What Is Our Ethical Duty to Malingerers?: Page 2 of 3

November 10, 2011


According to the American Psychiatric Association’s (APA’s) Diagnostic and Statistical Manual of Mental Disorders (DSM)-IV-TR, PDNOS can be used as a diagnosis when an individual exhibits enough features from more than one of the APA’s 10 recognized personality disorders (Table [click thumbnail for full view]), leading him or her to experience significant distress or impairment in one or more important areas of functioning.2 PDNOS can be diagnosed concomitantly with any of the 10 recognized personality disorders.3 The case patient has PDNOS and every feature of antisocial personality disorder, except that onset in adolescence, noted to be a diagnostic requirement by Sadock and Sadock,4 could not be documented. Despite >45 encounters with the healthcare system over a 7-year period, he has not been relieved of his polysubstance dependency and its emotional consequences, and every effort toward this objective has been ineffective. How do healthcare providers handle such challenging cases and at what point do a healthcare provider’s obligations dissipate?

Ethical discussions in medicine are almost always based on the presumptions that healthcare providers have an obligation to help patients, who for their part are assumed to be both moral and in need. Healthcare providers who question their responsibility to patients risk being viewed in a negative light. While ethical principles in medicine strive to improve patient care and the health of the public by examining and promoting physician professionalism, some of these principles can be impossible to apply when patients are manipulative and do not act in good faith.

Patient Autonomy

The concept of patient autonomy holds that a competent person is at liberty to decide what shall and shall not be done therapeutically.5 The individual may consent to treatment, refuse specific treatments or drugs, and may sign out against medical advice. While a patient has every right to ask his or her healthcare provider for a specific treatment, the healthcare provider is not required to yield to the patient’s requests—or demands—for a “therapy” that is known to be harmful (eg, opioids for a person with opioid-induced mood disorder) or to enroll the patient into a therapeutic program that he or she has no good faith intention of adhering to. Determining that a patient is acting in bad faith is difficult, especially because encounters tend to be handled as isolated, unique events and practitioners may be unfamiliar with a patient’s pattern of behavior. While the patient’s medical record can provide evidence of behavior patterns, it may be difficult to access and impossible to analyze before each new encounter. Even once it is determined that a patient is acting in bad faith, it is unclear if there is any point at which the medical system can be freed from treating him or her; however, at some point, demonstration of bad faith by the patient should liberate the medical system and its individual providers from having to pursue a course of futility.


The concept of beneficence indicates not merely that practitioners should help those with whom they have a professional–patient relationship but, under the related concept of paternalism, may be (at least conditionally) obliged to rescue a patient who is both in diminished capacity and at risk of harm.5 This idea is at least tacitly behind every admission for suicidal ideation. Our case patient’s suicidal ideation, however, was self-reported and ultimately found to be a means for him to manipulate the system. The professional–patient relationship should be a two-way obligation, but the professional–patient obligation always seems to be defined as rights (more recently as “entitlements”) for the patient and as obligations for the professional. Deception and abuse of the professional by the patient seems, for some reason, to be unthinkable to ethicists, and society appears to have no plan of action for those who would abuse healthcare entitlement.


The concept of nonmaleficence is closely entwined with beneficence but serves to give emphasis to the ancient rule “first do no harm.” The rule certainly applies in an active sense; for example, not prescribing opiates to a patient with an opiate-dependent mood disorder. Adherence to this rule can put the practitioner in direct conflict with some patients, such as disingenuous drug-seeking malingerers. Practitioners are also in accord with this rule when they avoid creating risk for a patient through inaction. Therefore, practitioners are ethically obligated to take every threat of suicide seriously, even if it means entertaining every malingerer who utters the word “suicide.”

Social Reciprocity

Social reciprocity means that those who “receive the benefits of society…ought to promote its interests.”5 But what about the situation where social reciprocity breaks down, such as in the case of a patient who is an immoral, dissembling, and intimidating con artist who treats healthcare providers as marks or victims? What are the limits of our ethical responsibility to an abusive, manipulative, malingering patient? There is a need to define a proper balance between societal and professional beneficence and freeloading behavior.

Considerations in Long-Term Care

The case patient was admitted to an SNF for social reasons. Caring for such patients in an OBRA-defined environment is difficult as patient rights and autonomy are major tenets of this overarching law. OBRA, also called the Nursing Home Reform Law, notes that nursing homes are not primarily intended for the care and treatment of individuals with mental illnesses, such as those with personality disorders. OBRA considers an individual to be mentally ill if he or she has a serious mental illness and does not have a primary diagnosis of dementia, including Alzheimer’s disease or a related disorder, or a diagnosis (other than a primary diagnosis) of dementia and a primary diagnosis that is not a serious mental illness.6 Some provisions of this law with respect to the treatment of the mentally ill in LTC facilities include6:

• [With certain exceptions] a nursing facility must not admit any new resident who is mentally ill [as defined in the law], unless the state mental health authority has determined (based on an independent physical and mental evaluation) prior to admission that, because of the physical and mental condition of the individual, he or she requires the level of services provided by a nursing facility, [as opposed to those of an institution for mental diseases providing medical assistance to individuals ≥65 years of age] and, if the individual requires [nursing facility] level of services, whether he or she requires specialized services for mental illness. This can prove to be a nice legal point for LTCs that essentially function as step-down units for acute care in-patient hospitals that include psychiatric units.

• A nursing facility must notify the state mental health authority promptly after a significant change in the physical or mental condition of a resident who is mentally ill.

• To the extent needed to fulfill all plans of care, a nursing facility must provide (or arrange for the provision of) treatment and services required by mentally ill residents not otherwise provided or arranged for (or required to be provided or arranged for) by the state.

• [Each] state must have in effect a preadmission screening program, for making determinations for mentally ill individuals who are admitted to nursing facilities.