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Copyright 2003, 2004 Marc D. Feldman, M.D. All rights reserved.
May not be copied or disseminated without authors' written permission.
From the book, "PLAYING SICK" in press (Brunner Routledge).

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Dr. Marc D. Feldman

CHAPTER 14 CONSCIENCE, ETHICS, AND THE LAW IN MUNCHAUSEN SYNDROME, MALINGERING, AND OTHER FORMS OF MEDICAL DECEPTION

By: Dr. Marc D. Feldman
4116 River View Cove, Birmingham, AL 35243
Tel: 205-975-8093
Fax: 205-975-7582
Email: Email Dr. Feldman
Website: www.drmarcfeldman.com

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Challenging legal and ethical questions swirl around factitious disorder, Munchausen syndrome, and/or malingering, muddying the already darkened waters through which health care professionals must tread. As cases in this book have illustrated, bold moves that in some instances were ethically and legally questionable have been taken by medical personnel. They felt that they had no other alternatives if they were going to detect, diagnose, and/or treat factitious disorder, Munchausen syndrome, and/or malingering patients. But such actions are dicey at best, because they simultaneously expose doctors, other caregivers, and the health care facilities at which they practice to various risks. Salient among them are accusations of misconduct because of deviations from standards of care at the local, state, and/or national level.

Malpractice
Accusations can lead to the foremost legal consideration for doctors who encounter factitious disorder, Munchausen syndrome, and/or malingering patients: the danger of being sued for malpractice. Doctors may feel safer in a case that turns out to involve factitious disorder, Munchausen syndrome, and/or malingering than in any other case. They think that consequences befalling a deceptive patient (including permanent disfigurement or even loss of life) are entirely the fault of the deceiver, and that any jury would agree. Most physicians with whom I've discussed the matter view it as inconceivable that they could be sued in a case involving factitious disorder, Munchausen syndrome, and/or malingering. But they're wrong. Factitious disorder, Munchausen syndrome, and/or malingering patients can and sometimes do bring malpractice suits against doctors and others, no matter how unfair it seems. The following case report was adapted with permission from the American Journal of Ophthalmology.

Millie
I was an expert witness in a civil lawsuit involving a woman I'll call Millie. Millie had severe facial rawness and scabbing she attributed to an allergic reaction to a chemical agent used by police during an altercation. Redness, bleeding, and scabs were evident over her entire face, though the areas around her eyes were neatly spared. This sparing was odd because Millie claimed that the chemicals hit her eyes first. Over the next several years, Millie was treated continuously for facial rawness and infections. The infections failed to respond to multiple antibiotic trials, resulting in repeated hospitalizations. Partial facial healing in the hospital was followed by deterioration in unsupervised settings.

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No satisfactory explanation for Millie's course was offered, despite testing and treatment by a large number of generalists, specialists, and subspecialists. At various times, unexplained abrasions appeared on Millie's face, and she was observed to remove dressings, touch her wounds with dirty hands, and scrub her face excessively while denying she had done so. She responded with outrage whenever it was suggested that she might be contributing to her own injuries. In the meantime, she filed suit on the basis of the incidental chemical exposure, having been urged by relatives to "seek justice." In reality, she pursued the litigation as a "cover" for facial problems stemming from factitious disorder, Munchausen syndrome, and/or malingering. She delighted in wearing her mummy-like facial bandages at the supermarket and mall, knowing that all eyes would focus on her.

Millie eventually went much further. She showed up in an emergency department with a circular wound above the left eyebrow. She admitted that she had drilled into her own forehead--through the skull and into the brain--with an electric drill, using three different drill bit sizes. She then had sprayed saliva and week-old urine into the wound. She claimed initially to have harmed herself, only this time her goal was to create harsher and more dramatic skin problems. Later, she confessed to having irritated her skin. She said she had picked at scabs and self-induced facial infections with saliva and urine in the past. Once the medical emergency was over, however, she firmly retracted the confessions and continued the behavior. At all times she was fully in touch with reality, even as she made these profoundly self-damaging choices.

