Automatism and diabetes

The piecemeal development of the common law defence of automatism has resulted in injustice because of the pressure that can be brought on a defendant to plead guilty to an offence which on the evidence they did not commit. The medical meaning of the term 'automatism' is limited to virtually mindless behaviour and it is used, and then on rare occasions only, in connection with the disease of epilepsy. A much wider legal meaning has evolved, so that generally it is a defence that the defendant's conduct was involuntary. In this context Lord Denning (in Bratty v A-G for Northern Ireland [1963] AC 386, 409) regarded an act as involuntary when it is done 'by the muscles without any control by the mind' or 'by a person who is not conscious of what he is doing'.
The cause of the defendant's automatism is of crucial importance. When it arises from a 'disease of the mind', the defence is one of insanity and the onus of proof, albeit on a balance of probability, is on the accused. However, if the automatism is due to a cause other than a 'disease of the mind', the onus of proof is on the Crown and the automatism must be disproved. In order to escape from mandatory commitment to a hospital, a defendant who wishes to plead automatism when being tried on indictment will not claim that it is of the insane variety. Such a refusal was made by the defendant in R v Hennessy [1989] 1 WLR 287. Lord Lane CJ delivered the judgment of the Court of Appeal on the distinction between 'insane' and 'non-insane' automatism. The need for guidance was acknowledged by Lawton LJ in R v Quick and Paddison [1973] QB 910, when he described the defence as a 'quagmire of law seldom entered nowadays save by those in desperate need of some kind of defence'.
Hyperglycaemia and Hennessy
Mr Hennessy was an insulin-dependent diabetic. He was charged, inter alia, with taking a conveyance without authority, contrary to s.12(1) of the Theft Act 1968. Seeking to raise a defence of non-insane automatism, Mr Hennessy claimed that, beset by marital and employment problems, he had not taken his proper dose of insulin for several days. At the time of the alleged offence he was in a state of hyperglycaemia, caused or contributed to by anxiety and depression.
Medical evidence was given outlining the effect of diabetes, which is a deficiency in the system of the production of hormones that should balance the sugar metabolism. In the absence of the hormone, which is insulin, the blood sugar rises. If the patient fails to take his insulin and adhere to a proper diet, then hyperglycaemia will supervene. If unchecked, the liver becomes affected and the increasingly high level of sugar can result in drowsiness, loss of consciousness and coma. Evidence was also given that anxiety can increase the blood sugar level and that a patient's ability and awareness of what is going on could be impaired. After the trial judge ruled that Mr Hennessy's alleged state of mind was caused by disease, namely diabetes, and that he therefore had no defence of non-insane automatism (because his state of mind was 'insanity' within the M'Naghten rules), Mr Hennessy changed his plea to guilty. He appealed against conviction on the ground that the ruling erred and his defence of non-insane automatism should have been left to the jury.
In dismissing the appeal, Lord Lane held that the judge's ruling was correct. External factors, such as marital and employment problems, can undoubtedly result in stress, anxiety and depression. However these consequential conditions are not in themselves, separately or together, external factors of the kind capable in law, of causing or contributing to a state of non-insane automatism, because they constitute a state of mind prone to recur (P. 294).
N.Naghten
Although supported by recent precedent, the Hennessy decision is to be regretted for a number of reasons, which readily become apparent. It confirms the view that insanity is a legal, not a medical, concept. Once the defendant has put his state of mind in issue, the judge must decide whether it is a case of legal insanity within the M.Naghten rules or a case of non-insane automatism. Lord Lane recognised the fact that although the M.Naghten rules have lost much of their importance, 'they are still relevant in so far as they may affect the defence of automatism' (p.291).
The M.Naghten rules are relevant because, if a defendant's failure to realise the nature and quality of his act was due to a defect of reason from a disease of the mind then, in the eyes of the law, he is insane. Alternatively, if he did not know the nature and quality of his act because of something which did not amount to defect of reason from disease of the mind, then he will probably be entitled to a straightforward acquittal. Although the language of the M.Naghten rules is arcane, its familiarity can be reassuring.
Less reassuring is the interpretation in Hennessy, when it had to be decided whether the defendant's condition could properly be described as a 'disease of the mind'. Lord Lane felt tha t the central issue was whether the proper functioning of the defendant's mind was disturbed by disease or some external factor. He considered uncritically Lord Diplock's view in the leading case of R v Sullivan [1984] AC 156, 172, that a 'disease of the mind. might manifest itself only for a short time and might be either organic (as in epilepsy) or functional.
Sullivan
Mr Sullivan had been charged with assault occasioning actual bodily harm after he had attacked a friend while he was recovering from a seizure caused by petit mal epilepsy. The medical evidence was that, not only is it most unusual for a sufferer from petit mal to behave violently during an epileptic seizure, but that also such violence is unforseeable and that the sufferer would be unaware of what he did. The judge ruled against Mr Sullivan's submission that this was evidence of only non-insane automatism. To avoid mandatory commitment, Mr Sullivan (like Mr Hennessy) changed his plea to guilty, and the judge directed the jury to convict. Both the Court of Appeal and the House of Lords affirmed the judge's ruling on the insanity point.
