Psychiatric Annals

CME Article 

Epilepsy in the Courtroom

Chinmoy Gulrajani, MBBS

Abstract

Epilepsy is a diverse family of disorders with wide variations in clinical presentations depending on seizure type and etiology. When individuals diagnosed with epilepsy commit a violent act, it is commonly unrelated to a seizure (inter-ictal violence). Violence occurring in relation to the seizure episode (peri-ictal violence) is a rare but recognized phenomenon that can lead to criminal charges. In some cases, peri-ictal violence can mimic a planned goal-directed act. In these cases, courts often rely on psychiatric expertise to answer questions about the defendant's competence to proceed, criminal responsibility, or risk of future violence. This article reviews the relevant literature related to violence in epilepsy and provides recommendations to clinicians who provide expert opinion in cases of epileptic seizure related violence. [Psychiatr Ann. 2017;47(12):598–603.]

Abstract

Epilepsy is a diverse family of disorders with wide variations in clinical presentations depending on seizure type and etiology. When individuals diagnosed with epilepsy commit a violent act, it is commonly unrelated to a seizure (inter-ictal violence). Violence occurring in relation to the seizure episode (peri-ictal violence) is a rare but recognized phenomenon that can lead to criminal charges. In some cases, peri-ictal violence can mimic a planned goal-directed act. In these cases, courts often rely on psychiatric expertise to answer questions about the defendant's competence to proceed, criminal responsibility, or risk of future violence. This article reviews the relevant literature related to violence in epilepsy and provides recommendations to clinicians who provide expert opinion in cases of epileptic seizure related violence. [Psychiatr Ann. 2017;47(12):598–603.]

Epilepsy is a disorder of the brain characterized by an enduring predisposition to generate epileptic seizures, and by the neurobiologic, cognitive, psychological, and social consequences of this condition.1 The definition of epilepsy requires the occurrence of at least one epileptic seizure.1 Epilepsy is a diverse illness with wide variations in clinical presentations depending on seizure type and etiology. Therefore, it has traditionally been referred to as a disorder or a family of disorders, rather than a disease, to emphasize that it is comprised of many different diseases and conditions. In 2015, 1.2% of the United States population reported active epilepsy or current epilepsy.2

An epileptic seizure is a transient occurrence of signs and/or symptoms due to abnormal excessive or synchronous neuronal activity in the brain. Clinical presentation of an epileptic seizure can vary widely and can involve a myriad of motor and neurobehavioral symptoms. Hence, accurate classification is paramount in evaluating someone who is presenting with seizures.

Classification of Epilepsy

Traditionally, epileptic seizures were divided into two major classes: partial and generalized depending on whether the seizure originated from a single focus in the cortex or involved both cerebral hemispheres. Partial seizures were then defined by whether a person was aware or conscious during the seizure (simple partial) or not (complex partial). This old classification failed to capture many types of seizures. Some seizure types, for example tonic seizures or epileptic spasms, can have either a focal or generalized onset. Lack of knowledge about the onset makes a seizure unclassifiable and difficult to discuss with the old nomenclature.

To address these deficits, in 2017, the International League Against Epilepsy proposed a new multilevel classification of epilepsy.3 Under the new scheme, the first level of seizures are classified into focal onset, generalized onset, and unknown onset. The second level of Epilepsy Type includes a new category of “Combined Generalized and Focal Epilepsy” in addition to the well-established Generalized Epilepsy and Focal Epilepsies. It also includes an Unknown Category. The third level is an Epilepsy Syndrome diagnosis that refers to a cluster of features incorporating seizure types, electroencephalogram (EEG), and imaging features that tend to occur together.3 This new classificatory system offers a comprehensive novel methodology for clinicians to identify seizure activity from a phenomenological as well as an etiological point of view.

Violence in Epilepsy

Violence committed by individuals diagnosed with epilepsy may be related to an epileptic seizure (peri-ictal violence), or may be unrelated to the seizure (inter-ictal violence). Literature is replete with case reports of violent crimes related to epilepsy. A few notable reports are discussed here.