Millie filed suit on the basis of the chemical exposure and incompetent medical care, claiming that doctors were responsible for the persistence of her dermatitis and--somehow--the hole in her skull. A review of her medical records disclosed over two decades of continual, persistent, and wide-ranging medical complaints that were rarely validated. However, physicians had commonly complied with Millie's demands for tests and invasive medical interventions because of the intensity of her complaints and the fact that she withheld information about medications already prescribed. The patient eventually died from the 21 medications she had been prescribed by various doctors; she did not overdose on any, but simply took all 21 as prescribed, leading to organ damage culminating in death. The lawsuit, carried forward by her estate despite the clear-cut evidence of simulation, was finally dismissed--four full years after it was filed.

Only very infrequently are judgments rendered against the physicians or other defendants who were involved in factitious disorder, Munchausen syndrome, and/or malingering and Munchausen syndrome cases. But, to some degree, whether damages are awarded in the end is the least of the issues involved in a malpractice case. Of greater importance is what the lawsuit does to the defendants and their families as it drags on for months or even years, as such cases often do. Even though such legal efforts usually prove unsuccessful, they can be lengthy and very frightening experiences for the health care professionals who stand accused.

Harvard's Dr. Don Lipsitt wrote about one situation in which a young woman who feigned cancer later sued 35 physicians collectively for $14 million because they had failed to recognize and treat her for factitious disorder, Munchausen syndrome, and/or malingering, instead treating her for a disease she never had. Rather than face a battle, the insurance companies settled out of court for more than a quarter of a million dollars. This case underscores the message that health care professionals must recognize factitious disorder, Munchausen syndrome, and/or malingerings as early as possible.

Vicki
I served as an expert witness in another case, this time involving "Vicki," a nurse's aide. Vicki was suing an insurance company that had stopped paying her medical expenses because it was concerned that she was not complying with treatment. They retained me to see if her noncompliance went further--into the realm of Munchausen syndrome.

The records I was to review arrived in two mammoth footlockers. Though it took over a month to read them page by page, this assiduous review showed a stunning pattern not only of noncompliance but of willful self-infection and interference with wound healing. What had begun as an incidental injury to her thumb on a door jam had progressed over a period of eight years to swelling of the hand, the opening up of weeping lesions on her hand and wrist, and redness and raw areas over her forearm. Doctors often swabbed the wounds to try to see what bacteria were causing the obvious, unremitting infections, and typically fecal bacteria grew out on culture. The records, which Vicki was forced to provide because she had filed suit, also showed pathological lying to health care professionals and others; massive doctor-shopping in states all over the country that was unknown to most physicians; and--most troublesome to me as a physician--a readiness on the part of most doctors to accept any claim Vicki made, perform any test she desired, and write out any prescription she sought. Eventually, her hand and arm were so deeply infected that she underwent an amputation below the elbow--an outcome she had predicted years earlier and then ensured came true. When even the infection-free stump mysteriously failed to heal, a revision to the amputation--this one raising the amputation level to above the elbow--was performed. Not surprisingly, that stump was now showing signs of breakdown of the healing process.

Nurses documented then, as they had in the past, that her bandages were routinely askew, as if she had removed them to gain access to the raw tissue. All along, both doctors and nurses had noted torn sutures, scratches to the wounds, opening up of wounds, and other evidence that Vicki was creating and then exacerbating her ailments. Several doctors documented the possibility of Munchausen syndrome, but the few bold enough to question her blithely accepted her denials--even when they detected flagrant lies about her personal history. Some had even observed an indention circling her upper arm that was, at least in retrospect, evidence of Vicki's having applied a tight tourniquet at times to cause her lower arm and hand to swell. I ascertained that the original injury, had it been left to heal, would have resolved in perhaps a week.

Later, I underwent a lengthy deposition with Vicki's attorney. He was attempting to impugn each of my findings, but suddenly ended the deposition. Off the record, he told me that my report was overwhelming and he now accepted that Vicki had Munchausen syndrome. He said he intended to end the action against the insurance company. However, he added (to my chagrin, as a colleague) that he was now going to turn his attention to the physicians who performed the amputation and its subsequent revision, and encourage Vicki to sue them for malpractice for performing unnecessary surgery.

