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PROBLEMS
AND PROSPECTS FOR FORENSIC ASSESSMENT AND REPORTING FROM THE PCP PERSPECTIVE: A
PRELIMINARY EXAMINATION
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Bill Warren |
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University of Newscastle, Australia
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Abstract
The
legal systems with which psychologists in Australia, the UK and North America
are familiar, and in which they may work as ‘expert witnesses’, that is,
‘common law’ countries, frequently require a ‘diagnosis’ be made and, if
necessary, defended under cross-examination. This last system is the
‘adversarial system’ in which the parties conduct themselves as combatants,
vigorously putting evidence and challenging each other’s claims as if in a
‘battle’. For a psychologist convinced of the merit of Personal Construct
Psychology (PCP), however, there are conscientious and good theoretical
objections to the practices of categorization and classification that underpin
the idea of diagnosis. The notions of ‘disorder’, ‘mental illness’, ’mental
health’, and ‘diagnosis’ also take on a quite a different significance in PCP. This
raises a problem for such a psychologist assisting the court. Given the
significance of diagnosis in the law and the PCP position in relation to it,
this paper considers the broad question of whether and how PCP might assist the
court process. It does this by discussing the legal context in which
psychologists operate when they provide so called ‘expert evidence’. In
addition, a number of other matters are raised to further highlight the
problems and prospects for PCP in this particular area of forensic work: the
‘inquisitorial system’, which is more familiar in Continental Europe (and
elsewhere); a recent notion of ‘therapeutic jurisprudence’; and the problem
raised in forensic assessment as ‘malingering’.
Keywords: expert witness, common
law, personal construct psychology
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DIAGNOSIS, DISORDER, AND MENTAL HEALTH
IN PCP
The notion of diagnosis is a
problematic notion in PCP and this is perhaps the overarching issue for our
topic of the problems and prospects in the particular forensic field that is
our focus here. Kelly (1955/1991, Vol. II, p. 774ff/Vol. II, 153ff) provides a
discussion of diagnosis and he provides “guidance for formulating the client’s
complaint” (Vol. II, p. 962ff/Vol. II, 265ff), and both of these ideas are
given in a context of his significant criticism of the practices of
classification and categorization that underpin diagnosis as in present times,
for example, the DSM-IV and
ICD-10. Equally, two
other relevant concepts, mental illness and mental health also
have a different significance. The expression ‘optimal
psychological functioning’ is preferred to the term ‘mental health’ and this is
understood in terms of the individual constantly engaged in the mental and
behavioural activity of three ‘Cycles’, conscientiously framing hypotheses and,
importantly, testing these in interaction with others and the world (Winter,
1992, Walker, 2002, Walker & Winter, 2005). Briefly, these cycles are as
follows. The Creativity Cycle is a sequence starting with loose
construction in which many possibilities are considered, then progressive
tightening to a construct that can be tested, that is, validated or
invalidated. In persons not functioning optimally, the cycle will not be
completed in that, for example, tightening may not occur and so no validation
or invalidation; thus, there is no change or growth in the way the individual
understands the world. The Experience Cycle is a sequence of: Anticipation
(a prediction is devised); Investment (the individual gets thoroughly involved
in the prediction); Encounter (where the individual is open to the event or
situation in all of the dimensions in terms of which it can be experienced);
Confirmation-Disconfirmation (the initial prediction is validated or is not);
Constructive Revision, in which appropriate revisions are made to the original
prediction. The person who does not function optimally is seen to be blocked at
one or more of the phases of the cycle; for example, she or he might not
tighten to confirm or otherwise their construing, or may refuse to modify in
the face of invalidation. Finally, the C-P-C Cycle describes a narrowing
of attention from the more general to the more focused. Circumspection
sees one attempting to take account of as much of the information in a
situation as possible, remaining open to complexity. Pre-emption is when
a selection from the complex of possibilities is made and a particular element
or aspect that appears to be the most significant for making sense of things is
selected as ‘most likely’ to be true of that situation, event or whatever. Control
sees one make a selection of this last element or aspect, and form a prediction
in terms of a construct pole to be tested in behaviour, and, again, validated
or invalidated.
These
cycles describe a process view of mental illness/health, in contrast to
attempts to state set criteria, such as those offered by Jahoda (1958) who
suggested:
self-awareness and acceptance, growth and self-actualization, integration,
autonomy, perception of reality, environmental mastery. While the process view
is arguably an advance, there is a difficulty in that the process is
content-neutral. Historical figures such as the Nazi leaders, who might be
widely felt were not mentally well may be found to be completing the three
cycles, but with not only morally objectionable constructs being tested, but
socially divisive ones. Elsewhere (Warren, 1996), it has been argued that PCP
has since its origination been premised on the idea of the individual
functioning – that is, going about his or her business of making sense of their
world – in a social world that is democratic,
one in which a more general egalitarianism prevails. These notions require
elaboration, and that was done in the earlier discussion of the apparent
content neutrality of the PCP understanding of mental health/illness in terms
of the ideas of Barbu (1956). Barbu was less concerned with democracy as a set
of external arrangements such as universal suffrage, limited terms of office
for representatives, government of, for and by the people, and the like, and
rather democracy as an outlook of mind, the democratic mentality. He
provided a comprehensive account of this idea, an idea that was, highly
consistent with core features of PCP.