In 1994, Borum and Appelbaum4 described a case in which an individual committed assault and battery and attempted rape in a boarding house bathroom while experiencing a seizure. Mendez5 reported a case of a rare patient with directed aggression as a postictal phenomenon. In this report, the person did not suffer from amnesia, and reported the crime. Kanemoto et al.6 investigated the incidence of well-directed violent behavior and suicide attempts in patients with temporal lobe epilepsy, with special attention to postictal psychosis. They found that the incidence of well-directed violent behavior against human beings was significantly higher (23%) during postictal psychotic episodes than during acute inter-ictal episodes (5%) and postictal confusion (1%). Suicide attempts were also more frequent during postictal psychosis (7%) than during either acute inter-ictal psychosis (2%) or postictal confusion (0%). They concluded that well-directed violent and self-destructive behavior was not a feature of epileptic psychosis in general but a specific hallmark of postictal psychosis.

A comprehensive review of violence in epilepsy was published by Marsh and Krauss7 in 2000. The authors noted that violent or aggressive behaviors independent of ictal and postictal states are more frequent in patients with epilepsy and are rarely related to epilepsy-specific EEG changes. They found that most frequently, violent behaviors related to the seizure occur during the post-ictal state of a complex partial seizure, which is characterized by confusion, delirium, impaired consciousness, paranoid delusions, and/or visual hallucinations. Aggression in such cases appears orchestrated, but the behavior is poorly directed. Finally, they noted that for a violent act to be attributable to an epileptic seizure, the seizure must begin suddenly and without provocation, last for a brief period (1 to 3 minutes), and end abruptly. Further, the violent act must manifest in the context of impaired consciousness and is typically accompanied by amnesia for the events.

Epilepsy in the Courtroom

Psychiatrists are frequently called upon to provide consultation in cases where individuals have been charged with crimes related to a seizure episode. In these circumstances, courts may ask experts to answer specific questions pertaining to the person's illness and state of mind as they pertain to the stage of the judicial inquiry. In the pre-trial stage, psychiatrists are often called upon to provide opinions regarding competence to stand trial. In the trial stage, psychiatric testimony may offer evidence to support or negate a defense of insanity. In the post-trial stage, courts often lean on psychiatric evidence related to risk of future violence and need for treatment in making decisions regarding disposition and length of sentences. The focus of each of these evaluations is different and depends on the legal issue. When providing consultation in such cases, evaluators need to pay attention to a myriad of clinical issues unique to epilepsy.

Evaluation of Competence to Stand Trial

Competence to stand trial, or to proceed, refers to the ability of a person to comprehend the charges they are facing and participate in the process of criminal adjudication. Anglo-American law recognizes the unfairness of trying criminal defendants who are not competent, and this competency is a fundamental protection guaranteed by the US Constitution. The minimal constitutional standard for determining competence to stand trial in the US is derived from a 1960 Supreme Court decision—Dusky v US.8 Most jurisdictions in the US require the presence of some mental abnormality for a finding of incompetence.

Forensic evaluators asked to form an opinion regarding a criminal defendant's competency to stand trial should adhere to the methodology described in the practice guidelines published by the American Academy for Psychiatry and the Law.9 In defendants with epilepsy, the evaluator must assess if he or she has psychiatric symptoms that might affect the ability to proceed, and what is the origin of these symptoms.

Prevalence of psychiatric comorbidities ranges from 20% to 40% in individuals with epilepsy,10 with a higher prevalence of depression, suicidal ideation, and anxiety disorders. Behavioral symptoms encountered in individuals with epilepsy may be related to the seizure itself or independent of seizures. For instance, post-ictal psychosis can occur in up to 18% of individuals with epilepsy in the post-ictal period.11 These postictal psychotic states are transient and usually last from 1 day to several weeks, although in a small minority may lead to chronicity.12 Additionally, cognitive deficits are commonly encountered in epilepsy and may be attributable to the epileptiform discharges,13 underlying etiological conditions,14 or antiepileptic drugs used in the treatment of seizures.15 These are commonly manifest as memory problems but can also effect attention, language, intellectual functioning, and information processing abilities.

