La preuve juridique à l’épreuve du principe de précaution

Abstract

In expertise context, the psychological or psychiatric assessment occurs in a particular and different way than the usual practice in psychotherapy. In this context, malingering has a specific dimension that we study in this article. As the domain of malingering is very huge, our article focuses on situations of damages compensations. After a definition of malingering, we analyse this behaviour through the study of the victimology process, the circle influence, the existent psychological tests and the expert's role. The victim position in which the injured persons are placed or place their self seems to be a factor involved in their reconstruction process and by this way, in the use of malingering. The family circle has also a strong influence on the management of the traumatic incident and by this way, on the (conscious or unconscious) choice of malingering, particularly for children (by example, in the Munchausen by proxy syndrome). Finally, the role and the attitude of the expert are central in the functioning and the interaction of the two mechanisms (management of the event/reconstruction by the victim and malingering). Although psychological tests can be used in order to discover malingering, a meticulous assessment, empathy, and neutral and benevolent attention are indispensable elements in order to respect the suffering of the person and by this way, assure authentic complaints and thus prevent malingering. © 2011 Elsevier Masson SAS.