Professor Glanville Williams in Textbook of Criminal Law (second ed, 1983) regards Sullivan as 'vastly' extending the legal concept of 'disease of the mind' and being of 'great concern to sufferers from epilepsy and . . . capable of having wider implicatons' (p.669). Before Sullivan, the general view was that adopted by Lord Denning in Bratty, when he said that 'any disorder which has manifested itself in violence and is prone to recur is a disease of the mind' (pp. 410 to 412). It was thought that the converse was also valid, in that no mental disorder is a disease of the mind unless it is likely to manifest itself in a dangerous way. This appears to be denied in Sullivan, where medical evidence was given that it is extremely rare for a sufferer from petit mal to act violently during an epileptic seizure. Lord Diplock appears to suggest that only where the temporary impairment resulted from an external factor, such as a blow to the head, will the epileptic attack be not attributed to a disease of the mind.
Hypoglycaemia, Quick and Paddison
The House of Lords in Sullivan approved the 'external factor' doctrine invented by Lawton LJ in Quick and Paddison. Mr Quick, a diabetic like Mr Hennessy, had inflicted actual bodily harm, and he called medical evidence to show that, at the time of the alleged assault, he was suffering from hypoglycaemia and was unsure of his actions. Hypoglycaemia (a deficiency in blood sugar) is to be contrasted with hyperglycaemia (an excess of blood sugar). Although there is great individual variability, a diabetic patient, such as Mr Hennessy, who has a very high level of blood sugar due to lack of insulin and is in a hyperglycaemic condition, might not be clear about what he is doing and be a little befuddled. The reverse condition, hypoglycaemia, caused by an excess of insulin, produces these symptoms very markedly and occasionally sufferers are arrested for being drunk.
After the judge ruled that a hypoglycaemic defendant raises the defence of insanity, Mr Quick changed his plea to guilty. On appeal it was held that Mr Quick's alleged mental condition was not caused by diabetes. It was caused by his taking insulin on the morning of the alleged assault and thereafter eating too little food. His condition was the result of an external factor, not disease, and the defence of non-insane automatism should have been left to the jury.
Lawton LJ, in Quick and Paddison, suggests that hyperglycaemia, Mr Hennessy's alleged condition, caused by an inherent defect and not corrected by insulin, is a disease. If it does cause a malfunction of the mind, then the case may fall within the insanity rules (p.922). A differently constituted Court of Appeal regarded the factual difference in the causation of Mr Quick's and Mr Hennessy's conditions as crucial. The general rule is that conduct is regarded as involuntary, but sane, if it resulted from some external factor, such as an overdose of insulin. Conduct is seen as insane if it arose from some internal factor or disease. Justification for the distinction can be made on the ground that it is in the public interest to identify those who can be safely acquitted, and those who are dangerous and so need restraint.
Distinctions
The implications of the external/internal factor distinction are disturbing, because it creates arbitrary rules. Should a diabetic, such as Mr Hennessy, suffer a hyper-glycaemic episode merely because he failed to eat enough, then any injury that he inflicts will result in an insanity verdict because his mental condition is not caused by an external factor. On the other hand, if the diabetic produced his state of automatism by taking insulin (and thereafter failing to eat), he would be regarded as being in a state of non-insane automatism. Professor Glanville Williams concludes that 'There is nothing to be said for drawing the line in this way' (Butler committee on mentally abnormal offenders, p.672) and that it is 'irrational' (p.684).
In Sullivan, the House of Lords recognised the deficiency of the distinction when it expressed sympathy with the defendant's plight. Its decision that epilepsy, because it is a disease of the mind and an internal condition, is to be regarded as insane automatism, means that both sleep walking and arteriosclerosis would be similarly regarded. Many would question the view that people with such conditions require indefinite detention in a hospital. Moreover, faced with this prospect, defendants will change their pleas to guilty of the offence charged -- as did Messrs Quick, Sullivan and Hennessy.
Professors Smith and Hogan in Criminal Law (sixth ed, 1988) regard the fact that defendants, such as Quick and Sullivan, who on the evidence are not guilty of an offence, but plead guilty to it rather than submit to an insanity verdit, as 'gravely wrong' (p.198). The Court of Appeal in Sullivan did not question the propriety of accepting such a plea, and the House of Lords left the matter open. Professors Smith and Hogan suggest that the problem may be resolved by abandoning the term 'insanity' and giving the courts wide powers of disposal on a verdict of not guilty on grounds of mental disorder. This would remove 'the liability to indefinite detention and much of the stigma' (ibid).
The argument against mandatory commitment is persuasive. In 1963 the criminal law revision committee (Cmnd 2149 para 34) recommended that the judiciary be given a discretion as to disposal, and in 1975 the Butler committee (Cmnd 6244 para 18.42) made a similar recommendation with the support of the higher judiciary. Most recently the draft Criminal Code Bill (FLaw Com No. 143, 1985) contained comparable proposals. Unfortunately the Home Office shows little inclination to withdraw its opposition to any change.