Because an evaluation for competence to stand trial hinges upon the person's current mental state and abilities, forensic evaluators should be well versed with the complex neurobehavioral symptoms that manifest in individuals with epilepsy. Evaluators must also ascertain whether these symptoms are due to primary psychiatric diagnoses or secondary to an underlying organic pathology, and how they affect the defendant's abilities to proceed. Additionally, in making treatment recommendations, the forensic evaluator must distinguish the symptoms that are transient and self-limited, as seen in the post-ictal period, versus those that are enduring and will require long-term treatment for amelioration.

Evaluation of Criminal Responsibility

The insanity defense is a legal construct that, under some circumstances, excuses defendants with mental illness from legal responsibility for criminal behavior. It is available in all but four states in the US.16 When a crime is suspected to have occurred during an epileptic seizure, forensic evaluators are occasionally called to evaluate whether the defendant meets a jurisdiction's test for a finding of not criminally responsible. Such an evaluation usually requires the evaluator to determine how the defendant's mental state at the time of the crime affected awareness of his or her conduct and ability to control his or her actions.

In Canada, the United Kingdom, and Australia, individuals whose crimes are related to automatisms related to major mental illness (such as epilepsy) are found to be suffering from “insane automatisms” and are set free. Within the US jurisdictions are split between recognizing insanity and automatism as separate defenses and classifying automatism as a species of the insanity defense.16 It is recognized that the presence of evidence of epileptic automatisms can negate criminal responsibility in qualifying cases. Apart from automatisms, other epilepsy-related behavioral phenomenon may also be implicated in violence related to seizures. For instance, when the defendant's state of mind at the time of commission of the crime indicates presence of post-ictal psychosis or delirium, a meticulous psychiatric evaluation can help explain whether the jurisdictional standard for the insanity defense is met or not.

The methodology for conducting a standard psychiatric evaluation of defendants raising the insanity defense is available in the practice guidelines17 published by the American Academy of Psychiatry and the Law. In violent crimes related to peri-ictal phenomenon, the most important question that such an evaluation aims to answer is: Was the violent behavior a result of an epileptic seizure?

In 1980, a panel of 18 epileptologists convened in Maryland and suggested five relevant criteria to determine whether in a specific instance a violent crime was the result of an epileptic seizure:18 First, the diagnosis of epilepsy should be established by at least one neurologist with special competence in neurology. Second, the presence of epileptic automatisms should be documented by history, closed circuit television, and EEG biotelemetry. Third, the presence of aggression during epileptic automatisms should be verified in a video recorded seizure in which ictal epileptiform patterns are also recorded on the EEG. Fourth, the aggressive or violent act should be characteristic of the patient's habitual seizures, as elicited by history, and, finally, a clinical judgment should be made by the neurologist, attesting to the possibility that the act was part of a seizure.

These criteria continue to be relevant to psychiatrists attempting to form an opinion about criminal responsibility. The evaluating psychiatrist must then gather detailed information about the onset and course of the seizure disorder, the characteristics of each seizure, the response to treatments, and the observed accompanying neurobehavioral sequelae. Information from collateral sources is key, because amnesia for events is typical and often family members and other witnesses provide corroborating facts. The defendant's treating neurologist, medical record, and past video-EEG records (if available) provide valuable clues to behaviors during past seizures. Results of laboratory tests such as blood levels of antiepileptic drugs often help explain noncompliance or breakthrough seizures in otherwise treatment compliant defendants. It is of utmost importance that the evaluating psychiatrist collaborate with a neurologist specializing in epilepsy in such cases. Finally, the evaluating psychiatrist must be well versed with the jurisdictional standard for insanity, and any other available defenses that might help diminish criminal responsibility.