Against this background of how mental health and ‘illness’ is seen in
PCP can be considered what was provided in lieu of classification and
diagnosis. This was a number of ‘diagnostic questions’ and these disclose a
significant difference from the idea of diagnosis as arising from systems such
as the DSM-IV. These see the clinician asking questions like “Exactly
what is peculiar about this client, when does he or she show it, and where does
it get him or her?”; “In addition to the client himself, what is there to work
on in this case?”; “How is the client going to get well?” (Kelly, 1955/1991, Vol
II, p. 779/Vol II, p.156) These questions look to how the client thinks about
the problem and what he or she think they are trying to do in terms of the
symptom they are presenting; what the ‘advantages and disadvantages’ of those
symptoms are for them?
The matter of the client’s difference from others and how the client sees
the problem points to the formulation of the problem, and Kelly, (1955/1991,
Vol II, p. 962/Vol II, p.282) offers some guidelines for doing so. At the simplest level there is uncontrolled elaboration, which sees the therapist simply letting the
client tell it in his or her own terms. A step beyond that is to ‘help them’ in
what he calls controlled elaboration and here the guidelines involve
some suggested specific questions: “Upon what problems do you wish help? When
were these problems first noticed? Under what conditions did these problems
first appear? What corrective measures have been attempted? What changes have
come with treatment or the passing of time? Under what conditions are the
problems most noticeable? Under what conditions are the problems least
noticeable?” Two additional questions are detected by Winter (1992): (i) Have
you known other people with the same complaint? (ii) Tell me a little more
about yourself (for example, what sort of a person are you?)
Kelly’s general discussion raised in an earlier time and form the debate
that is now more directly addressed as that between diagnosis and formulation;
though in Kelly’s use of ‘diagnosis’ the latter was an aspect of the former,
not antagonistic to it. Interestingly,
and perhaps fortunately for present interests, this debate has had a relatively
recent and somewhat vigorous restatement. Pilgrim (2000) argued that
psychiatric diagnosis raised more questions than it did answer, and challenged
that psychologists could or should work with it; as is required, particularly
here, in the forensic context. The outcome of the debate across opinion pieces
and letters to the Editor in The
Psychologist was terminated when the Professional Affairs Board of the
British Psychological Society (BPS), stated that the discourse of the law is
the discourse of diagnosis and of categorization, and if one took objection to
this, then one should not work in forensic contexts (Professional Affairs
Board, BPS, 2000).
More recently, Mellsop and Kumar (2007)
have raised this matter from outside the specific debate and outside PCP,
likening classification and diagnosis as welcomed by the court, to ‘the King’s
new clothes’ in Hans Christian Anderson’s story. They summarize arguments
supporting the need for, and a current process of, rethinking the
classificatory systems such as DSM-IV and ICD-10, and argue
themselves that courts should take little comfort from diagnosis. A turn to
formulation and hence to PCP might appear timely.
LEGAL CONTEXTS
Preliminary: Divisions and sources of law
Law is generally thought of as falling into
two main divisions each of which addresses one of two main types of issue. The civil
jurisdiction is where one citizen takes action against another citizen
for an alleged breach of an agreement or for a wrong committed against him or
her. Breach of contract is a straightforward example, negligence causing harm
or damage to someone to whom a ‘duty of care’ is owed (one’s ‘neighbor’) is
another example, here in the field of tort, or a ‘legal wrong’. The criminal
jurisdiction is where the state (acting on behalf of all citizens of a
society) takes action against a particular citizen for a crime, which is
conduct (an act or the failure to do an act) which is detrimental to the
community, conduct that would, unchecked, lead to the collapse of that
community. Some conduct has both a criminal and a civil aspect; assault, for
example, which will see legal action by the state leading to some sort of
punishment, and possibly civil action wherein a victim seeks an outcome in
terms of monetary damages for injury or loss.
In relation to its sources, law is found
expressed in statutes, enactments, proclamations, and the like; this is so
called ‘black letter law’. In addition, there is the interpretation and
determination in regard to contested interpretations of statute law that is
‘judge made law’; in countries where this is a strong feature of the law this
gives rise to so-called ‘common law’ and hence the expression ‘common law
countries’. There is also a recent trend toward ‘tribunal made law’ wherein
disciplinary tribunals make determinations. Tribunals may be concerned with the
conduct or performance of a particular professional person, such as a
psychologist, and look back to their own determinations as if they were
precedents in the same sense that judge-made law can constitute a precedent. This
is a development that not everyone would see as a good one because of the
possibility that Tribunals may have little legal experience sitting on them and
operate outside the usual safeguards concerning such matters as admissibility
of evidence, natural justice, and procedural fairness.
