Medicine,Science and the Law

The automatism defence has been described as a quagmire of law and as presenting an intractable problem. Why is this so? This paper will analyse and explore the current legal position on automatism. In so doing, it will identify the problems which the case law has created, including the distinction between sane and insane automatism and the status of the ‘external factor doctrine’, and comment briefly on recent reform proposals.

The article offers an overview of the Law Commission's project on Insanity and Automatism and the provisional conclusions reached in its Discussion Paper in 2013.

This paper examines some of the issues raised by the current criminal law defence of automatism and the related defence of insane automatism, and considers what neuroscience may contribute to the reform discussion. It also considers some of the claims made in relation to the impact of neuroimaging in the courtroom. It examines an American medical case report in which an individual’s criminal behaviour is linked to a brain tumour, and considers how the reformed law as presented in the Law Commission for England and Wales’ Discussion Paper might treat such claims. It concludes by examining what assistance the law may gain from a deeper understanding of how a sense of agency emerges from brain states, and the implications of this scientific knowledge for the reform of the law.

Sleep experts are called to assist the jury in deciding the mental state of the accused at the time of their alleged criminal behaviour. This task is difficult as the literature on many sleep disorders, particularly sleepwalking and other parasomnias, is still largely a matter of case reports and case series. The probative value of much of the evidence given is not known. Sleep behaviour in the courts present a number of difficulties which illustrate the dilemmas that face an expert witness faced with ambiguous data and uncertain principles with which to interpret them. Additionally there are substantial policy issues involved which are not always adequately addressed in expert evidence. We outline the role of expert witnesses in such cases.

Cognitive impairment unattended by subjective symptoms or objective signs is an uncommon but important consequence of hypoglycaemia. It can lead to a condition in which a patient behaves as an automaton in a manner totally alien to their usual personality and of which they have no recollection when their blood glucose level is restored to normal. It can cause a wide range of criminal behaviour, although the commonest offences relate to a loss of control, for example driving offences. Determination of criminal responsibility is extremely difficult and relies very heavily upon the quality of the medical evidence and interpretation of the law, which is out of step with current medical science.

On 28 August 2012, the European Court of Human Rights (ECHR) issued a judgment regarding the requirements for the legitimate access of couples to assisted reproductive techniques (ART) and to pre-implantation genetic diagnosis (PGD). This judgment concerns the case of an Italian couple who found out after their first child was born with cystic fibrosis that they were healthy carriers of the disease. When the woman became pregnant again in 2010 and underwent fetal screening, it was found that the unborn child also had cystic fibrosis, whereupon she had the pregnancy terminated on medical grounds. In order to have the embryo genetically screened prior to implantation under the procedure of PGD, the couple sought to use in vitro fertilisation to have another child. Since article 1 of the Italian law strictly limits access to ART to sterile/infertile couples or those in which the man has a sexually transmissible disease, the couple appealed to the European court, raising the question of the violation of articles 8 and 14 of the European Convention on Human Rights. The applicants lodged a complaint that they were not allowed legitimate access to ART and to PGD to select an embryo not affected by the disease. The European Court affirmed that the prohibition imposed by Italian law violated article 8 of the European Convention on Human Rights. Focusing on important regulatory and legal differences among EU Nations in providing ART treatments and PGD, we derived some important similarities and differences.

A diagnosis of drowning is a challenge in legal medicine, as there is generally a lack of pathognomonic findings indicative of drowning. Diatom analysis has been considered very supportive for a diagnosis of drowning, although the test is still controversial for some investigators. We assessed diatoms association with drowning in the peripheral tissues of drowned rats and the effects of the drowning medium on the diatom yield. A modified acid digestion method was optimised for diatom recovery in water and rat tissues. Eighteen adult Wistar rats were employed for the study, subdivided into six groups of three rats. Groups 1, 3 and 5 were drowned in seawater, lake water, or river water respectively, while groups 2, 4 and 6 were controls (immersed after death in seawater, lake water or river water respectively). Water samples were taken from the sea, lake and river in Málaga and Córdoba (Spain) for the purposes of diatomological mapping and drowning of the rats. Diatoms were successfully recovered from all water samples and matched with tissues of the drowned rats. There were significant differences in diatom numbers between control and test samples for all the tissues studied, as well as within test samples. Histological investigations conducted on lung samples obtained from drowned rats provided complementary and valuable information. This study demonstrates the feasibility of the diatom test as a reliable method for the diagnosis of drowning, especially if adequate precautions are taken to avoid contamination, and if interpretation of the analysis is performed in light of other complementary investigations.