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Chapter 5 Competence to Be Sentenced This chapter concerns competence for sentencing. This is a relatively rare issue for forensic clinicians, so there is only one case included. The principle applied to this case involves the use of psychological testing when appropriate to assess response style. A particular kind of malingering—the feigning of cognitive deficits—is discussed in the teaching point. Case 1 Principle: Use testing when indicated in assessing response style This principle addresses the value of using psychological and specialized testing to assess response style in FMHA. Response style is an important consideration in FMHA; it refers to the exaggeration, minimization, or accurate reporting of symptoms of mental or emotional disorder. When an individual exaggerates (or even fabricates) symptoms, or when symptoms that are genuinely experienced are minimized or denied, then self-report is less useful and must be deemphasized accordingly. The assessment of response style in FMHA is particularly important because of the incentives that exist in forensic contexts and the perception by judges and attorneys that self-reported information may, therefore, be inaccurate. Rogers (1984, 1997) has described response style as having four distinct forms: (1) Reliable/Honest, in which a genuine attempt is made to be accurate, and factual inaccuracies result from poor understanding or misperception; (2) Malingering, involving a conscious fabrication or gross exaggeration of psychological and/or physical symptoms, understandable in light of the individual’s circumstances and not attributable merely to the desire to assume the patient role, as in factitious disorder; (3) Defensive, in which there is a conscious denial or gross minimization of psychological and/or physical symptoms, as distinguished from ego defenses, which involve intrapsychic processes that distort perception; and (4) Irrelevant, involving the failure to become engaged in the evaluation, with responses not necessarily relevant to questions and sometimes 85 Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/waldenu/detail.action?docID=241493. Created from waldenu on 2020-10-14 15:09:33. Copyright © 2002. Oxford University Press. All rights reserved. 86 • Forensic Mental Health Assessment made randomly. These four distinct styles provide a useful framework for evaluating response style. Response style can be assessed through the use of some traditional psychological tests and interviews, as well as by specialized measures that have been specifically designed and developed for this purpose. It is important to note that relatively few psychological tests include any measure of response style, despite the importance of self-report in such tests, and the related assumption that the individual being tested is not deliberately distorting his or her own experience. This was discussed in a recent chapter (Greene, 1997) on the use of several multiscale personality inventories, such as the Minnesota Multiphasic Personality Inventory, 2nd edition (MMPI-2) and the Millon Clinical Multiaxial Inventory-III (Millon, 1994), in assessing malingering and defensiveness. In addition, Rogers (1997) discussed the use of the Structured Interview of Reported Symptoms (SIRS) and its application to malingering. In discussing such tests, it is important to consider both the consistency and accuracy of responding, which encompass underreporting and overreporting. We will describe evidence on item response consistency and the accuracy of responding for the MMPI-2, the MCMI-III, and the SIRS. Greene (1997) noted that response consistency on the MMPI-2 is assessed through visual inspection for obvious patterns (e.g., TFTFTF, TTFTTF) and by observing the elevation of the F scale. In addition, response inconsistency on the MMPI-2 can be detected through an examination of the Variable Response Inconsistency Scale (VRIN) and the True Response Inconsistency Scale (TRIN), although additional research is needed to provide information regarding the optimal cutoff score for VRIN. With respect to the accuracy of item endorsement, the MMPI-2 contains several scales that are relevant to underreporting or overendorsement of psychopathological symptoms. The results of several recent studies, in which participants were provided with detailed information on the nature of the psychopathology to be faked, suggest that the MMPI-2 validity scales are reasonably effective in distinguishing genuine mental disorders characterized by severe psychopathology, such as schizophrenia, from simulated disorders (Rogers, Bagby, & Chakraborty, 1993). Other research, however, suggests that the MMPI-2 validity scales are less effective in distinguishing between genuine but less severe disorders and faking (Lamb, Berry, Wetter, & Baer, 1994; Wetter, Baer, Berry, Robinson, & Sumpter, 1993). Greene (1997) noted that response consistency on the MCMI-III is assessed through a 3-item Validity Index that contains nonbizarre items endorsed by less than 0.01% of individuals from clinical populations. The endorsement of one such item suggests caution in the interpretation of the results, while the endorsement of two items indicates an invalid profile (Millon, 1994). The MCMI-III contains a validity scale that is useful in detecting the accuracy of item endorsement. Specifically, the Debasement Scale (Scale Z) of the MCMIIII has been shown to identify college students who were instructed to malinger on the MCMI-II (Bagby, Gillis, Toner, & Goldberg, 1991). Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/waldenu/detail.action?docID=241493. Created from waldenu on 2020-10-14 15:09:33. Copyright © 2002. Oxford University Press. All rights reserved. Competence to Be Sentenced • 87 The SIRS (Rogers, 1992), a 172-item structured interview with eight primary scales, was developed specifically for assessing the feigning of psychopathology. Research with the SIRS suggests that it is effective in discriminating between feigners and genuine patients (Rogers, 1997). The SIRS is limited, however, by its inability to detect a malingerer who falsely reports a single symptom and fails to respond meaningfully to a number of questions. In addition, the SIRS provides limited information regarding the “partial malingerer”— the individual who experiences genuine symptoms but who also selectively reports, exaggerates, or fabricates some symptoms depending on the circumstances. This principle appears to be well supported on ethical, empirical, and standard of practice dimensions. It is important, however, that forensic practitioners select the few tests that meet the appropriate criteria for relevance and empirical support. Toward this end, Heilbrun (1992) offered guidelines that include the explicit assessment of response style through the use of tests, such as the MMPI-2, that have demonstrated empirical support for this application. There are also several interview strategies that can help the forensic practitioner in assessing response style. For example, asking specific and detailed questions, recording the responses, and asking the questions again later in the evaluation can help the forensic practitioner to assess consistency. Finally, when assessing an individual’s response style, it is important for the forensic practitioner to employ multiple measures. The use of multiple measures, such as psychological tests, structured interviews, and collateral information, provides additional support for conclusions regarding the individual’s response style. The present report illustrates the application of this principle in the context of a court-ordered evaluation of competence to enter a plea and to be sentenced. Because the referral question involved the cognitive capacity of the defendant to understand his current situation, the evaluator was concerned with obtaining an accurate representation of the defendant’s cognitive functioning. Therefore, an accurate assessment of the defendant’s response style was necessary. Because the evaluator was skeptical about the accuracy of the self-reported psychopathological symptoms, he addressed the possibility of the defendant’s malingering. The determination of malingering was made through the use of interview strategies and psychological testing. As part of the evaluation, the defendant was administered several psychological tests, such as the SIRS and the MMPI2, that have demonstrated empirical support in detecting malingering. This selection of tests is consistent with the guidelines offered by Heilbrun (1992) regarding the assessment of response style by using tests with empirical support for that purpose. Because the evaluator suspected that the defendant was malingering, the defendant was administered psychological tests on three occasions in an effort to assess consistency of responding. The results of the first administration of the SIRS suggested that the defendant was misrepresenting himself as mentally ill; his responses were consistent Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/waldenu/detail.action?docID=241493. Created from waldenu on 2020-10-14 15:09:33. Copyright © 2002. Oxford University Press. All rights reserved. 88 • Forensic Mental Health Assessment with those of someone intending to feign a psychotic disorder. Specifically, he endorsed an excessively high number of unusual symptom combinations. Because the defendant was exaggerating his psychopathological symptoms, his response style would be characterized as malingering (Rogers, 1984, 1997). The defendant scored in the “Definitely Malingering” range on one scale, and in the “Probably Malingering” range on four others. After the evaluator spoke with the defendant regarding the possibility that the defendant was feigning mental illness, the defendant was readministered the SIRS. The results indicated that the defendant substantially modified his report of psychopathological symptoms. On the second administration, the defendant scored in the “Probably Malingering” range on only two scales. As such, the SIRS provided one effective means of assessing malingering in