Post-Trial Evaluations

A verdict of not criminally responsible due to mental illness or deficiency leads to an assessment of the defendant's risk for violence in the future. High-risk defendants are deemed to be dangerous to the public and are civilly committed, at times indeterminately. Courts rely heavily on forensic psychiatric assessments in making determinations of dangerousness. These are complex assessments that involve a consideration of a myriad of empirically validated risk factors with predictive value. Even in cases where a defendant is found guilty of the crime, courts allow introduction of psychiatric evidence related to a defendant's mental or physical condition at the pre-sentencing phase. Courts frequently modify sentencing for these crimes based on such evidence, in consideration of factors such as special treatment needs and risk for future violence.

Risk Assessment in Epilepsy

When a person is found not criminally responsible due to epilepsy, the forensic evaluator is asked to inform the court regarding the risk of future violence conformed on the defendant by the presence of epilepsy. This is a complex task that must be individualized for each defendant. The evaluator must obtain a detailed history of the epilepsy, including the frequency, occurrence, and precipitants of all seizures across the person's life span. Special consideration must be paid to the neurobehavioral symptoms associated with seizures, especially those that have led to violence in the past. Effectiveness of current treatments in controlling the seizures is another important consideration, because it can help predict the occurrence and frequency of future seizures. Finally, the risk conferred by independent co-occurring factors (for example personality disorder, substance use) must factor into the evaluators final determination.

Epilepsy is considered to be resolved for individuals who had an age-dependent epilepsy syndrome but are now past the applicable age or those who have remained seizure-free for the last 10 years, with no seizure medicines for the last 5 years.19 Even in the presence of unresolved epilepsy, forensic evaluators must be familiar with scientific literature pertaining to risk of violence in the presence of epilepsy to express an informed opinion to the court.

Numerous studies have attempted to explore the connection between violence and epilepsy with largely inconclusive results. Early studies were focused on violent criminals with epilepsy, because the prevalence of epilepsy was found to be 2- to 4-fold higher in individuals incarcerated relative to control populations.20 However, most studies of individuals who are incarcerated with epilepsy failed to attribute violent acts to epileptic automatisms21 or seizures.22

The expert panel of epileptologists in 1980 concluded that aggression is extremely rare during seizures and the crimes of murder or manslaughter are nearly impossible during random automatisms.18 The findings of this panel were challenged, and a subsequent study by Lewis et al.23 attributed violence acts seen in a sample of adolescent boys to psychomotor symptoms and signs that are also seen in epilepsy. However, this study failed to correlate actual presence of epilepsy with violent acts. A Finnish epidemiological study24 later failed to find a correlation between delinquency and occurrence of epilepsy in boys before age 14 years.

In 2009, Fazel et al.25 performed a meta-analysis of literature on the association of common neurological disorders and violence. Only nine studies were identified that compared the risk of violence in epilepsy or traumatic brain injury compared with unaffected controls. The authors highlighted three main findings. First, there is a paucity of studies addressing the topic, and what little there is has methodological shortcomings. Therefore, the evidence linking epilepsy to violence is quite limited and needs replication in a true population-based study of crime and violence. Second, epilepsy and brain injury appear to differ in their risk of violence compared with the general population—in their analysis,25 epilepsy was in fact inversely associated with violence, whereas brain injury increased the risk. Finally, comorbid psychopathology appeared to be associated with violence in both disorders.

The study above highlighted that the true risk for violence in epilepsy could only be estimated from studies conducted on the general population that are free of confounding factors. To address this gap in knowledge, in 2011 Fazel et al.26 combined Swedish population registers from 1973 to 2009, and examined associations of epilepsy and traumatic brain injury with subsequent violent crime. They identified 22,947 individuals with epilepsy and compared them with 224,006 age- and gender-matched general population controls. They found significantly increased odds of violent crime among epilepsy patients compared with population controls. However, this association disappeared when individuals with epilepsy were compared with their unaffected siblings. This means that the increased risk for violent crime found in comparison with population controls was due to familial confounding and after adjustment for familial confounding, epilepsy was not associated with increased risk of violent crime.

