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Chapter 56

Medico-legal aspects of epilepsy

JOHN S. DUNCAN

UCL Institute of Neurology, National Hospital for Neurology and Neurosurgery, Queen
Square, London

Role as an expert

Criminal cases
A common question is whether an alleged crime has been committed when the accused has
been having an epileptic seizure, or is confused following a seizure, and unaware of their
actions (refer to Chapter 55 for details).

Less commonly, in an alleged murder, it may be argued by the defence that the deceased died
as a result of a seizure, and not as a direct result of the assault. In such cases it is necessary
to determine whether there was any prior history to suggest epilepsy and to consider the risk
of death as a result.

Note that in criminal cases there is a higher burden of proof than in civil cases. The case must
be established ‘beyond reasonable doubt’. In civil cases, the case must be established ‘on the
balance of probabilities’.

The main factors to consider in such a case are:
 Is there an established, prior diagnosis of epilepsy?
 Is the alleged crime compatible with a seizure or automatisms or post-ictal confusion, in

terms of nature and complexity of actions, and duration?
 Is a claim of amnesia commensurate with that individual’s seizures?
 Was there evidence of motive?
 Was there evidence of premeditation?
 Was there evidence of attempts to escape, or concealment after the event?
 Do investigations suggest a diagnosis of epilepsy?

Civil cases

Child protection. Cases are often brought by Social Services, or in matrimonial disputes
regarding child protection. The issue here is generally whether the epilepsy of one or both
parents affects or prevents them from providing safe and effective child care.

If a child has developed epilepsy, it may be alleged that this is the result of non-accidental
injury, and that the parents are unable to care for the child.

Personal injury. If epilepsy develops, it may be questioned whether a prior insult, such as
head injury, difficult birth, or medical accident, was the cause of the epilepsy, or whether this
was coincidental. In such cases, the veracity of the diagnosis of epilepsy may be questioned
and this may be difficult to resolve.

If liability has been admitted, the issues of the effect of the epilepsy on ability to live
independently and to earn, and on life expectancy, will need consideration when determining