this case. The defendant was also administered the MMPI-2. He consistently endorsed items reflecting psychopathology, with the number of items endorsed far exceeding the number of items usually endorsed by patients. The MMPI-2 VRIN, TRIN, and F scales reflected scores consistent with a pattern of responding often seen in individuals trying to feign mental disorder. When the MMPI2 was readministered, the defendant’s response style would be classified as irrelevant (Rogers, 1984, 1997). Based on the results of the psychological testing, the evaluator concluded that the defendant presented with a malingering response style. By using psychological tests with demonstrated empirical support for the evaluation of response style, the evaluator was able to more accurately assess the defendant’s response style. The defendant’s pattern of responding on the SIRS and MMPI2 was consistent with the performance of individuals who are attempting to feign mental illness by exaggerating psychopathological symptoms. The evaluator concluded that the defendant was malingering psychopathology, motivated by his expectation that a diagnosis of schizophrenia might contribute to a reduced sentence. Based on the results of the evaluation, which included a thorough assessment of the defendant’s response style, the evaluator concluded that the defendant was competent to proceed with the plea agreement and subsequent sentencing. FORENSIC REPORT1 Prisoners by the U.S. District Court for the Western District of Missouri pursuant to Title 18, U.S. Dates of Evaluation: July 29 to August 30, 1999 Code, Section 4241 and 4247(b). According to Date of Report: August 30, 1999 the documents provided by the U.S. Attorney assigned to the case, DV was charged with Possession of a Firearm by a Convicted Felon. REFERRAL The referring Court directed that a mental DV is a 36-year-old, single Black male who was health professional at the Medical Center examreferred to the U.S. Medical Center for Federal ine DV and provide an opinion regarding his Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/waldenu/detail.action?docID=241493. Created from waldenu on 2020-10-14 15:09:33. Copyright © 2002. Oxford University Press. All rights reserved. Competence to Be Sentenced • 89 competency to enter a plea and to be sentenced. 5. DV Proffer, undated. Prior to beginning the initial interview, DV was 6. Indictment, United States District Court for the Western District of Missouri, informed that the usual psychotherapist/patient dated March 31, 1998. relationship did not exist and that the informa- 7. Report of Investigation, dated February tion obtained from the evaluation was not confi- 12, 1998. dential. He was also informed that a report would 8. Springfield Police Department Statement be prepared and submitted to the referring Court Form, dated January 27, 1998. and then be distributed to both the defense and 9. Offense-Incident Report, Springfield Poprosecuting attorneys. DV acknowledged and ap- lice Department, dated January 27, peared to understand these conditions and was 1998. periodically reminded of the conditions as the 10. Complaint/Arrest Affidavit, undated. evaluation progressed. DEFENDANT’S PERSONAL HISTORY SOURCES OF INFORMATION DV’s personal history was obtained through self- This evaluation was conducted in the Mental report and review of criminal investigative mate- Health Evaluation Unit of the U.S. Medical Cen- rials. ter for Federal Prisoners. During his stay at the DV stated that he lived at home with his facility, DV was regularly observed by clinical mother, father, and two brothers until the age of and correctional staff. He participated in addi- 8, when his mother was killed in a car accident. tional clinical interviews with the undersigned DV stated that after his mother’s death, he began evaluators. Additionally, the medical staff com- living with an aunt, who raised him until he left pleted a routine physical examination of DV. home at the age of 14. He stated that when he Other sources of information included psycholog- was 14 years old he moved to Missouri, where he ical testing, including: initially lived with his older brother. According to DV, he attended school through 1. Validity Indicator Profile the eighth grade. He stated that he was expelled 2. Rey 15-Item Memory Test 3. Rey Auditory Verbal Learning Test from school after the eighth grade, partly because 4. Dot Counting Test of his poor attendance and partly because of his 5. Rey Word Recognition Test involvement in two fights. He reported repeating 6. Test of Nonverbal Intelligence-2 the eighth grade once due to his poor attendance. 