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Chapter 55
Epilepsy and the law
JOHN S. DUNCAN1 and PETER FENWICK2
1UCL Institute of Neurology, National Hospital for Neurology and Neurosurgery, Queen
Square, London, and 2The Maudsley Hospital, London
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Epilepsy and the criminal law
Everyone who has reached the age of discretion is, unless the contrary is proved, presumed by
law to be sane and to be accountable for his actions. This is the doctrine of mens rea. ‘Actus
non facit reum nisi mens sit rea’ the deed does not make a man guilty unless his mind is
guilty. This is the fundamental basis of English law. For to make a man liable to imprisonment
for an offence that he does not know he is committing, and is unable to prevent, goes against
the spirit of English justice.
Unless the offence is a statutory one which carries an absolute liability (e.g. driving with a
raised blood alcohol level), the doctrine of mens rea, or the presence of a guilty mind, can only
be negated by six major considerations: the person is defending themselves; the person was
under duress; the person was provoked; that the mind is not guilty because it is innocent;
because the mind is diseased; and because at the time of the act there was an absence of mind.
Duress and provocation are not relevant in the context of epilepsy.
The defence of innocence is seldom used and is sometimes applied to mental subnormality, but
is of little relevance to epilepsy. Disease of the mind rests on the McNaghten Rule which arose
as a consequence of the case of Daniel McNaghten who was tried in 1843. The answers of the
judges to the House of Lords following the trial established that for a defence on the grounds
of insanity to be successful it must be clearly proved that at the time of committing the act the
party accused was labouring under such a defect of reason, from disease of the mind, as not to
know the nature and quality of the act he was doing, or, if he did know it, that he did not know
he was doing what was wrong. This defence can only be used by patients with epilepsy who, at
the time they commit an offence, have an associated mental illness. It might thus be used in
persons with epilepsy who have, for example, either a post-ictal or an inter-ictal paranoid
psychosis and who at the time they commit their crime are suffering from an insane delusion.
In these circumstances, epilepsy is very little different from any other functional psychotic
illness and the rules applying to persons with epilepsy are no different from those applying to
the mentally ill population as a whole.
The law relating to epilepsy is, however, distinct when we consider the sixth category of defect
that no mind was present at the time of the act for it can be claimed that during an epileptic
seizure the mind is absent and so any action carried out is automatic. In law, this defence is the
defence of automatism. An act carried out in the absence of mind is known legally as an
automatic act, and the defendant may wish to establish the defence of automatism. The legal
and medical definitions of automatism are quite different. This may be more clearly understood
it if is recognised that the law has to deal with the protection of the public as well as the rights
of the individual, and is not overly concerned with the brain and its mechanisms. Medicine, on
the other hand, is concerned primarily with brain mechanisms, their disorder and cure, and is
not unduly concerned with the rights of society and the protection of one individual from
