I belong to a Peer Supervision Group of Neuroscientists.  We meet every three months and usually discuss complex medico-legal matters within the world of neurology, neuro-psychology and neuro-psychiatry.  We have been interested in this question of validation of symptoms and have embarked on a research project which will be published during 2010.


We are trying to determine our colleagues’ attitude towards many issues of symptom validation but in particular the question of elaboration to deceive which many might regard as malingering.


The question we will ask I suspect is whether or not Doctors should be concerned over this phenomenon.  I raised this point in a lecture I recently gave to the Royal Society of Medicine on litigation within neurological practice.


Are we as Doctors societal gate-keepers?  If Doctors are not societal gate-keepers, in terms of identifying those people who are elaborating in order to deceive the system, then why did we as Doctors get involved in rationing care to our patients who just wanted treatment.  There are many examples of this within the field of multiple sclerosis, stroke, Parkinson’s disease, motor neurone disease, Alzheimer’s disease and probably most immune-mediated diseases such as rheumatoid arthritis.  Each of these conditions has had treatments developed over the years that are not cures but help the condition and yet we have not been able to treat our patients with these agents.  We certainly did not march along Downing Street although many Doctors did petition their MPs in order to get these treatments provided which on the whole has largely happened but not totally.


There are many of our patients who do suffer very serious injuries and life-incapacitating symptoms who have great difficulty getting the right compensation that they deserve.  Over the years, I have seen quite severe injuries including severe brain injury not compensated fully by virtue of expert defence practice and expert Barristers.  I can well remember a young woman with a quite severe brain injury settling outside the Court for   a sum that although large for her and her unsophisticated family, was a fraction of what she might have achieved in other circumstances or with a different legal team.  Should we as Doctors care about that apparent miscarriage of justice?  It is easy to raise the question but much more difficult to give an answer.


What I do think is necessary within the legal process is to flag up inconsistency when it occurs.  Be very straight about video surveillance and how an individual looks different perhaps in a video that is objective compared to how they present in the consulting room.  If there is such a difference or a distribution of errors across the whole case as far as consistency is concerned, then there is a differential diagnosis of that situation and within that differential diagnosis is elaboration to deceive.


Our initial analyses of data from our study shows that many colleagues do not think that they should be diagnosing malingering, saying that it should be “diagnosed” by a Judge only and yet is a Judge trained in diagnosis. This suggests perhaps that Courts have the opinion that Doctors should be diagnosing elaboration to deceive or malingering and yet Doctors think it should be the Courts and so do not discuss the issues.  Courts then thinking it should be Doctors making the diagnosis observe the fact that this has not been even discussed and hence the Court will have difficulty in understanding that this is a real phenomenon and that very large sums of money can be achieved through quite malignant behaviour patterns within the legal process.