7. Structured Interview of Reported Symp- DV stated that his grades were mostly Bs, Cs, and toms Ds. He described school as being difficult for him 8. Minnesota Multiphasic Personality Inven- because he never had any family support. He tory-2 stated that after his mother died, nobody really 9. Shipley Institute of Living Scale cared whether he went to school. He denied ever Documents reviewed included prior medical attending special education classes or being diagnosed with a learning disability. records, and criminal investigative materials, inDV stated that he began smoking marijuana as cluding: a teenager and has continued to use it throughout 1. Order for Psychiatric Examination of De- adulthood. He reported that prior to his arrest, fendant, United States District Court for he used marijuana on a daily basis. He stated that the Western District of Missouri, dated he drinks alcohol much less frequently, primarily July 14, 1999. on the weekends or when it was available. He 2. United States Government Memoran- stated that selling illicit drugs has been his pri- dum dated May 5, 1999. mary source of income through the years. 3. United States Government MemoranDV stated that he has two sons. He reported dum dated May 4, 1999. 4. Plea Agreement, United States District having a close relationship with his 10-year-old Court for the Western District of Mis- son, who lives in another state. He reported havsouri, dated April 26, 1999. ing little to no contact with his 13-year-old son, Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/waldenu/detail.action?docID=241493. Created from waldenu on 2020-10-14 15:09:33. Copyright © 2002. Oxford University Press. All rights reserved. 90 • Forensic Mental Health Assessment who lives in yet another state. He reported a se- During formal interviews, DV was initially ries of brief relationships with women, never hav- uncooperative with the evaluators. He was noning sustained a relationship for longer than 6 disclosing and pretended not to understand what months. was asked of him. He was strongly encouraged to DV stated that he has been arrested at least cooperate with the evaluation. After a period of 20 times throughout adolescence and adulthood. observation and initial psychological testing, we He has been incarcerated in state prisons twice, explained to him that his report of experiencing both for felony convictions. According to DV, auditory hallucinations was unlikely to be true. the only previous mental health treatment he has We informed him that we did not believe he had received was during his incarceration in a state any mental disorder. DV ostensibly changed his prison. He stated that he had been experiencing attitude and agreed to cooperate with us. He told nervousness, tremors, and what he referred to as us that he was not mentally ill, but he seemed to “depression.” This “condition” was reportedly want to continue to present himself as somewhat treated with antipsychotic medication for a pe- impaired. He also agreed to recomplete some of riod of 6 months. His reports of past mental the psychological testing that had previously been health symptoms were vague, and he indicated administered to him. Because his performance on that he has never sought mental health treatment tests in the second administration did not subwhen out of prison. stantially improve, we met with him again and reemphasized the importance of answering test items truthfully and to the best of his ability. He insisted that he had done his best. We took the HOSPITAL COURSE position that perhaps he had not understood the DV was admitted to the Mental Health Evalua- directions for the testing and reexplained how to tion Unit on July 29, 1999. On admission, he was complete the tests. He was then tested a third housed in a locked ward, as is standard policy. time and improved substantially. Initially, DV was cooperative but guarded. He gave a vague and unconvincing report of hearing voices and stated that he experienced difficulty sleeping. MENTAL STATUS AT He reported receiving treatment in the past with THE PRESENT TIME antidepressant medication for “depression.” On arrival at the Medical Center, DV was re- DV was alert and oriented to person, place, time, ceiving thioridazine (an antipsychotic medica- and situation. His speech was clear and coherent, tion, 200 mg at bedtime). This medication had although low in volume and slowly delivered. recently been prescribed in the county jail based on Psychomotor movements were slow. There was a brief interview, and was discontinued by the staff no evidence of thought disorder. His thinking was psychiatrist after the initial interview. He received linear, relevant, coherent, and organized, and diphenhydramine (50 mg at bedtime, as needed) showed no evidence of delusional content. DV’s throughout the study period to help him sleep. mood was euthymic. He displayed a limited By August 5, DV had displayed no evidence range of emotional expression. He demonstrated of problems from the discontinuation of medica- no apparent psychosis. He denied any current suition. He was cooperative, and he was deemed cidal or homicidal ideation or intent. suitable for transfer to an unlocked unit. He was allowed to go unescorted throughout the institution to various activities. He managed his daily PSYCHOLOGICAL TEST RESULTS routine in the institution with full capacity to care for himself. Hygiene and personal grooming DV was administered psychological testing on were satisfactory. DV interacted appropriately