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Conscious or Unconscious?

Can someone be medically conscious but considered legally unconscious? What an interesting conundrum!

According to the Oxford Dictionary, “unconsciousness is the state of being unconscious or the state of being uninformed or unaware” and “automatism is the performance of actions without conscious thought or intention, involuntary” (Oxford English Dictionary, 2021).

Even in the medical arena there are different definitions of unconsciousness depending on whether the patient is under treatment for a psychiatric illness or a physical one.

In the physical arena, unconsciousness is considered either temporary or permanent depending on the cause and extent of the damage to the brain. Consciousness is “the awareness of oneself and the environment and the ability to respond to external stimuli, whereas impaired consciousness can be defined as reduced alertness, the ability to be aroused, or awareness of oneself and the environment” (Bauer, De Jesus, & Beunin, Updated June 5, 2021). Depending on the extent of the injury or disease process, a patient can regain full consciousness without intervention, however, others will require more intensive treatment to achieve it.

Medical Physical Unconsciousness

While a patient is in a physical state of unconsciousness, they lose all protective reflexes and sensation. A coma is profound and sometimes persistent with a patient not even responding to painful stimulation. Structural causes of unconsciousness are stroke, traumatic brain injury, brain hemorrhage, brain tumors, inflammation, blood clot, or acute hydrocephalus. Systemic causes of unconsciousness are low or high blood sugar, low or high sodium levels, high calcium levels, seizures, systemic infection, meningitis, encephalitis, adrenal gland issues, pituitary gland issues, medication overdose, illicit drug use, excessive alcohol intake, heavy metal poisoning, kidney problems, infectious diseases, herbicides, carbon monoxide, and medical anesthesia. Generally, it involves dysfunction of the nerves relative to a decrease in glucose (sugar) or oxygen to the brain, but an injury can directly or indirectly damage the arousal area of the brain.

Altered Level of Consciousness (ALOC)

According to the ICD 10, altered level of consciousness is listed under the “Altered mental status – unspecified” diagnosis code. When a patient comes in the Emergency Department (ED) of the hospital their level of consciousness is assessed and if the patient is unable to answer questions, their family or whoever is with them is questioned regarding their baseline level of consciousness or some good detective work is in order. If there is any change from baseline, then “new-onset altered level of consciousness” is diagnosed and assessed. However, the exact cause is not always apparent in the ED.

Altered level of consciousness is a state of altered arousal or attention that isn’t caused by physiological drowsiness or sleepiness and is a change from their baseline behavior. Fundamentally it involves changes in a patient’s attention, memory, awareness, and/or alertness. It can be related to something neurological or a general medical illness. According to Jung, the most common causes of ALOC in the Emergency Department are systemic infection, metabolic causes, stroke, cardiogenic causes, seizure, toxicity, psychiatric disorders, traumatic brain injury, central nervous system infection, and undetermined. 27% of these patients were in their 80’s and 49-53% of them were in their 70’s and 80’s in this study. Unfortunately, in these cases, patients are unable to give consent for their care and the physician has to treat the patient without informed consent because they are unable to comprehend effectively. Consent can be obtained from a family member but if they are not present then another physician needs to sign off on the case. Occasionally these patients need to be restrained due to posing a risk to themselves or others.

Medical Psychiatric Unconsciousness

Psychiatric causes of unconsciousness are catatonia, severe depression, conversion disorder, and malingering. The unconscious mind was studied by Sigmund Freud who believed that consciousness only represented a small portion of our mental activity and modern-day research has supported his theory. However, awareness does seem to be restricted to consciousness. In general, rational thought is seen to be conscious and irrational thought is usually ascribed to the unconscious. Upon further study however, many unconscious processes do fit that characterization, but many others are very rational and reality-congruent such as information processing, emotional responses, and readiness potential for action.

Psychological defense mechanisms provide “resilience to and adaptive compensation” in order to relieve emotional stress. The problem arises when a person has immature defense mechanisms and develops a psychiatric disorder that causes dissociation in order to detach from their emotional state. Detachment can occur in various states from mild to severe with emotional numbing being on the mild end of the spectrum and amnesia, identity fragmentation, depersonalization, and derealization being on the severe end. Any type of defense mechanism provides a person with comfort and relief, however maladaptive, but are generally unconscious applications.

Legal Unconsciousness

According to CALCRIM No 3425, Judicial Council of California Criminal Jury Instructions (2020 Edition):

Unconsciousness is an impairment defense, and the defendant is not guilty of the crime if he/she acted while unconscious. Someone is unconscious when he/she is not conscious of his or her actions. Unconsciousness may be caused by a blackout, an epileptic seizure, involuntary intoxication, or (insert similar condition). [The defense of unconsciousness may not be based on voluntary intoxication.][1] The People must prove beyond a reasonable doubt that the defendant was conscious when he/she acted. If there is reasonable doubt that he/she was conscious, in which case you must find him/her not guilty. An inability to remember or hazy recollection isn’t evidence for unconsciousness. A conflict exists over whether an unsound mental condition can form the basis of a defense of unconsciousness.

Ultimately, the issue of the exact definition of unconsciousness is a source of great debate in the legal world, especially in criminal cases when the defendant appears conscious. Almost all crimes require “mens rea (“guilty mind”) and actus reus (“guilty act”). Many courts recognize unconsciousness as a defense because it prevents one from acting with a guilty mind and if there is no voluntary movement of the body, they couldn’t have committed a criminal act. (Schwartzbach, 2016)


[1] Involuntary intoxication is a compete defense under Penal Code 22 in California and doesn’t fall under unconsciousness


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