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automatism during a fight at a football match, although it may occur, is less likely to persuade
the court than one which occurs during a Sunday stroll.

3. There must be no evidence of premeditation or concealment. An epileptic automatism
must arise de novo from ongoing behaviour. If there is any suggestion that there was
preplanning for the act, then it is not possible to substantiate the diagnosis of automatism.
Concealment is also unlikely after an automatism. On regaining consciousness a patient
emerges from a state of confusion or amnesia and is thus unlikely to register the full meaning
of the events which have occurred. His natural response to such a situation is immediately to
seek help, and not to conceal the evidence of any crime.

4. If a witness is available, they should report a disorder of consciousness at the time of
the act. Unfortunately, witnesses are not always available, but when they are, detailed
questioning about the defendant’s behaviour to establish a disorder of consciousness is
essential. Features to seek are those of automatism: staring eyes, a glassy look, stereotyped
movements, confusion and evidence that the person was out of touch with his surroundings.

5. Because the act occurs during an automatism or post-ictal confusional state, a disorder
of memory is the rule. It is unlikely that an epileptic automatism can occur in the setting of
clear consciousness. Thus, memory for the act should be impaired. It is essential that there is
no loss of memory antedating the event. During a seizure, loss of memory starts with the onset
of the seizure and not before it. Thus any loss of memory which antedates the episode is a point
against it being an epileptic automatism.

6. The diagnosis of automatism is a clinical diagnosis. Although weight will clearly be
given to abnormal investigations, such as a focal lesion on the MRI scan or evidence of
generalised or focal EEG epileptiform discharges, none of these make the diagnosis of epilepsy.
Epilepsy is a clinical diagnosis and any physician who enters court unable to substantiate the
diagnosis on clinical grounds alone is likely to find themselves in trouble3,4.

References

1. FENWICK P (1990) Automatism, medicine and the law. Psychol Med 20 (Suppl. 17), 127.
2. FITZWALTER BUTLER TR (1962) The Criminal Appeal Reports, volume 46, part 1, H.L.1 pp. 78. Sweet and

Maxwell, London.
3. FENWICK P, FENWICK E (1985) Epilepsy and the Law. Royal Society of Medicine International Congress and

Symposium Series, No. 81. Royal Society of Medicine, London.
4. YAFFE G (2013) Neurologic disorder and criminal responsibility. Handb Clin Neurol 118, 345-56.