three separate occasions. Initial test results clearly with staff members and other inmates. He inter- revealed that DV intended to represent himself mittently complained of difficulty sleeping. No as mentally ill and confused. He was presented disturbance in appetite was noted. with our conclusion that he had been feigning Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/waldenu/detail.action?docID=241493. Created from waldenu on 2020-10-14 15:09:33. Copyright © 2002. Oxford University Press. All rights reserved. Competence to Be Sentenced • 91 mental illness. He claimed he had not and agreed When these measures were readministered in the to be retested with some of the tests. His perfor- second testing session, they continued to indicate mance on the second attempt did not suggest ac- that he was only providing token effort to respond tive feigning, but he did not appear engaged in correctly, and tests of cognitive ability were not giving an accurate portrayal of his abilities. After administered. In the third testing session, he refurther counseling, he was readministered two sponded with much greater effort. Repeat administests, which he appeared to complete in a cooper- tration of tests of cognitive ability indicated he had ative fashion. at least Low Average ability in nonverbal reasoning, DV’s responses on a structured interview of word knowledge, and verbal comprehension.7 symptoms of mental illness were consistent with those of someone intending to feign psychotic mental illness. He endorsed an excessively high DIAGNOSTIC FORMULATION number of unusual symptom combinations. He tended to report that he had experienced almost DV does not manifest a mental disorder. Over any type of unusual psychotic experience with a the period of this evaluation, DV’s behavior was high degree of impairment.2 When this test was observed on a daily basis. He demonstrated excelreadministered, he substantially modified his re- lent hygiene and organization in daily behavior, port of problems but still endorsed an unusually but he appeared to make an attempt to malinger large number of psychological problems with sig- mental illness. He actively reported to nursing nificant levels of impairment. This pattern of re- and correctional staff that he was hearing voices. sponding was not as clearly similar to that of indi- He acted confused when they questioned him viduals who malinger mental disorder.3 about his complaints. When evaluated by the exOn a self-report inventory of personality char- aminers in formal interviews, however, these acteristics, DV’s responses were consistent and complaints appeared feigned. reflected a good comprehension of the test items. His initial performance on psychological tests He consistently endorsed items obviously related was consistent with that of individuals who feign to psychopathology. He endorsed a significant mental illness. In addition to exaggerating comnumber of items infrequently endorsed by chronic monly experienced symptoms of mental illness, mental health patients. Additionally, the number DV reported experiencing an abundance of unbeof mental health symptoms he endorsed far ex- lievable and unlikely symptoms. Not only was his ceeded the number of items typically endorsed by test performance unbelievable it was also inconsismental health patients.4 This pattern of respond- tent with his daily behavior. When he was told that ing is typically seen among individuals who wish his presentation was not believable, he promptto feign mental disorder. When this test was read- ly ceased portraying himself as mentally ill. ministered, his responses appeared to be irrele- Although DV stopped actively feigning menvant to content and too inconsistent to interpret. tal illness, and in fact told us that he was not It was likely that he responded without paying mentally ill, he nevertheless continued to underclose attention to the test statements.5 represent his cognitive abilities on psychological DV’s performance on several tests of memory tests. As we continued to emphasize the need to was also consistent with that of someone who is cooperate with testing, he gradually became more feigning cognitive impairment. For example, he cooperative, and his performance improved. His presented with a greater ability to recall words for gradual improvement supports the conclusion memory than to recognize them. This finding is that it was his approach to evaluation rather than typically restricted to individuals who are feigning genuine deficits that was responsible for his inimemory impairment. tially poor performance on tests of memory and 6 His first efforts on tests of cognitive ability re- cognition. sulted in estimate of ability in the range of Mild DV reported receiving antipsychotic medicaMental Retardation. Measures of motivation and tion while incarcerated in a state prison. He effort, however, indicated that he was motivated stated that he was treated for what he referred to to respond incorrectly or to give minimal effort. as depression, but it is unlikely that he has ever Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/waldenu/detail.action?docID=241493. Created from waldenu on 2020-10-14 15:09:33. Copyright © 2002. Oxford University Press. All rights reserved. 