Conclusion

For many centuries, epilepsy was a poorly understood illness surrounded by a shroud of mystery. Due to its varied and often dramatic presentation, misconceptions about violence committed by individuals with epilepsy remain widely prevalent. We now know that violence related to an epileptic seizure is a rare phenomenon. In such cases, violence most often occurs in the post-ictal phase of a complex partial seizure, and can often mimic planned, goal-directed activity. Violence in the inter-ictal period is far more common and is usually unrelated to EEG changes in the brain.

Long-term risk of violence due to presence of epilepsy is still poorly understood. Most existing studies conducted on select populations, such as prisoners or adolescent boys, have found that violence is not linked to the epilepsy itself. However, there is a paucity of population-based epidemiological studies in this area. At present, guidance is available only from one study conducted by Fazel et al.26 who concluded that the presence of epilepsy does not increase risk for future violence. However, there is a need for other independent population-based studies to conclusively put this issue to rest.

Forensic evaluators who are called upon to provide an opinion in court cases of peri-ictal violence must be well versed with the advances in the field, including new classificatory schemes and literature relevant to epilepsy and violent crime. In my view, in determining attribution of the violent act to peri-ictal phenomenon, it is essential that forensic evaluators collaborate with a neurologist specializing in epilepsy and follow the guidelines in this article. When advising courts about the dangerousness of individuals with epilepsy, evaluators should keep in mind that the vast majority of patients with epilepsy are treated in an outpatient setting and that in most Western countries, individuals who have committed crimes related to epilepsy are managed safely in the community under court supervision.