The psychologist
in the adversarial system
The basic approach of the legal system in
which Australian, UK,
and North American forensic psychologists work is the so-called adversarial
approach. In the adversarial approach, when the psychologist gives testimony to
assist the legal process, he or she is appearing as an ‘expert witness’. Just
what constitutes an ‘expert witness’, and when such are required in a
particular case, is a matter for determination by the Magistrate or Judge. One
is recognized as an expert, not automatically accorded that status. In
the matter of a psychologist being recognized as competent to use the DSM-IV,
for example, it is now well established that a psychologist’s evidence based on
that system is not automatically to be rejected; however, it still remains to
be shown to the court that a particular psychologist has familiarity with that
system. In recent times there have been concerns about expert witnesses
favoring one side in a case, usually the side that pays them (Warren, 2004). This
is both a problem of morality and also an empirical problem in that many
psychologists report feeling pressured to provide reports of a type that
solicitors want, or to change reports that do not ‘suit’. This has given rise
to the expression ‘hired gun’ referring to those whose assessments always favor
one side or the other. It has generated sufficient concern to see various
jurisdictions construct Codes of Conduct that lay down as a basic principle
that the expert witness owes a primary duty to the court. In the UK there was
debate around the value of constructing panels of experts in different fields,
panels from among the membership of which the court could select and commission
an individual to assess a party involved in a dispute.
In the adversarial system the
psychologist’s role in respect of the two divisions of law is as follows. In
the civil jurisdiction, encompassing matters of workplace and motor
vehicle accidents and the like and also professional negligence, specific
questions put by lawyers usually go to three matters. First, whether the
claimant has in fact suffered a ‘psychological injury’, either alone or as a
concomitant of a physical injury, and the extent of any disability or
impairment in functioning. Second, whether the accident or negligence was the
likely cause of that injury. Third, what prospects for ‘cure’ or rehabilitation
there are available for the particular psychological injury sustained? The
first of these matters, the one of most concern to this paper, has come to
involve the assignment of a diagnosis, most often the language of the DSM-IV,
usually, or ICD-10, being used. This assignment of a diagnosis will
often be supported by so-called objective psychometric assessment using one or
other or a combination of formal instruments, particularly when the assessment
is done by a psychologist; as contrast with assessments done by psychiatrists. The
third matter, that is, the possibility for rehabilitation or for restoring the
claimant to their pre-accident or pre-incident functioning, involves an opinion
as to prognosis. It is diagnosis that
concerns us most here, however.
In the case of the criminal jurisdiction,
there are different stages in the process of a case. At the first hearing
questions may arise such as whether the defendant is fit to plead. Or, the
matter of whether a charge ought to be reduced by reason of mental illness may
engage the court. At perhaps the highest level of pleading in a serious matter
is a plea of not guilty by reason of insanity (for example, using the
‘McNaughton Rules’ or similar). Here, diagnostic issues may be central as the
question of whether there is ‘insanity’ as this question will very much look to
diagnostic categories. Given the charge is proven, at the conclusion of that
process, that is, at sentencing, the
psychologist preparing a report has an opportunity to extend beyond diagnosis,
but can be still stuck in it. This may be the case, for example, when he or she
is asked for evidence of recidivism in regard to particular diagnoses, or
prospects of re-offending, or for rehabilitation prospects with particular
diagnoses. There are also matters that belong perhaps to the area of therapeutic
jurisprudence discussed below; such matters as directions by the court at
different stages in the process in terms of diversions of accused persons to
treatment programs under specific legislation enacted for particular crimes.
However, despite differences in what might
be offered by psychologists working from different Schools of thought and
practice, or simple with different ‘mind sets’, in both the civil and criminal
divisions, the advice of the BPS, Professional Affairs Board holds true:
The
discourse of law, and hence of the courts, is generally categorical. In mental
health law and compensation law it is the presence or absence of a ‘mental disorder’
that currently forms the basis of decisions about the application of powers or
judging the severity of an injury (Professional Affairs Board, BPS, 2000).
Thus, on the face of things, particularly
in the civil field, PCP would appear to fall foul of the advice of the Professional
Affairs Board of the BPS. Nonetheless,
an example that follows (Appendix A), where a diagnosis and a formulation of
the same ‘case’ are given, does raise at least the value of the PCP approach
for a deeper understanding of matters.
As to the
criminal jurisdiction, the different phases of the process of charge and trial
are usefully separated. At the first hearing, the charge stage, the question of
fitness to plead may be raised, and also the matter of whether a charge might
be reduced by reason of mental illness. Equally, a defense of ‘not guilty by
reason of insanity’ (the McNaughton Rules or similar) may arise. PCP has no
obvious contribution to this stage given that its analog of ‘unfitness’ and of
‘insanity’ as conventionally and forensically conceived remains still to be
developed (but see later for a consideration of some possible impediments to
such development).
