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MCA blog 2023: Feigned symptoms in the Courts

By Aqsa Hussain

Published In: Court of Protection

Feigning is to pretend to have a particular problem and is different in clinical presentation. Feigning can also be differing in motive for reasons such as avoiding prosecution, gaining information, for a financial gain or can be for no clear motive.

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‘Anyone who does not feel sufficiently strong in memory should not meddle with lying’[1] Has a client ever lied to you? Have you ever lied? Do you believe your lie was justified? How good do you think you are in detecting someone’s lie?  All these questions were considered attendees of the Switalskis Mental Capacity Act 2005 annual review conference  while listening to the speech of Dr Janet Grace. Dr Grace delivered a thought-provoking speech on feigned symptoms in the court.  


Feigning is to pretend to have a particular problem and is different in clinical presentation. It can take place in the form of dementia, brain injury, psychosis, infection, anxiety and depression. Feigning can also be differing in motive for reasons such as avoiding prosecution, gaining information, for a financial gain or can be for no clear motive.


Feigning can be seen in history so far back as King David who ‘acted like a madman’ and pretended to be insane to avoid prosecution. The Shakespeare play Hamlet reflects the idea of feigning being used in order to manipulate other people. In 2020 millionaire Robert Brockman, was charged with hiding about $2 billion in income, and his attorneys had been arguing in court that he had dementia and was incompetent to stand trial. The judge however, ruled him competent and set a trial date. Recently, during the covid pandemic there was a group of people who were repeatedly attended different covid19 testing facilities while not testing positive. This would expose them to infections therefore increasing their actual chance of contracting the disease.  


The DSM-5 model describes malingering as the intentional production of false or grossly exaggerated physical or problems. It is said that the motivation for malingering is external and could be:

  • to avoid military duty or work
  • obtaining financial compensation
  • evading criminal prosecution obtaining drugs

An influential and widely cited survey of 33,531 clinical reports (Mittenberg 2002) demonstrated probable malingering and symptom exaggeration in:

  • 29% of personal injury cases
  • 30% of disability cases
  • 19% of criminal cases
  • 8% of medical cases

Where mild head injuries were reported, whatever the type of case, probable malingering was detected in 39%. This same work noted some variance depending on the referral source and the nature of the case. In civil cases higher rates of probable malingering were reported in cases referred by defence lawyers and insurers. Whereas in criminal cases higher rates were reported in cases referred by prosecutors. Mittenberg et al note that this might be due to a selection bias influencing which cases are referred for such assessment, whereas Boone et al (2002) estimated a 45% malingering rate in referrals from legal practices specialising in medical compensation. Exaggeration of symptoms in social security disability examinations in the USA has been estimated to occur in 45.8–59.7% of cases, and one study (Chafetz 2013) calculated costs due to malingering mental health claimants alone to have been $20.02 billion for 2011.

While the motivation for malingering is external, not all motivation is intentional. Factitious disorder can be seen as the falsification of signs and symptoms, the presentation as ill or impaired, and the absence of external rewards. This is not better explained by another mental illness. 

Malingering can also occur in people with genuine symptoms. Symptoms are greyscale and can be exaggerated a bit or can feign everything. An example if this is when P is presenting with after a traumatic brain injury (TBI). It needs to be considered whether the symptoms are organic deficits, affective deficits, functional deficits or there are no deficits.

The question may arise on how it is known that P is malingering. It is important for psychologists to be aware that malingering is a problem. Psychologists will consider the phenomenology and presentation of P and will look for patterns in cognition. Recognising a pattern may sometimes be difficult if there is no previous research on the presented symptoms. Effort tests are also used by psychologists, these are designed to be sufficiently simple although the testee should be unaware of this that very high scores should be attained even in the presence of significant psychiatric or neuropsychological disorders. The expert should also consider the timeline of events. An example of this could be is P has a brain injury it is assumed in most cases that even if it starts bad it would start to get better with time.

Capacity and COP

It is difficult to ‘prove’ malingering, and there are many factors that could have an impact on performance. There is no smoking gun besides confession or surveillance.

Dr Grace spoke about a patient she assessed. P suffered form a moderate to severe TBI. Personal injury litigation was ongoing. The Court of Protection asked Dr Grace for an assessment of capacity about care, residence, treatment and money. Within P’s early presentation the treating neuropsychologist did raise the possibility of faking bad prior to discharge. P went back to college, 18 months post injury P scored a below change fail on effort tests. There was evidence of deterioration on sequential tests i.e. the reverse of normal patterns. P was unable to remember the alphabet or how to tie shoelaces. In the assessment of Dr Grace, P had a complete loss of autobiographical memory other than ‘I was exceptional at school.’ P also had very patchy function she was able to tell Dr Grace everything a peer has said but could not remember seeing Dr Grace previously. Dr Grace highlighted how she considered this malingering as among other factors brain injuries can cause a loss in recent memories, but it is unusual to forget long term learned memories. In this case, the court decided that P was not malingering. It is important to remember that if someone does not agree with you it does not mean you are lying or malingering.

Factitious disorder

Factitious disorder can be seen with feigned symptoms with no clear external motive. No one knows how common this is as patients can go to multiple hospitals under different names. experts have noted that the strongest correlation is with childhood trauma or a parent with a factitious disorder. There are a number of indicating factors that someone is presenting with factitious disorder, some of which include;

  • the signs and symptoms do not improve with treatment
  • the magnitude of the symptoms consistently exceeds what is usual for the disease
  • some findings are determined to have been self-induced or worsened

Factitious disorder is not a benign disease and is associated with morbidity and mortality. Patients are known to cause potentially lethal self-injury and undergo risky procedures. Additionally, the cost to the healthcare system is substantial.

What has this got to do with Court of Protection?

This can become a particular issue if experts are asked to complete capacity assessments when P is feigning impairment. It is especially difficult in factitious disorder where a person is faking bad on a mental disorder. The expert would consider if they were known for faking bad. The expert would not know what P understands, retains and uses and will consider what motivation P has for care, support and attention a sufficient reason for them to get benefit from being in the Court of Protection. At this point, interference with the Mental Health Act 1983 is unexplored. There is currently a gap in how the Court of Protection would deal with someone presenting with factitious disorder.


Feigning symptoms are common across medical and legal practice. They compromise of malingering, external motive and factitious disorder, where there is no obvious external motive. The presence of feigned symptoms does not exclude real difficulties. Recognition of these symptoms takes awareness, skill and experience. Factitious disorder is challenging. It is a mental disorder which is managed by discharge. After considering the above, how good do you think you are at detecting someone’s lie?

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Aqsa has worked in the legal sector for one year. She is a Paralegal in our Court of Protection Health and Welfare department.


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