92 • Forensic Mental Health Assessment experienced a clinical depression. DV’s report of agreement. He accurately and completely related past symptoms of depression and psychosis was the circumstances of the offense to which he has vague and unconvincing. Based on a brief inter- pled guilty. He fully described the process of view, he recently received a diagnosis of schizo- making a plea. DV knew he has the choice to phrenia in the county jail. This conclusion was stand trial, and he believes that entering a plea probably the result of undetected malingering. provides a better outcome. He knew that the curDV appears to have been malingering in a rent adjudication constitutes his third felony conhalfhearted fashion. He was apparently aware viction, and he knew the sentencing mandates asthat his recent diagnosis of schizophrenia might sociated with a third felony conviction. That is, contribute toward a reduced sentence, even be- DV was aware that he could have received a very yond the reduction gained in his plea agreement. lengthy sentence for his third conviction and When faced with the prospect of having us report knew his plea carried the probability of a relato the court that he was malingering, however, tively short sentence. He knew that his plea agreehe clearly changed his report of confusion and ment called for his full cooperation in the resolupsychotic experience. He claimed he had no tion of his case. When we indicated that we mental disorder and eventually chose to reveal his thought he was not cooperating with the evaluatrue abilities on psychological testing. He is not tion sought by the court by actively misrepresentcurrently malingering. ing his true mental state, he became very conDV does not manifest a mental disorder. He cerned and substantially modified what he told us does manifest a personality style and behavior about his mental state. His thinking evidenced no pattern that is characterized by antipathy toward irrational reasoning or delusional content. His authority and violation of social norms and laws. conduct throughout the course of his hospitalizaHe is persistently irresponsible in relationships tion, especially in interview with us, demonstrated and personal commitments. He has abused mari- that he is quite capable of communicating effecjuana throughout his adolescence and adulthood. tively with his attorney. He knew that the senHis personality style does not generally constitute tence he was anticipating was based on an agreea mental illness. ment with the prosecutor, was not binding on the court, and was intended to punish him for his behavior. He expressed confidence in his attorney DIAGNOSES and related several instances of cooperation with According to the criteria set forth in the Diagnos- his attorney in reaching the plea agreement. tic and Statistical Manual of Mental Disorders, Based on these considerations, it is our opinFourth Edition (American Psychiatric Associa- ion that DV is competent to proceed with his tion, 1994), DV is diagnosed as follows: case. He is aware of the nature and potential consequences of the charge against him and he is able Axis I: Malingering (resolved) to properly assist his attorney in this matter. He Cannabis abuse has a rational and factual appreciation of the cirAxis II: Antisocial personality disorder cumstances relating to his potential sentence. He Axis III: None does not manifest a mental disorder that would interfere with these abilities. OPINION CONCERNING Comment The determination of malingering in COMPETENCY TO PROCEED this case was initiated by a skepticism about DV was aware of the terms and conditions of his symptoms reported by the defendant. His report plea agreement. He recognized the consequences of depression was inconsistent with the applicaof a guilty plea and was able to articulate rational tion of antipsychotic medications. It is not unand coherent reasons for entering such a plea. He usual, however, for individuals with psychosis to demonstrated an awareness of the potential bene- sometimes misunderstand or underreport prior fits of accepting a plea agreement, as well as the psychotic episodes, misrepresenting them as “depossible consequences of violating te terms of the pression” or “nervous breakdowns.” In the case of Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/waldenu/detail.action?docID=241493. Created from waldenu on 2020-10-14 15:09:33. Copyright © 2002. Oxford University Press. All rights reserved. Competence to Be Sentenced • 93 DV, when asked to describe his episode of de- to claim that he had not been faking, did not have pression, he reported that he had heard voices, a mental disorder, and had responded truthfully and he reported nothing more. We chose not to to testing. When he was retested, he did not perquestion the examinee about a list of possible ex- form well, continuing to report some problems