Depending on the pleadings, however, there
are various ways of dealing with a defendant at this stage in terms of the
psychological state of that defendant. For example, diversion to treatment
programs or even to a specialist court as in approaches informed by therapeutic
jurisprudence and like concepts. Here, a deeper understanding of an accused
person’s ‘mental state’ may well come from a PCP assessment; again, see the
example that follows below (Appendix A).
At the hearing, there is no reason in
principle why a formulation rather than a diagnosis would not be equally
helpful, and no reason why a PCP assessment would not do equally as well as
does one based on diagnosis. Finally, at sentencing or the pre-sentencing
stage, an opportunity to extend beyond diagnosis would appear to be very much
available, and PCP arguably particularly well placed to provide deeper
insights. This is so even given that the court system may be particularly
concerned with issues of recidivism or prospects of re-offending, and related
concerns over rehabilitation. Here there is less reliance on diagnostic issues,
possibly because the court is looking for help in disposing of the accused by
imposing a pertinent sentence. Possibly, too, this is because those writing
pre-sentence reports are less drilled in and slavish to diagnostic questions
(e.g. probation and parole Officers). Here there is an opportunity to elaborate
on aspects of a convicted person’s outlook on life that will assist the court
determine the best way to dispose of him or her.
The inquisitorial
system
There is, however, a
second main method of sifting through evidence that is brought to trial and
making a determination: the inquisitorial system. In the inquisitional approach
the court serves as a place less of ‘battle’ than a place where matters can be
illuminated, where the truth (or a truth) can be determined. The aim is to
secure the best understanding of the matter as is possible and there is
considerable scope to use whatever evidence and make whatever enquiry the
Judge(s) feel(s) appropriate.
The inquisitorial system
sees the active involvement of the Judge or Judges, that involvement in the
nature of an investigation or an enquiry from the bench, or orchestrated from
the bench. There is wider scope for expert witnesses to canvass matters they
think important, rather than simply answering questions put to them formally in
the solicitor’s or the advocate’s correspondence to them. Their reports are
more likely to be seen as not favoring one side of a case over another. While
they need not be defended under cross-examination there is sometimes scope for
the parties to request the expert to defend their report. In this last case the
Judge(s) will question the experts and make whatever enquiry of those experts
that is felt to be appropriate.
This system is not
usually familiar in all but general outline to those working in common law
countries and more specific comment in relation to such a system is left to
those more familiar with it. However, one example of the style of this system
in common law countries is the procedure of a Coronial Inquiry. The object of
this Inquiry is to ascertain a cause of death and to point up any matters that
might be followed-up by the police, for example. While there is no accused or
defendant, claimant or respondent, the actual procedure, though, sees the
Coroner actively questioning witnesses and others who may be called on to
assist the Inquiry, and sometimes making public statements about the process,
its progress, and the quality of testimony and the demeanor of witnesses.
Perhaps a second example
is in the proceedings of a disciplinary Tribunal established under legislation
which regulates the practice of professionals such as medical practitioners,
nurses, psychologists and so forth. The object of these proceedings is usually
that of establishing whether unsatisfactory
professional conduct or professional
misconduct has occurred, and in the context of protecting the public from
incompetent or unethical practitioners. The determination of whether particular
conduct falls short of accepted standards can be difficult when there are
different ‘schools’ of practice even within a broader School of psychology or
psychotherapy. In such a case, a Tribunal may well feel it needs to have regard
to the wider context of the practitioner’s behavior and how it measures-up in
terms of the different schools, as well as the broader School. An Australian
example at this level, where the framework was psychoanalysis, is in a 2008
Appeal to the Victorian Civil and Administrative Tribunal (VCAT) against a
decision of the Victorian Medical Board (http://medicalboardvic.org.au/pdf/DrNSWilliams.pdf).
In this case a psychiatrist working in a particular school of psychoanalytic
psychotherapy, saw his conduct discussed in relation to the different expectations and accepted
practices of the different schools (e.g. Kleinian, Lacanian, Relational), as
well as the wider School (Psychoanalysis) under which these sit. The VCAT, that
is, considered it relevant to consider broader rather than narrower matters and
to understand just how a practitioner might be expected to act, and why, when
that practitioner professed allegiance to a particular school, within a broader
School of psychotherapy. (In the event, the expectations of the broader School
were found to have greater significnce.)