Fraud
Another critical legal dilemma involves satisfaction of debts incurred by these patients. This conundrum has hospitals and health care professionals grappling with the question of whether factitious disorder, Munchausen syndrome, and/or malingering patients are guilty of criminal fraud. Many factitious disorder, Munchausen syndrome, and/or malingering patients rely on private insurance carriers, the Veterans' Administration, Medicare, Medicaid, or other payers to absorb their medical costs. Others, who have no funds and no medical insurance, simply don't pay their bills. Some doctors believe that all factitious disorder, Munchausen syndrome, and/or malingering patients should pay for their medical care with their own resources; otherwise, they say, they are guilty of fraud. In some states this thinking is supported by the law. In North Carolina and Arizona, for example, it's a crime to seek medical care under fraudulent circumstances. I am aware of only one case involving actual criminal prosecution, however.

Ashley
Ashley, a 31-year-old woman, was indicted in Arizona on three counts of fraud. She was charged with having knowingly obtained uncompensated health care under false pretenses. Review of her background showed that, a year earlier, she had been attending high school while claiming to be of high-school age. School officials eventually discovered the ruse and removed her, but she was not charged with any offense.

The actual indictment involved allegations that, for two years, Ashley had presented a contrived history to numerous medical, psychiatric, and dental practitioners and facilities to obtain unwarranted or misdirected care. She had repeatedly impersonated an insurance company representative promising reimbursement to the health care providers, but payment was never forthcoming. Eventually, the misrepresentation became evident and she was reported to the county attorney.

An independent psychological examination was ordered by the court. The consultant identified Ashley's fraudulent behavior as compulsive; however, the prosecution's psychiatric expert indicated that he would testify that the factitious behavior was carefully planned and in no way "irresistible," as the word "compulsive" implies.

Before trial, Ashley pled "no contest" to two counts of Fraudulent Scheme and Artifice, a felony. She was sentenced to seven years of probation, and also ordered to perform 1,000 hours of community service and undergo mental health treatment (paying as she went). Finally, she was ordered to pay restitution of more than $100,000--but at a rate that will require 178 years to complete!

Commitment and Competence
Another important legal issue for psychiatrists is whether factitious disorder, Munchausen syndrome, and/or malingering patients can be committed for involuntary psychiatric hospitalization. In medicine in general, the only time that we can force people to make themselves available for treatment is through commitment, a serious matter involving adjudication through probate courts.

Commitment does not mean that we can force treatment, only that the patient will be available for it. An individual can be committed and refuse medications, individual psychotherapy, group therapy, and all other treatments. Unless exceptional circumstances exist, we have to respect their refusal. If we feel that a person doesn't have the intellectual capacity to make the decision to refuse treatment (or accept it, for that matter), this situation would convert into a question of competency to make medical decisions. This question must also be decided by a judge.

In Chapter 2, I described my frantic chase after a woman who had bolted from the emergency room. Her life was in jeopardy, a fact she was refusing to acknowledge. Just as I had to recognize my legal limits, clinicians often find themselves in the frustrating position of believing they have the ability to help, but knowing their hands are legally tied. These restrictions are essentially the same in all states, though the specific laws and thresholds for commitment vary. Health care professionals, including physicians, have to recognize the limits of their authority. People have the right in our society to make unfortunate decisions about their lives.

In most states the only criteria for commitment are, first, acute mental illness and, second, imminent suicidal risk, overt danger to others, or the incapacity to care for one's basic needs, such as food, shelter and clothing. Factitious disorder, Munchausen syndrome, and/or malingerings do not fulfill those secondary requirements. Not surprisingly, then, there are very few cases in the United States in which a patient has been committed solely on the basis of factitious disorder, Munchausen syndrome, and/or malingering. In one instance, a patient had come to a hospital with factitious hematuria after she catheterized herself and injected herself with her own blood to simulate bloody urine. Although her behavior wasn't suicidal, a judge found that she was nevertheless placing herself in serious medical danger that might well result in her death at some point, and he bent the requirements a bit and committed her for psychiatric treatment. Unfortunately, she was released only one week later by a psychiatrist who said that he viewed all Munchausen patients as untreatable. It requires a leap for judges and lawyers, and for doctors such as this one, even to view factitious disorder, Munchausen syndrome, and/or malingering as a mental illness. In cases of commitment, they're usually considering disorders such as schizophrenia with violence or intense suicidal depression.

