Baclofen Treatment in the Criminal Law Context

While the debate about the efficacy of baclofen treatment for alcohol use disorder continues, the relevance of the treatment and underlying diagnosis of an anxiety disorder is important now in the context of criminal cases where there is a question as to the mental capacity of an accused to form the requisite intention to commit a crime.

Criminal cases are decided by courts on the basis of evidence presented to them, not on the basis of research or public policies relating to the safety or efficacy of drugs.  At present, baclofen is a legally obtainable drug and is prescribable in most countries, or avaible over the counter for a wide range of neurological conditions ranging in severity from hiccups to multiple-sclerosis, and now Alcohol Use Disorder.

The underlying diagnosis of a neurological anxiety becomes relevant in a criminal case where an accused maintains that, despite their intoxication, his or actions were caused by a genuine perception of the existence of a state of affairs which would excuse their conduct from criminal sanction.  This perception may have been mistaken, but so long as it was a genuinely held perception, they are entitled to an acquittal of a criminal offence, albeit that they might be dealt with in some other way, for instance by way of an order that they received medical treatment for their condition.

It is important, now, that the underlying diagnosis of anxiety in some alcoholics is taken into account in criminal cases.  Courts are not required to consider all of the medical evidence or literature which might be available in respect of an accused’s condition.  Nor, in fact, are they restricted by the evidence which is presented to them in court.

“In the USA, the courts do not have to rely on a behavioral expert’s advice when deciding about mental abnormality, as Morse (p. 894) explains:

“The criminal law can, but need not, turn to scientific or clinical definitions of mental abnormality as legal criteria when promulgating mental health laws. The Supreme Court has reiterated on numerous occasions that there is substantial dispute within the mental health professions about diagnoses, that psychiatry is not an exact science, and that the law is not bound by extra-legal professional criteria. The law often uses technical terms, such as ‘mental disorder,’ or semi-technical qualifiers, such as ‘severe,’ but non-technical terms, such as ‘mental abnormality,’ have also been approved. Legal criteria are adopted to answer legal questions. As long as they plausibly do so, they will be approved even if they are not psychiatric or psychological criteria.”

Yet, what is interesting about the case we present is that the court did turn to behavioral experts, but when the latter were unable to diagnose a disorder, the Court nevertheless decided that there was a mental disorder.” Morse SJ. Mental disorder and criminal law101 J Crim Law Criminal (2011) 3:885–968. Quoted in “Who Establishes the Presence of a Mental Disorder in Defendants? Medicolegal considerations of a European Court of Rights Case, Tijs Kooijmans and Gerben Meynen,

Legal practitioners representing clients in criminal cases who have alcohol issues should be on notice.  If their client instructs them that they committed offence because they were suffering from a disturbed pattern of thoughts, despite their alcoholism, it is a matter for them to raise the possibility that their client was suffering from an underlying mental or neurological condition which may provide them with a defence, and to find an expert to support their client’s case.


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