Comment here concerning PCP and the
inquisitorial system must remain speculative and deeper consideration left to
those who are more familiar with that system. However, on the face of things
there appears to be greater scope for assisting the court (or Tribunal or Board)
by way of providing that deeper level of understanding that the terms
‘inquisition’ or ‘inquiry’ would seem to imply. Here, it can be suggested that
PCP would be more amenable to the type of approach the court is trying to
establish. Here, a formulation would appear more useful than a diagnosis
if for no other reason than for the greater information available within it and
the individualizing of the understanding of the accused offered by it. The
worth of this assertion can be gauged to some extent by the contrast provided
in the example below (Appendix). Thus far, too, PCP itself would not appear to
be caught up in the problem of different ‘schools’ of thought existing within
PCP. However, the perhaps differential reception of such ideas as the
‘integration’ of PCP with other psychotherapy approaches in the UK and North
American PCP, and the value of a more specific relationship between
constructivism and constructionism may yet yield ‘schisms’, to present a scenario
analogous to that in Psychoanalysis.
Therapeutic
jurisprudence
Therapeutic jurisprudence is a
relatively recent development associated initially with the work of David
Wexler and Bruce Winick (for example, Wexler, 1990; Winick, 2000; Winick and
Wexler, 1991). It focuses on the therapeutic and counter-therapeutic impacts of
law and legal procedures and aims to bring about change in law and procedures
such that therapeutic outcomes are more likely than are outcomes that are
destructive of psychological well-being. Therapeutic jurisprudence tries to
accommodate at least two facts. First, that the procedures of the courts are
stressful in themselves in a way that may not serve the interests of justice or
society. Second, that those procedures do not take account of the sometimes
special circumstances of those caught up in the legal process (King, 2006). Therapeutic
jurisprudence attempts to counter the disadvantage that some bring to the court
process and to treat defendants in a way which recognizes different ways of
dealing with them by reason of their special circumstances or the nature of
their crimes; such as mental illness or addiction or domestic violence. A
‘circle court’ wherein a magistrate from the common law system sits with elders
from an indigenous group to hear a matter and determine an outcome is one
example.
Therapeutic jurisprudence would appear to
be a most interesting development in terms of broadening and deepening
reflection on mental health and illness in the law. Cooke (2006) notes that the
general ‘consumer orientation’ expressed in these developments is bringing new
demands on court administrators whose “process oriented approach … is being
replaced by one which requires sophisticated skills in managing a network of
relationships within and beyond the court itself’ (p. 2). King (2006) also
makes comment on the challenges and the need for education that will allow
those challenges to be met. This new context may well provide an opportunity
for PCP to make a particularly valuable contribution.
Therapeutic jurisprudence has,
however, not developed without controversy and opposing views have emerged in a
debate that law (justice) and therapy (welfare) are
irreconcilable. In practice, law ‘squeezes’ psychology (e.g. the insistence of
a particular discourse), just as psychology uses the law to, for example,
compel treatment (e.g. involuntary hospital admission, community treatment
orders). For the advocate of therapeutic jurisprudence, the law should always
pursue a therapeutic advantage (social or individual). For the critic of
therapeutic jurisprudence, such a course contaminates the idea and the
processes of law.
Given the intentions of this
development, and its origins in mental health law, as well as its
conceptualization by the initiators of it as a school of social enquiry, there
would appear to be significant affinities with PCP. PCP offers a particularly
useful approach to deepening the understanding of defendants facing ‘Circle
Courts’ or other specialist courts, and how best to respond to their crimes. It
offers an equally useful approach to more fully or deeply understanding the
psychological dimensions of accident or injury, a victim’s psychological
status, or just what a perpetrator of a crime was achieving, psychologically, by
their conduct. It would appear to also have a function in assisting a
perpetrator to better understand the psychological impacts of this conduct on
their victim, or someone affected by their behavior. In such a context all
participants may be significantly assisted by a ‘burrowing down’ into a
perpetrator’s construing, and also into a victim’s understandings of what has
happened to them. A domestic violence court may be assisted by trying to grasp
exactly how a violent offender sees the world of marriage and relationships. A
mental health court, perhaps the most difficult and impatient because
ready-made models for understanding are entrenched, may nonetheless find useful
a way of understanding from the individual’s perspective such matters as the so
called ‘revolving door’ phenomenon in psychiatric hospital admissions and court
appearances. If, as Neimeyer and Neimeyer (1993) note “constructivist
assessment techniques … attempt to provide a broader glimpse into [a person’s]
constructions of self and others” (p. 18), then this broader perspective could
be of great value generally to therapeutic jurisprudence.
Malingering
A particular matter that
becomes significant to the court process as far as expert witnesses are
concerned – and more generally -- is that of an accused person or a respondent
intentionally presenting him or her self in a ‘good’ or a ‘bad’ light. This
issue has become a much researched one since the 1980s when approaches to
detection were relatively theoretically unsophisticated and practically
simplistic (Rogers,
1997). There is now a considerable literature addressing both the theoretical
dimension and practical ways of detecting malingering, both within common tests
(like the MMPI-2 and the PAI), and in purpose-built scales (such as the Rogers,
Bagby, and Dickens, 1992, Structured Interview of Reported Symptoms (SIRS)).