In a case in Oregon, the judge developed a creative alternative to commitment. He set up a medical conservatorship in which one person was appointed to make all medical decisions on behalf of the patient. This approach is eminently reasonable and other states might consider amending their laws slightly to permit such actions in cases involving factitious disorder, Munchausen syndrome, and/or malingering patients.

Secret Searches
Other legal questions that involve individual rights have resulted from secret surveillance and surreptitious searches of patients' property and rooms. Sometimes these searches, whether conducted on an inpatient or outpatient basis, have yielded evidence used to confirm factitious illnesses. Such actions were seldom questioned in the not-too-distant past, but today they are considered blatant invasions of privacy unless the patient has agreed to them or there is serious suspicion of Munchausen by proxy abuse (see Chapters 10 and 11). Over the last three decades, the medical community's concept of patients has changed. Thirty years ago, when a person was hospitalized, the staff took away all his or her clothes, including shoes. The patient had no rights and was treated like a two-year-old; frequently the staff and many doctors even spoke to patients in a kind of baby talk. They told patients what to do, how to do it, when to do it, and where, and patients were allowed to keep few, if any, of their personal possessions.

The issue of privacy arose in a case in which a woman was suspected of inducing vomiting to cause an electrolyte imbalance. Doctors secretly performed tests (not explaining what they were really for) to monitor serum and urinary electrolytes, which are among the most important fluid components in the body. They were able to determine that the electrolyte loss was occurring through vomiting. Was it ethical for doctors to perform that kind of diagnostic study without telling the patient what they were doing and why? The matter can be debated, but currently most legal and medical professionals would answer "no."

Informed Consent
Another dubious practice regarding the management of factitious disorder, Munchausen syndrome, and/or malingering cases is the medication-assisted interview. This technique involves interviewing patients while they are under the influence of so-called disinhibiting medications. Such medications, administered intravenously, deeply relax patients and make it more likely that, under questioning, they will admit to their ruses. It is unlawful to administer a chemical without informed consent, and the technique would obviously be refused by factitious disorder, Munchausen syndrome, and/or malingering patients notified that it is being performed only for the purpose of trying to extract the truth. Regardless, often the methods are ineffective; a patient who is highly motivated to maintain a deception can resist the effects of such a drug, so such interventions don't really force truthfulness.

Some doctors have argued that there is a therapeutic privilege that allows them to forego the conventional process of getting informed consent before administering such substances, but I don't agree. Even procedures of low risk are not entirely without risk. Imagine the scenario of a doctor's administering a drug without informed consent and the patient's having a life-threatening reaction. Civilly, it would be considered malpractice; criminally, it would constitute assault and battery. Doctors cannot practice with that kind of disregard for potential liability and individual rights.

Other doctors say that diagnostic maneuvers such as room searches might be legally and ethically justifiable if a patient's life has been endangered by a factitious illness. If a true medical emergency exists, such thinking has some foundation. If the danger is not of life-threatening proportions at that moment, however, it probably does not. Unless the patient is informed and accepts the possibility of room searches as a precondition to admission-which has indeed become a common pre-admission requirement--the days of such actions are long gone. When a man or woman enters a hospital today, even a psychiatric hospital, he or she does not give up any civil rights. Hospitals are even required to post a patient's bill of rights on every unit. Also, informed consent technically should be obtained for every procedure and medication of at least moderate risk. There is no blanket form that allows doctors to do to the patient whatever they deem necessary, without regard to the patient's rights or preferences in that situation.