periences, preferring instead to ask open-ended on the SIRS and responding randomly on the questions and evaluating the completeness of his MMPI-2. He made only a token effort to perform response. Because of our advantage of inpatient well on the VIP. Given the importance of his cogevaluation, with individuals under constant ob- nitive capacity to know what was happening in servation, we can safely observe individuals over his case, we were most concerned with obtaining time without medication to see if they demon- a valid representation of his thinking skills. DV strate a coherence of symptomatology that would was no longer actively feigning a psychotic disorsuggest a mental disorder. DV demonstrated der, but he was unwilling to reveal his true cognisymptoms of mental disorder only in conversa- tive abilities. Our strategy was to reapproach him tions with direct care staff and not in interactions for testing, allowing him to “save face.” We sugwith other defendants or with secondary adminis- gested the possibility that we had not given clear trative staff. instructions on how to complete the test and reInitial psychological testing was quite helpful explained them in excessive detail. With this bato direct our attention to the likelihood he was sis for explaining his previous poor performance, faking a mental disorder. Engaging DV in an open he was free to respond correctly, and did so. discussion of what was happening was more difficult. Based on the SIRS, MMPI-2, and VIP re- Karin Towers, J.D., M.A. sults, we were rather confident that DV was mis- Psychology Intern representing his true mental state. When we told him that we did not believe he had a mental dis- Richard Frederick, Ph.D. order and was faking symptoms, his response was Diplomate in Forensic Psychology, ABPP Teaching point: How do you assess feigned cognitive deficits? Consistent with Heilbrun’s (1992) exhortation to use tests with demonstrated empirical support for identification of invalid response styles, Van Gorp and colleagues (1999) found that tests that specifically assess malingering classified invalid response styles more accurately than some recommended posttest analyses of standard neuropsychological procedures. When cognitive impairment is potentially at issue in a forensic examination, I routinely have examinees complete a number of procedures and tests that specifically assess the reliability of their presentation. I follow Rogers’s (1997) guidance to gather convincing evidence of malingering and to understand the motives of the test taker before concluding that malingering exists. Convincing evidence of malingering includes instances of improbability in testing and clinical presentation. Examiners should look at all the evidence, including clinical presentation, test findings, the case history, and potential gain for misrepresentation of abilities, to make sense of all the information. Courts are often interested in the capacity of criminal defendants to reason, attend, concentrate, track proceedings, and remember salient details. Courts, compensation boards, and juries must determine whether civil plainHeilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/waldenu/detail.action?docID=241493. Created from waldenu on 2020-10-14 15:09:33. Copyright © 2002. Oxford University Press. All rights reserved. 94 • Forensic Mental Health Assessment tiffs have suffered compensable impairment in functional cognitive capacities, intellect, or memory ability. Psychologists and neuropsychologists have developed a number of tests to identify impairments in these capacities but relatively few evaluate response style. The VIP is the only commercially available test that has been developed and validated to directly evaluate the believability of presentation of ability in reasoning, intellect, and word knowledge (Frederick & Crosby, 2000). Some other tests and procedures have been reported for this purpose but are not routinely available or well validated. By contrast, there are a number of procedures available to assess memory impairment. The Portland Digit Recognition Test (PDRT; Binder, 1990) and the Test of Memory Malingering (TOMM; Tombaugh, 1997) have a extensive literature establishing their validity. The TOMM, in particular, has identified performance characteristics for a number of clinical conditions involving brain impairment (e.g., Ress, Tombaugh, Gansler, & Moczynski, 1998). Currently, the primary strategy of identifying suspicious performance for these tests is to identify the range of errors that are likely for individuals with genuine memory impairment and to establish that as the lower boundary of acceptable performance. The PDRT requires a relatively long time (up to an hour) to present 5-digit strings for memorization and recognition, but the TOMM can be administered much more quickly, in as little as 5 to 10 minutes. It uses simple line drawings. Some of the drawbacks of the PDRT have been eliminated with the development of the Victoria Symptom Validity Test (VSVT; Slick, Hopp, Strauss, & Thompson, 1997), a test that administers 