The literature on
malingering makes a number of conceptual differentiations. Malingering as a fabrication or gross exaggeration for an external
goal is distinguished from ‘defensiveness’ and ‘factitious disorder’. Defensiveness involves deliberate denial
or minimization of symptoms, and factitious
disorder involves feigning symptoms to present oneself as a patient or
someone in need. Despite much research, however, there is no reliable way of
concluding that a person is malingering. The most unhelpful method is arguably
within the DSM-IV, which offers but four general criteria, one of which
is tautological if one is trying to gauge malingering in a forensic context. That
is, the first criterion is that “medico-legal context of presentation (e.g. the
person is referred by an attorney …)” (p. 701)!
Now, the notion of malingering has a
curious place in a theory that sees each of us as making the best sense of the
world in which we live, and testing and validating that sense with reference to
other people. Interestingly, the DSM-IV, despite its weak guide to
malingering, does note that malingering “may represent adaptive behavior – for
example, feigning illness while a captive of the enemy during wartime” (p.
701). Such a view is quite consistent with a PCP approach in which all and any
behavior will be taken at face value for enquiry as to just what it is meaning
for the individual in the situation in which he or she finds him or her self. Malingering,
defensiveness, the feigning of symptoms to present oneself as a patient as in
so-called factitious disorder, even intentional lying, all present
opportunities to understand just what the individual is trying to achieve in
terms of making sense of their world. That understanding may be of assistance
to a court, and it may be quite cognitively simple; for example, to escape
punishment! However, in the individual case there may be more to learn and what
appears to be malingering, or lying, or defensiveness, or feigning – whether it
is or is not, and however this is determined – may provide a most valuable
entry point into how the offender or the victim sees their world. As Fransella
(2003, p. 127) notes, an exercise (a ‘game’) in which people are asked to write
down lies about themselves may be most informative for what they take to be the
‘truths’ about themselves. .
Another perspective on
the matter of malingering and PCP, somewhat broader but relevant to the present
discussion, was given by Freckelton and Henning (1998) where the case of Farrell v the Queen was discussed. The
detail of the case is of but passing interest but it involved an appeal by an
Anglican priest against a conviction for rape of a man who had a diagnosis of
anti-social personality disorder. Relevant here was the decision of the High
Court of Australia concerning expert evidence, in this case evidence going to
the supposed victim’s mental condition where that condition had a direct
significance for the victim’s credibility: “The Court unanimously held that
expert evidence as to a condition which may affect a witness’ ability to give
reliable evidence is admissible, provided that the expert evidence extends
beyond the experience of ordinary persons” (p. 274); that is, may truly be a
matter where an expert is required, given that the matter of credibility is
primarily one for judge and/or jury to determine. In this case, a psychiatrist
had given evidence in which, among other things, he had expressed the view that
while borderline personality disorder would not have any effect on memory or
what was reported as having happened, an anti-social personality disorder may
have an impact because those suffering this condition “are inherently less
truthful than the average person” (p. 273). Freckelton and Henning express the
view that the impact of this case was “that it was likely to provide an
opportunity for defendants to introduce expert testimony to undermine the
credibility of complainants diagnosed as suffering a psychiatric condition
associated with mendacity” (p. 281). The significance of these last
observations for the issue of malingering in other areas, in particular, in
civil cases, is unclear, but the notion of lying as a feature of a particular
personality or personality disorder or diagnosable condition would not find
ready acceptance in PCP. At one level, as noted, the very idea of a
psychological disorder is questioned. In addition, though, as a lie might be
seen as just another way of elaborating one’s construct system, then PCP
expertise may well be quite helpful in placing an alleged lie in the context of
an individual’s wider and deeper system of construing. There is, however, a
substantial challenge to PCP in indicating how lying might be accommodated within
a ‘disorder of the content or of the structure of construing’ (Winter, 1992),
and how this would translate to the forensic sphere; an exercise beyond present
preliminary concerns.
At best, then, at least
for now, we might say that the notion of malingering and related notions, such
as ‘faking good’, as well as broader ones like ‘inherent untruthfulness’ that
are important in the forensic context, do present interesting challenges for
PCP. Such notions as malingering and lying may be of great interest in a
clinical context, illuminating ‘true’ construing and taking us to core
construing and processes that maintain the integrity of the self. The exercise
described in Fransella’s account points up readiness or resistance to change,
particularly when the question of whether the individual would like others to
believe the lie, is in focus. Yet, maybe these types of matters, too, ought to
be of interest to forensic contexts and expert evidence?