Acceptable Options
Doctors still do have some options for catching disease forgers, and one is to incorporate the informed consent process into testing. For instance, a doctor who suspects a patient of feigning an illness can sit with him or her and explain, "I don't know what's going on with you yet, but one of the possibilities is that you are producing this disease yourself. Because I'm considering this among the diagnoses, I need to do a series of tests that will rule out that option as well as other possible diagnoses. I'm telling you beforehand to ask your permission to go ahead with the diagnostic workup." This statement is very hard for doctors because it immediately strains the doctor/patient relationship. If the patient does have a factitious disorder, Munchausen syndrome, and/or malingering, he or she may find an excuse to check out of the hospital and slip off to another hospital to perpetuate the same behavior. But the direct approach could make a big difference in helping to identify selected cases of factitious disorder, Munchausen syndrome, and/or malingering and perhaps result in proper treatment for some patients.

As I pointed out earlier, using video cameras as watchful eyes can be very helpful in diagnosing Munchausen by proxy (MBP). Videotaped documentation of abuse should be made part of the child's permanent medical record for review by protective services personnel, the lawyers on both sides, and the courts. The mother's attorney will inevitably insist that the monitoring was an invasion of privacy resulting in illegally obtained evidence, but such challenges routinely fail due to Federal law and legal precedents. Still, to be safe, as soon as doctors become suspicious, they should contact the hospital's attorney and administrator. They should also consult the hospital's risk management office on any proposed detective work. The arguments in favor of video surveillance should be enumerated: it can save a child's life and provide dramatic proof of abuse; it can be shown in court; it can help exonerate an innocent mother who is under suspicion; and, unlike a hotel, there is no reasonable expectation of privacy in a hospital room. (Of course, mothers suspicious of surveillance can avoid abusive behavior during the observation period and try to claim that the problem-free parenting on the tape disproves all allegations.) If the worrisome behavior is occurring outside a hospital, a doctor should contact his or her attorney or a legal advisor with the American Psychiatric Association or American Medical Association.

In cases of possible MBP, doctors in the United States must, by law, share their suspicions with the proper authorities. (This requirement is absent in many other countries in the world, including England). With reporting comes immunity from any type of prosecution or lawsuits for defamation, as long as the report was not filed with conscious malicious intent to injure a person. In contrast, failure to report is a misdemeanor punishable by incarceration and/or a fine.

Doctors who recognize factitious disorder, Munchausen syndrome, and/or malingering in any patient find themselves in an ethical quandary that pits their desire and commitment to heal against the often-aversive nature of these patients. The actions physicians must take are largely determined by the laws and standard professional practices. A physician can't unilaterally terminate active care, for instance, suddenly saying, "I think you're faking and I'm not going to see you or treat you from this moment on." A physician must in some way provide warning to a patient that, on a certain date, he or she will no longer offer care. There also has to be some reasonable hope that the patient can obtain other medical care to the extent that it is needed, and the physician may be required to assist in getting the patient that care.

Sharing the Secret: Telling Others about the Deception
Legally and ethically, physicians must respect the confidentiality of the patient and abide by a host of other professional requirements. But if a patient is not playing by the tacit rules of the doctor-patient relationship, does the physician have to play by them? Except under certain conditions, he or she does.

Those conditions are of paramount importance to medical staff members who, almost certainly against the patient's wishes, want to disclose the diagnosis of factitious disorder, Munchausen syndrome, and/or malingering to others--to help end the medical merry-go-round, for instance. According to The Clinical Handbook of Psychiatry and the Law, authored by legal and psychiatric expert Thomas Gutheil, disclosing information without a patient's consent may be legally justified, or even necessary, in a number of circumstances, including:

  1. Responding to emergencies. When a patient is in a state of emergency, physically or psychiatrically, a doctor or therapist, acting in the person's best interests, may deem it necessary to disclose appropriate information about a patient. For example, if a patient is in a hospital emergency room and refuses to volunteer information, any clinician the patient happens to mention who is contacted by hospital personnel may feel obliged to reveal information. He or she can do so without the patient's explicit consent, and discuss the diagnosis of factitious disorder, Munchausen syndrome, and/or malingering and other vital matters, such as medications prescribed or illicit drug use.
  2. Responding to incompetence. If a clinician believes that a patient is not legally competent to give or withhold consent, he or she should consult an appropriate guardian or relative. This situation arose in the case of Millie, who became incoherent weeks before her death, probably as a result of the self-injury to her brain and the medications prescribed. In the absence of such a person, the clinician can release information that will serve the patient's best interests. A formal adjudication of incompetence and appointment of a guardian may need to be pursued if the incompetence is expected to persist.
  3. Acting to hospitalize or commit a patient. When information (such as overt suicidal or homicidal behavior) is needed to involuntarily hospitalize or commit a person, such disclosure is permitted in most states. There are restrictions, however, in some parts of the country that should be explored with local authorities.
  4. Acting to protect third parties. The Clinical Handbook of Psychiatry and the Law notes that, in the past, psychiatrists' obligations to protect others from patients' violent acts were limited to hospitalizing such patients, and then ensuring that they did not escape and were not prematurely released--duties that did not require breach of confidentiality. A 1976 decision by the California Supreme Court, however, recognized the duty of all mental health professionals to "take whatever steps are reasonably necessary" to protect their patients' potential victims. In the decision, the court recognized that warnings might have to be issued to the victim and/or the police. Most states have rendered similar decisions and/or issued statutes governing such situations. Such concerns rarely arise in factitious disorder, Munchausen syndrome, and/or malingering cases, though they can be paramount in those involving MBP.
  5. Acting in conformance with reporting requirements. Mental health and other professionals, physicians, and sometimes nurses, educators, and others are required by law to report situations such as MBP abuse. Though the precise wording of the statutes varies from state to state, all 50 states do mandate the report of suspected child abuse. It is crucial for health care professionals to be aware of local statutes and laws pertaining to these issues.
  6. Consulting with supervisors and collaborators. According to the Handbook, it is not considered a breach of confidentiality to disclose information to professionals who are assisting a primary caregiver in a patient's care. These professionals may include supervisors, members of a hospital's nursing staff, and colleagues. Once taken into a primary physician's confidence, however, they are obliged to maintain the same confidentiality as the primary caregiver. Thus, a clinician inexperienced in factitious disorder, Munchausen syndrome, and/or malingering can feel free to consult with an expert colleague about matters such as diagnosis and treatment, though the expert must not share any patient-specific information with others.

The Risks of Disclosure
These legal requirements and restrictions are clear, but they are becoming even more stringent in some cases. New federal privacy regulations governing health care records make outside records very difficult to access without full patient consent. Also, the regulations allow patients to request alterations to their medical records, and the effect in cases of medical deception remains to be seen.

What about matters of conscience in cases of factitious disorder, Munchausen syndrome, and/or malingering? Can doctors who are genuinely worried about the factitious behavior of a patient warn each other, hospitals, or insurance carriers simply because they are desperate to help their patients preserve their health? They should be prepared for a range of unpleasant consequences if they do. A lawsuit for breach of confidentiality is an almost inevitable outcome. But less predictable outcomes can befall the reporting professional as well. For example, one doctor tried to alert his colleagues to a woman whom he had seen as a patient and was sure was suffering from a factitious disorder, Munchausen syndrome, and/or malingering. Feeling concerned about her well-being and also feeling obligated to warn his fellow physicians, he contacted a number of doctors whom he had learned were seeing this patient. He was offhandedly dismissed by every one of them. He was shocked by how willing his colleagues were to disbelieve him and accept the compelling tales of his former patient. Yet another risk arose in the case of Joan Nelson from England (Chapter 8); there, an ill-conceived diagnosis of Munchausen syndrome shared with fellow professionals can wind up being physically and personally devastating.

Many health care professionals have sought to sidestep the legal constraints and enhance reporting by arguing in favor of a national registry of factitious disorder, Munchausen syndrome, and/or malingering patients. The rationale is to help monitor and curb the activities of these patients. Although registries exist in some countries, I believe this idea is unacceptable. There are myriad problems with generating a list of these patients and sending it to every hospital, clinic, and doctor's office in the country. A primary concern would be that every person on that list could never become authentically ill because they probably wouldn't receive treatment. As Wendy Scott showed us (Chapter 8), disease portrayals can end at any time. In many cases, once a person's emotional needs are met, the portrayals seem to end and the individual moves ahead with his or her life. Moreover, it's likely that everyone on the list would promptly and permanently be denied health insurance.