References

  1. Fisher R, Acevedo C, Arzimanoglou A, et al. ILAE official report: a practical clinical definition of epilepsy. Epilepsia. 2014;55(4):475–482. doi:. doi:10.1111/epi.12550 [CrossRef]
  2. Zack M, Kobau R. National and state estimates of the numbers of adults and children with active epilepsy-United States, 2015. MMWR Morb Mortal Wkly Rep. 2017;66(31):821–825. doi:. doi:10.15585/mmwr.mm6631a1 [CrossRef]
  3. Scheffer IE, Berkovic S, Capovilla G, et al. ILAE classification of the epilepsies: position paper of the ILAE Commission for Classification and Terminology. Epilepsia. 2017;58(4):512–521. doi:. doi:10.1111/epi.13709 [CrossRef]
  4. Borum R, Appelbaum KL. Epilepsy, aggression, and criminal responsibility. Psychiatr Serv. 1994;47(7):762–763. doi:10.1176/ps.47.7.762 [CrossRef].
  5. Mendez MF. Postictal violence and epilepsy. Psychosomatics. 1998;39(5):478–480. doi:. doi:10.1016/S0033-3182(98)71312-X [CrossRef]
  6. Kanemoto K, Kawasaki J, Mori E. Violence and epilepsy: a close relations between violence and postictal psychosis. Epilepsia. 1999;40(1):107–109. doi:10.1111/j.1528-1157.1999.tb01996.x [CrossRef]
  7. Marsh L, Krauss GL. Aggression and violence in patients with epilepsy. Epilepsy Behav. 2000;1(3):160–168. doi:. doi:10.1006/ebeh.2000.0061 [CrossRef]
  8. Dusky v United States, 362 US 402 (1960)
  9. Mossman D, Noffsinger SG, Ash P, et al. AAPL practice guideline for the forensic psychiatric evaluation of competence to stand trial. J Am Acad Psychiatry Law. 2007;35(suppl 4):S3–S72.
  10. Tellez-Zenteno JF, Patten SB, Jette N, et al. Psychiatric comorbidity in epilepsy: a population-based analysis. Epilepsia2007;48(12):2336–2344. doi:10.1111/j.1528-1167.2007.01222.x [CrossRef].
  11. Umbricht D, Degreef G, Barr WB, et al. Postictal and chronic psychoses in patients with temporal lobe epilepsy. Am J Psychiatry. 1995;152:224–231. doi:. doi:10.1176/ajp.152.2.224 [CrossRef]
  12. Kanner AM, Stagno S, Kotagal P, Morris HH. Postictal psychiatric events during prolonged video-electronencephalographic monitoring studies. Arch Neurol. 1996;53:258–263. doi:10.1001/archneur.1996.00550030070024 [CrossRef]
  13. Aldenkamp AP. Effect of seizures and epileptiform discharges on cognitive function. Epilepsia. 1997;38(suppl 1):S52–S55. doi:10.1111/j.1528-1157.1997.tb04520.x [CrossRef]
  14. Holmes GL. Cognitive impairment in epilepsy: the role of network abnormalities. Epileptic Disord. 2015;17(2):101–116. doi:10.1684/epd.2015.0739 [CrossRef].
  15. Goldberg JF, Burdick KE. Cognitive side effects of anticonvulsants. J Clin Psychiatry. 2001;62(suppl 14):27–33.
  16. AAPL Practice Guideline for forensic psychiatric evaluation of defendants raising the insanity defense. https://www.aapl.org/docs/pdf/Insanity%20Defense%20Guidelines.pdf. Retrieved November 13, 2017.
  17. American Academy of Psychiatry and the Law (AAPL). AAPL practice guideline for forensic psychiatric evaluation of defendants raising the insanity defense. J Am Acad Psychiatry Law. 2014;42(suppl 4):S3–S76.
  18. Delgado-Escueta AV, Mattson RH, King L, et al. Special report: the nature of aggression during epileptic seizures. N Engl J Med. 1981;305(12):711–716. doi:. doi:10.1056/NEJM198109173051231 [CrossRef]
  19. Fisher R, Acevedo C, Arzimanoglou A, et al. A practical clinical definition of epilepsy. Epilepsia. 2014;55(4):475–482. doi:. doi:10.1111/epi.12550 [CrossRef]
  20. Treiman DM. Epilepsy and violence: medical and legal issues. Epilepsia. 1986;27:S77–S104. doi:10.1111/j.1528-1157.1986.tb05742.x [CrossRef]
  21. Gunn J, Fenton G. Epilepsy, automatism, and crime. Lancet. 1971;1:1173–1176. doi:10.1016/S0140-6736(71)91676-X [CrossRef]
  22. Whitman S, Coleman TE, Patmon C, Desai BT, et al. Epilepsy in prison: elevated prevalence and no relationship to violence. Neurology. 1984;34:775–782. doi:10.1212/WNL.34.6.775 [CrossRef]
  23. Lewis DO, Pincus JH, Shanok SS, et al. Psychomotor epilepsy and violence in a group of incarcerated adolescent boys. Am J Psychiatry. 1982;139:882–887. doi:. doi:10.1176/ajp.139.7.882 [CrossRef]
  24. Rantakallio P, Koiranen M, Mottonen J. Association of perinatal events, epilepsy, and central nervous system trauma with juvenile delinquency. Arch Dis Child. 1992;67:1459–1461. doi:10.1136/adc.67.12.1459 [CrossRef]
  25. Fazel S, Philipson J, Gardiner L, et al. Neurological disorders and violence: a systematic review and meta-analysis with a focus on epilepsy and traumatic brain injury. J Neurol. 2009;256:1591–1602. doi:. doi:10.1007/s00415-009-5134-2 [CrossRef]
  26. Fazel S, Lichtenstein P, Grann M, et al. Risk of violent crime in individuals with epilepsy and traumatic brain injury: a 35-year Swedish population study. PLoS Med. 2011;8(12):e1001150. doi:. doi:10.1371/journal.pmed.1001150 [CrossRef]
Authors

Chinmoy Gulrajani, MBBS, is an Assistant Professor of Psychiatry, University of Minnesota – Twin Cities.

Address correspondence to Chinmoy Gulrajani, MBBS, 2450 Riverside Avenue, F 233, University of Minnesota Medical Center, Minneapolis, MN 55454; email: gulrajanic@gmail.com.

Disclosure: The author has no relevant financial relationships to disclose.

10.3928/00485713-20171113-01

Sign up to receive

Journal E-contents