TWO
PARTICULAR MACRO PROBLEMS ON WHICH TO END
Given that this paper is construed as but a
preliminary attempt to raise a discussion, it is important at this point to
raise two possible impediments for PCP making inroads into the field of
forensic assessment and reporting. One is ‘internal’, the other ‘external’. The
external concerns the narrow pragmatism by which courts might prefer to be
guided. The internal concerns the fact that PCP might be taken to apply to a
different scenario; or, as we would say, it has a different focus of
convenience and range of convenience. Let us take these problems in turn.
The courts and the system of criminal and
civil justice are busy places. Magistrates and Judges have very significant
workloads and matters are often best dealt with expeditiously. If someone
appearing before the court can be quickly diagnosed with a mental illness and
appropriately disposed of, then that may be a good thing; at least as far as
the court is concerned and even perhaps as far as the person before it is
concerned. PCP requires a significant shift in mind-set, a relearning of old
ways of understanding people, a jettisoning of familiar notions. As Kelly
(1963) said:
… it is only fair to warn the reader that
he will find missing many of the familiar landmarks of psychology theory. In
this new way of thinking about psychology, there is no learning, no motivation,
no emotion, no cognition, no stimulus, no response,
no ego, no unconscious, no need, no reinforcement,
no drive. It is not only that these terms are abandoned; what is more
important, the concepts themselves evaporate. If the reader starts murmuring
such words to himself, he can be sure he has lost the scent (p. xi)
Given that the shift in thinking
required by PCP is already difficult for psychology as a discipline, how much
more difficult is it likely to be for the law and the courts? Given that that
shift is difficult for psychologists with already significant investment
through study and training in the ‘old ways’ of thinking, how much more
difficult for a court system in which ideas of ‘diagnosis’, of trait theories
of personality, of explanation rather than understanding, and a
discourse involving the terms that Kelly (1963) says have ‘evaporated’? Moreover,
Bannister’s (1977) assertion concerning the absurdity of one ‘being a
psychologist’ has merit – that is, because everyone is a psychologist or acts
as one if the word ‘psychologist’ is properly understood as an enquirer into
the world of meaning – then it is difficult to see how the status of ‘expert
witness’ could ever be claimed by a PCP psychologist! Moreover, if psychology
is an exercise in paradox as Bannister (1966) suggests, then the same question
applies. As he notes, one implication of believing in the concept of the
professional scientific psychologist “is that we have the magnificent arrogance
to set up as experts on people”, moreover, some “may gaze on our fumbling
attempts to sort out our own personal lives and come to a conclusion that as
experts on people we are phonies, bald headed barbers trying to sell hair
restorers” (1966, p. 26).
The second macro problem arises from the
fact that, as Kelly (1955/1991) notes, PCP itself has a range of convenience
and a focus of convenience. Its range of convenience is restricted “as
far as we can see at the moment, to human personality and, more particularly,
to problems of interpersonal relationships” (Vol. I, p.11/Vol. I, p. 9). Its
focus of convenience is the clinical area, this understood as having an
objective not of diagnosis or research but, rather “the anticipation of actual
and possible courses of events in a person’s life” (Vol. I, p. 185/Vol. I, p.
129). More specifically, that focus of convenience is “the area of human
readjustment to stress” the theory was formulated with the problems of
psychotherapy in mind (Vol. I, p. 12/Vol. I, p. 9). Kelly does note that the
range and focus of convenience may be extended – and this does present an
‘authorization’ for those seeking to argue a role for PCP in the forensic area.
On the face of it, however, there is a problem for such an extension into the
court process, if perhaps not so into other areas of forensic psychological
work such as understanding offenders and treatment programs (Horley, 2003).
CONCLUSIONS
There would appear to be so much
variance between what PCP psychologists do and what the courts have come to
require, that at first sight there appears little scope for a genuinely PCP
forensic psychology assessment and report that might assist a court. A ‘hard
line’ position from this perception is that PCP psychologists should not work
in the forensic field.
However, diagnosis is already a subject of debate even outside of a PCP
perspective and the alternative approach of formulation,
despite formulation itself not being a straightforward exercise (for example,
Johnstone and Dallos, 2006), is being championed in that debate. Here, PCP would
appear to be well placed to contribute to the debate. An elaboration of the
person’s outlook that extends the court’s understanding of his or her unique
position vis a vis their complaint or crime appears on the face of it to
be worthy of attention by the court. While it may not replace it, a helpful
formulation might be added to diagnosis, even a DSM-IV diagnosis, and
enlarge the court’s understanding. A PCP perspective on malingering in the forensic context remains to be developed and
invites our attention. Just as formulation appears to enrich diagnosis,
so a PCP understanding of lying generally may prove valuable for the
issue of understanding malingering.
In general, in an adversarial
system PCP would appear to have its most natural home in criminal law and at
the pre-sentence stage. PCP would appear to have some problems in civil cases,
though the case of John (Appendix A) may suggest otherwise if, for example, he
was suing for damages. In an inquisitorial system, PCP would appear to be much
more ‘at home’. Finally, under the concept of therapeutic jurisprudence, PCP
offers a particularly useful approach to deepening the understanding of
defendants facing ‘Circle Courts’ or other specialist courts, and how best to
respond to their crimes.