Other less formal measures have been suggested to try to track and identify factitious disorder, Munchausen syndrome, and/or malingering patients, including posting their pictures on hospital bulletin boards and circulating flyers about them to emergency rooms. However, access to bulletin boards and flyers is uncontrolled and so these measures would involve breaches of confidentiality. In General Hospital Psychiatry, Dr. Frederic C. Kass postulated that to strike a happy medium, physicians should consider each individual case when deciding whether to identify a factitious disorder, Munchausen syndrome, and/or malingering patient. He recommended taking into consideration such factors as the frequency of the disease portrayals, the jeopardy in which a patient is placed based on the severity of the factitious illness, and the nature of the disease which is being feigned. While I empathize with his well-meaning effort at compromise, it would create a slippery slope in which severity is in the eye of the beholder and patients may be unnecessarily, and illegally, denied treatment or even openly maligned.

Despite these cautions, a number of articles have been written for professional journals with the intention of disclosing the identity of a particular patient. In this way, other professionals would become aware of his or her existence. For example, a dental journal carried an account of a patient with Munchausen syndrome who received treatment from at least 25 dentists in the New York metropolitan area. The characteristics of the patient and the syndrome were described to alert the dental community to this patient, who was believed still to be living in the area. Some older papers written by psychiatrists, especially in Europe, have contained actual patient names. Or they contain accurate initials and so many specific details that it would be easy to identify the particular patient. Physicians have become more and more careful over time about engaging in that sort of disclosure, and professional journals will not accept manuscripts that might lead to identification of specific factitious disorder, Munchausen syndrome, and/or malingering patients.

But physicians are resourceful, and ideas for circumventing confidentiality still emerge. Some physicians suggest that confidentiality is not breached if, for example, they merely drop blatant hints that there is a story behind a patient that can't be told. Some suggest writing a letter to a referring physician about the patient in question, noting, "I have been forbidden to comment on whether or not this patient has factitious disorder, Munchausen syndrome, and/or malingering." However, such techniques merely finesse the ethical and legal issues and do not directly confront them. I believe that such actions are no different from other breaches of confidentiality.

Yet, even more arguments have been offered to support limits on doctor/patient confidentiality when factitious disorder, Munchausen syndrome, and/or malingerings are involved. A person is stealing if he or she goes to a medical office pretending to be ill and uses time and services without paying. However, because he or she presented as a patient, clinicians are under a variety of ethical and legal constraints, not the least of which is confidentiality. If someone walks into a store, however, and takes merchandise without paying for it, there's no expectation that confidentiality will be preserved. Yet both situations are thefts. This argument is compelling, but, once again, the bottom line is one that physicians--so used to calling the shots--find abhorrent: these patients have an unfair advantage over doctors. They don't have to play by the rules of being a patient, but doctors must play by the rules of being a physician. In almost every case, the factitious disorder, Munchausen syndrome, and/or malingering patient can deny the doctor the right to impart any information to anyone about the ruses.

One way to change this situation is for the American Medical Association and/or other professional organizations to take positions on these issues and say publicly, "In terms of our code of ethics, there are certain circumstances in which confidentiality no longer holds. These include situations in which patients have been fraudulent in producing information and/or have surreptitiously produced their own diseases. As a result, it may not be necessary for the physician to maintain the standard level of confidentiality with these patients." Legislators would need to develop similar statutory language, and judges would need to affirm its legality. Historically, however, almost every conceivable issue has taken priority over consideration of factitious disorder, Munchausen syndrome, and/or malingerings (an untenable situation that is the reason for this book). I fear that even the first step--a formal policy statement from an established medical organization to help guide physician conduct--will be a long time in coming.

