecution and defense.

PTSD has been officially used since 1988, when introduced in the Diagnostic and Statistical Manual of Mental Disorders, third edition (DSM-III). It then became a bonafide psychiatric disorder.

Sometime back, I wrote (“Personal Injury and Post Traumatic Stress Disorder,” in the Bergen Barrister, May-July 1996) about how limiting this condition is to the individual suffering from it: “The Humpty Dumpty Affliction.” It is a serious and debilitating condition. It is not created at will. It is beyond one’s control.

I will now describe when PTSD is not: “The Emperor’s New Clothes.”

I refer to an illness that is essentially described by its symptoms, meaning the description of the person’s subjective experiences. The expert’s job during the psychiatric-legal (IME) investigation is to confront the presence or absense of signs (objective findings), and thus corroborate or refute the diagnosis of PTSD.

The possibility of PTSD being feigned (malingered) must always be considered. Since the specific criteria of PTSD is easily accessible to any interested person, it would not be too difficult for him/her to report the symptoms the examiner looks for, thus challenging the forensic psychiatrist to produce data that will withstand scientific and legal scrutiny.

Few personal injury cases reach the courts without an expressed or implied allegation of malingering, having as primary motivation, financial gain, and then sympathy and social support.

Malingering is listed in the DSM-IV – TR (fourth edition, text revision), as a condition not attributable to a mental disorder, that may become the focus of clinical attention. It is the “intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as …financial compensation” (APA 2000, p.739).

It is described in two varieties, pure and partial. The former relates to the feigning of disease when it does not exist at all. The latter is the conscious exaggeration of existing symptoms, or the fraudulent allegation that prior genuine symptoms are still present. No other syndrome is as easily defined, yet so difficult to diagnosis as malingering. Pure malingering is uncommon in PTSD cases, but exaggeration of symptoms is not.

In addition, the term False Imputation refers to ascribing actual symptoms to a cause consciously recognized as having no relationship to the symptoms. For example, the presence of authentic psychiatric symptoms due to clearly defined stresses during the Vietnam War may be falsely attributed to a traumatic event such as a car collision, in order to gain compensation.

Another example would be a stressful marital disharmony, predating a traumatic event at work, as being consciously designated as emanating from the work issue.

Traditionally, there were two main situations in which the diagnosis of malingering can be confirmed with certainty, when these persons think they are unobserved and are caught in the act, and when they actually confess that they are faking.

A crucial third option, and the one that shed the most light in the examination, consists of the thorough collection of collateral data, including any prior medical/psychiatric records, and complete progress notes of the therapist, rather than summary letters. If the clinician possesses more factual information about the case that the claimant believes, it helps the examiner to assess the claimant’s veracity.

It is important to spend time studying the mind of the claimant. Only by assessing how his/her mental apparatus handled past events in general, traumatic and otherwise, are we able to elucidate the characterological make-up and thus the style of the response that the claimant uses, how adaptive or maladaptive it has been in the past, and how it was applied in the present situation.

One has to be quite versed in what PTSD is, to be able to differentiate it from what it is not.

Experienced clinicians recognize that there is a large degree of variability among individuals presenting with similar types of problems. The use of psychometric inventories (psychological testing) to assess psychopathology depends greatly on the honesty, accuracy, and consistency of self-reports. There may be motivation to distort the responses by either exaggerating or minimizing problem areas. MMPI (one of the psychological testing instruments commonly used), is just no more useful for faked PTSD. In general, they are not as conclusive, reliable, valid, and specific as we need them to be. The administration of Sodium Amytal proved not to be reliable in unmasking malingering. Hypnosis does not guarantee truth either. Voice stress analyzer is no more accurate than polygraphs.

Someone who suffered a personal injury may be motivated to exaggerate and magnify the severity of impairment to gain a higher monetary award or compensation. They may seek financial gain from Social Security disability, veteran’s benefits, worker’s compensation or damage for alleged psychological injury. Malingerers may seek to avoid conscription into the military, to be relieved for undesirable military assignments or to avoid combat. The defendant in a murder trial might be prone to feign mental illness in an attempt to gain an acquittal by reason of insanity; the parent in a child custody dispute may be prone to give an unrealistic favorable presentation in order to gain custody of the child.

The criminal may seek to avoid punishment by pretending to be incompetent to stand trial, insane at the time of the act, worthy of mitigation of penalty or too ill (incompetent) to be executed, and many other situations.
All this is of utmost important in all areas of forensic practice. The law is interested only in that which can reasonably be established by facts.

Psychic disorders that occurred after a trauma include PTSD, malingering, Depressive Disorder, Anxiety Disorders, Conversion Disorders, Post Concussion Disorder and Psychosis. All malingerers are actors that portray their illnesses, as they understand it. There are many characteristics that help the expert tease out real PTSD from non-real, aside from the categories described in the DSM.

Persons who have had true PTSD may exaggerate their symptoms or allege that symptoms persist when they no longer do. These are the most difficult cases to accurately assess, because by having been experienced before, it may not be all that difficult for some, to call forth the remembered symptoms, and apply them to this new occurrence.

The principle that courts will stigmatize a claimant as a malingerer only upon positive and convincing evidence justifying such a conclusion, is so well imbedded in our jurisprudence as to preclude the necessity for specific citations, (see Miller v. United States Fidelity and Guaranty Co., 99 So, 2d, 511, 516 (La. App. 1953)). The better the expert understands the phenomenology of PTSD, meaning the formal description of the component features defining this disorder, and the dynamic forces that predispose, determine, trigger, and fuel its presence and evolution, the easier it will be for the examiner to detect faked symptoms. It consists of conducting the study of whether and how these specific symptoms fit and interact within the entire personality organization of the individual in question. To conclude feigning, the examiner must look beyond general credibility issues, into these characterological aspects of the examinee. We can then detect a great many inconsistencies.

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Forensic Psychiatry

Forensic psychiatry is a medical subspecialty that combines research and clinical practice in the numerous areas in which psychiatry is applied to legal issues. Dr. Alberto M. Goldwaser has provided expert opinions through preparation of narrative reports and testifying in depositions and courts.

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