There remains much to explore in
all of these areas and, hopefully, the forgoing discussion provides an outline
of the territory, an impetus to such exploration, and some optimism for an
ultimate outcome in something useful for at least the forensic assessment and
report writing process.
APPENDIX:
A DIAGNOSIS CONTRAST WITH ONE TYPE OF FORMULATION
A Diagnosis:
John suffers sleep problems
involving disturbing dreams, he has intrusive, troubling daytime thoughts about
the robbery, and he is constantly hyper-vigilant concerning risks of harm in
even his most familiar of environments. He refuses to go into a bank. He
experiences intense psychological reactivity and distress if he sees TV
involving crimes where guns are produced or fired, and he is amnesic to
specific details of the hold-up he experienced. He finds himself unable to
engage with others and says he feels estranged from even his closest
loved-ones. These symptoms have been experienced for over three (3) months, and
they cause him very significant distress as well as periods when he cannot
attend work or engage in social activities. John has PTSD, which is chronic,
and it stems from his experience in the robbery.
A Formulation:
John has a range of symptoms that
are common following a significant trauma. He has found himself unable to
function at his optimal psychological level (relative to his history and
assessed cognitive and emotional capacities), since the robbery. To fully
understand his psychological predicament it is instructive to note a few facts
about his life and how he now feels and sees things.
Having left school before
completing his secondary schooling John has worked in unskilled jobs for some
twenty-five years doing building work that he once enjoyed because it was
active outdoor work which he felt kept him fit and gave him financial security
for doing what he did outside of this line of work. Outside of work John was an
active and highly graded martial arts exponent in three disparate styles, and
conducted martial arts training to the highest level, as well as self-defense
classes four nights a week, in his own successful and well regarded academy, The Advanced Martial Arts and Self-Defense
Academy. He has played grade rugby league and once prided himself on his
stamina and courage, “walking tall and confidently”, as he puts, in all
situations.
On the day of the bank robbery he
was depositing the takings from his Academy when three men entered, shouting
and pointing shortened shotguns at the customers and staff. John was
singled-out as the one they would shoot if the staff did not co-operate and
open the safe. A gun was held at his head and he was ‘frog marched’ to the
Bank’s vault, and locked in it for ten (10) hours after it had been opened, the
money taken, and the locking mechanism damaged so it could not be re-opened
easily.
John talks of the special
responsibility he felt given his martial arts qualifications and experience. He
talks of the resurfacing of an old, childhood fear of enclosed spaces when
brutalized by his father who would lock him under the stairs. He says that he
was very frightened in the robbery, a most unusual feeling for him and
requiring a change in his core sense of himself. The experience went very
significantly to both his sense of himself as a ‘man’ and the significance that
term has had for him, and to a loss of self-esteem because he, of all people,
was totally ineffective in the situation. This sense of being ‘less that the
man he thought he was’ constitutes a significant threat and goes to core
aspects of his sense of self that had revolved almost exclusively around his
image of ‘manliness’ which is at the opposite of where he feels he has now
found himself. All efforts to rationalize in terms of the element of
‘surprise’, of guns being more dangerous than fists or feet, of how a fight was
unnecessary as the money was insured, and so on, fall on deaf ears. John finds
he has no ideas, no concepts, no ‘constructs’ with which to understand his
present situation and he is significantly anxious most of the time. He now sees
life as composed of a very limited range of options for him (is constricted), and
he cannot make choices between different options that he might be encouraged to
recognize or contemplate. He is ‘cognitively simple’ in that he sees no ‘shades
of grey’ in the situation in which he finds himself, and sees himself as an
incompetent coward, and nothing but an incompetent coward (that is, he
construes pre-emptively). All of this contrasts markedly with his pre-incident
functioning.
*
(Note for those not versed in PCP. The
notions of fear, anxiety, threat, core role constructs and the self, pre-emptive construing, cognitive
simplicity-cognitive complexity, all have full and specific meaning within
PCP.)
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ABOUT THE
AUTHOR
Bill Warren
holds an appointment as a Conjoint Associate Professor in the
University of Newcastle, Australia having retired from full-time
academic work teaching Philosophy, in 2006. A member of the Colleges of
Clinial and Forensic Psychology of the Australian Psychological Society
he continues the private clinical practice in which he has been engaged
for some twenty-five years. Email: William.Warren@newcastle.edu.au
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REFERENCE
Warren, B. (2008). Problems and prospects for forensic assessment and reporting from the PCP perspective: A preliminary examination. Personal
Construct Theory & Practice, 5, 99-110.
(Retrieved from http://www.pcp-net.org/journal/pctp08/warren08.html)
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Received: 27 April 2008 – Accepted: 20 October 2008 –
Published: 23 December 2008
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