MBP and the Courts
In an article for Juvenile & Family Court Journal, Beatrice Crofts Yorker and Bernard B. Kahan examined a sampling of MBP cases that made it into the courts in order to highlight the sometimes-arbitrarily different actions taken against accused parents. One of these cases, People of California v. Phillips (1981), has been credited with helping the legal community to recognize MBP as a form of child abuse. In this case, the California Court of Appeals upheld the use of psychiatric expert testimony to describe MBP and to render an opinion on whether the mother in question could be such an offender. The mother, a child abuse agency volunteer who claimed she had never harmed her children, was accused of adding massive amounts of sodium to the formula of her adopted infants. She was found guilty of having murdered one of the children in 1977 and willfully endangering the life of the other at a later time. She served several years in jail and has since been released, now seemingly having turned to false or exaggerated claims and enactments of illness in herself.

Yorker and Kahan contrasted that outcome with one in which a mother was accused of giving her son diuretics. Syringes and vials of a diuretic were uncovered in a search of her home. The judge in that case found that the child needed assistance, but on appeal the boy was returned to his parents under supervised custody despite the dangers. The way in which judges "understand" MBP-even when they're flatly wrong-shape the rulings and the possibility for reunification, even when the danger is palpable. In a third case, one involving laxative administration to an infant by her mother, the court found evidence of a number of warning signs of MBP, including the child's marked improvement in her absence. Significantly, the court noted the reluctance on the part of legal authorities to believe that a parent who seemed to be extremely caring could actually cause her child's illness. Two nurses provided evidence in this case linking the mother to laxatives in the bottled formula. The court found the mother guilty of child abuse, placed the little girl with her father under the supervision of the Department of Social Services, and ordered monthly visits to a pediatrician and a psychiatrist. A six-month court review was also required. This outcome was far safer for the child.

A 1992 judgment in Ohio is worth noting as well. In this case, the Court of Appeals expressed concern about the evidence attributing MBP to the mother. Indeed, while the psychiatric expert had pointed out that the parent's infant daughter had been repeatedly hospitalized for minor medical problems, there was no evidence that the mother had ever induced any medical problems. Instead, the Court viewed her as unreasonably worried about medical issues but not overtly hurtful. The Court did go on to acknowledge that the legal community has at times been an obstacle to the diagnosis of MBP cases because of its skepticism about the entire phenomenon. The Court also discerned two trends in its review of earlier cases. On the one hand, the judicial system has been likely to find that a child was abused whenever a parent has introduced a foreign substance into the child's body to induce symptoms. On the other hand, even in the absence of indications of such overt behavior, courts have frequently terminated parent rights based upon a finding of MBP combined with other factors (such as general parental instability or lack of employment). Courts, like professionals, may not understand that a perpetrator who begins by giving doctors false reports can escalate into the direct induction of illness through means such as suffocation and poisoning.

Concluding Points
Other factors that keep the legal and ethical pot boiling are the subtle differences between malingering, with its criminal overtones, and factitious disorder, Munchausen syndrome, and/or malingering. According to diagnostic criteria, the only way that a physician can distinguish between a factitious disorder, Munchausen syndrome, and/or malingering and malingering is by apparent motive. But can a doctor read the mind of his or her patient to determine whether the patient's primary motive is the sick role itself or some external gain? What about the fact that various motives can co-exist or change over time? These questions are rhetorical because the professional community has no answers, nor has it convened a consensus panel of experts to advise clinicians in daily practice.

Regardless of these hazards and limitations, a well-coordinated, multi-disciplinary approach is always crucial for health care professionals who are trying to treat factitious disorder, Munchausen syndrome, and/or malingering. It is essential whether a parent is harming her child (abuse) or an adult is poisoning himself (mental illness), because once suspicions are voiced, the burden of proof rests with the accusers.

To date, I know of no civil cases instigated against factitious disorder, Munchausen syndrome, and/or malingering patients by family members, friends, professionals, or health care facilities. Lawsuits would be one way to turn the tables on factitious disorder, Munchausen syndrome, and/or malingering patients when they have done damage, financial or emotional; such patients would inevitably argue that they were the helpless victims of a mental disorder. Nevertheless, the odds are good that someday a precedent-setting civil case against a factitious disorder, Munchausen syndrome, and/or malingering patient will be waged and won by a person, organization, or facility that has been deeply affected.

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Dr. Mard D. Feldman is Board-certified in psychiatry and have testified and consulted widely with great success.

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