5-digit strings for memorization and recognition by computer. The VSVT provides a useful analysis of errors and response time. The manual is quite helpful in interpreting the meaning of recognition errors. I like to use a number of procedures developed by Andre Rey, a neuropsychologist in Geneva from the 1930s to the 1960s. These include the Word Recognition Test (WRT), the Auditory Verbal Learning Test (AVLT), and the 15-item Rey Memory Test (RMT, known by a number of slightly dissimilar names). Rey’s procedures are not well established as malingering detection techniques, although they have received more examination on malingering detection than any other technique in the professional literature. The Rey techniques were primarily introduced to the United States through Lezak’s 1983 book on neuropsychological assessment. When read in the original French, however, it appears that Lezak did not accurately report Rey’s test procedures and instructional sets, or fully communicate Rey’s approach to malingering detection. Rey (1958) clearly stated that his techniques were merely “signs” and cautioned against overinterpretation, noting that the presence of a single positive sign should not cause the evaluator to reach a conclusion of malingering. These techniques and their various instructional sets have been described (Frederick, 1997), and the applicable literature reviewed (Frederick, Crosby, & Wynkoop, 2000). The Rey 15-Item Memory Test (RMT) presents 15 items on a sheet of paper for visual memorization. Failure to reproduce nine items is generally Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/waldenu/detail.action?docID=241493. Created from waldenu on 2020-10-14 15:09:33. Copyright © 2002. Oxford University Press. All rights reserved. Competence to Be Sentenced • 95 considered predictive of malingering, unless severe impairment is present or possible. Frederick (2000a) demonstrated that the RMT is especially useful in criminal forensic evaluations (which are not primarily neuropsychological) in identifying malingering. Greiffenstein, Baker, and Gola (1996) examined a number of methods of evaluating memory complaints. They found that comparing performance on Rey’s recognition and recall memory techniques was useful in identifying malingered memory impairment. Given that recognition memory should be much stronger than recall memory, performances in which recall appears stronger than recognition require close scrutiny (see also Frederick, 2000b). It is possible to evaluate complaints of amnesia by developing a recognition test that is individually tailored to the information the patient claims not to know (Frederick, Carter, & Powel, 1995; Frederick & Denney, 1998). I have found that such assessment of claimed amnesia has much greater sensitivity than indirect assessment by available malingering tests. Making sense of the presentation means integrating information from history, testing, clinical presentation, and the incentive for malingering to form hypotheses about the patient. In evaluating evidence relevant to these hypotheses, it is sometimes useful to confront the patient with concerns that their testing performance does not reflect their best abilities and to ask to retest them. In the example we presented, there was clear evidence that we could not trust results of the first testing, nor could we support hypotheses that considered the results of this testing to be accurate. Notes 1. Identifying information about this individual, including initials, certain demographic information, some case characteristics, and the referring court have all been disguised to protect his identity. 2. On the first administration of the SIRS he scored “Definitely Malingering” in the Severity category, and “Probably Malingering” in the Blatant, Subtle, Selectivity, and Symptom Combination categories. 3. On the second administration of the SIRS, he scored “Probably Malingering” in the Subtle and Severity categories. 4. On the MMPI-2 first administration, VRIN = 6, F = 37, Fb = 22, and F(p) = 8. 5. On the second administration of the MMPI-2, VRIN = 10, F = 28, Fb = 13, *F − Fb* = 15, F(p) = 3. 6. He recalled six words on the Rey AVLT first trial. On the Rey WRT, he correctly recognized five words and misrecognized five words. On the Rey 15-item test, he reproduced six items correctly. One row of the two reproduced was a combination of sticks and a circle. 7. On the first administration of the VIP, his performance were classified as “irrelevant,” with a total score of 55/100 on the nonverbal subtest and 39/78 on the verbal subtest. On the second administration of the VIP, his performances were classified as “careless,” with a total score of 54/100 on the nonverbal subtest and 49/78 on the verbal subtest. For the third testing session, only the nonverbal subtest was administered. His performance was classified as “compliant,” with a total score of 74/100. Heilbrun, Kirk, et al. Forensic Mental Health Assessment : A Casebook, Oxford University Press, 2002. ProQuest

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