An article published in a recent issue of Scientific American examines the ways that the U.S. justice system often stumbles when confronted with cases that involve FTD or another form of dementia.

The article highlights that while a person diagnosed with a form of dementia might commit an illegal action, usually, due to the challenges of their diagnosis, they did not intend to do so. In many cases, charges are dropped once the diagnosis is realized and police and prosecutors realize there was no ill intent.

However, because FTD affects the areas of the brain associated with behavior, inhibition, and the ability to sympathize with others, persons living with FTD may commit crimes because their sense of right and wrong has been altered. In some cases, FTD can impact a person’s insight and leave them unable to perceive their illness and the limitations associated with it, a symptom known as anosognosia. The article uses the experiences of former obstetrician David Rothman to illustrate how these symptoms can confound the justice system.

A few years after shutting down his practice, Rothman became the director of a new clinic called “Medcore” that ostensibly treated persons with HIV but was actually a scam to bill Medicare for fraudulent expenses. When the scam was uncovered, Rothman was arrested and charged with health-care fraud and conspiracy. Months before his arrest, however, Rothman had been diagnosed with Alzheimer’s disease, prompting his lawyer to request an evaluation to determine if he could stand trial. To meet the “Dusky standard” of being competent to stand trial, Rothman had to understand the charges and penalties against him and that he could assist in preparing his own defense. (The Dusky standard applies to all neurological conditions, including dementias.)

Using standard biological and cognitive screenings, a court-appointed neuropsychologist evaluated Rothman and found anomalies that didn’t match an Alzheimer’s diagnosis, such as difficulty recognizing things he had just seen. The doctor concluded that Rothman did not have dementia, and was in fact faking his condition.

After Rothman was tried and found guilty on all counts, his lawyer filed a motion for a second evaluation to determine Rothman’s ability to undergo sentencing. During the assessment, the court-assigned neurologist noted a lack of insight from Rothman about what was going on at the clinic, and a failure to recognize that he had made any errors in judgment. Additionally, MRI scans showed atrophy patterns in a brain region associated with behavior. As a result, the second expert diagnosed Rothman with FTD.

During a court-ordered follow-up evaluation, multiple experts determined that Rothman had been faking his symptoms, a conclusion that the judge disagreed with. As the author notes, it would turn out that the evaluators lacked experience with persons diagnosed with FTD or other dementias. As Rothman’s condition progressed, he was released to the care of his family; eventually the Department of Justiced dropped his case altogether.

The article’s author, Jessica Wapner, underscores that other persons diagnosed facing criminal charges have not fared nearly as well as Rothman. She notes the lack of protections under the law for persons with dementia, similar to those for persons with psychiatric illnesses.

According to researcher Jalayne Arias, who conducted interviews with attorneys to evaluate how persons with dementia were handled, the criminal justice system lacks a consistent approach to managing persons with dementia. Even when police are aware that the person they arrested has a form of dementia, they have few places to bring them aside from a hospital or police station.

Tom Wisniewski, MD, the director of the NYU Langone Center for Memory Evaluation and Treatment, told Wapner about a physician, later diagnosed with dementia, who had been writing unnecessary narcotic prescriptions. The physician was sentenced to 15 years in prison.

“He was barely cognizant of his name after five years,” Dr. Wisniewski said. “But he stayed incarcerated. Dementia patients are dealt with in an extremely cruel fashion.”

Most prisons and jails lack dementia care services, and while some have memory wards, they are few in number. While persons diagnosed without care partners could be placed in a long-term care facility, the costs of such facilities are prohibitive even for families with pooled financial resources – and as Wapner points out, a criminal record may make someone ineligible for such facilities.

Arias has proposed a solution to make the justice system more accessible and empathetic to the challenges faced by persons diagnosed. She suggests the creation of a specialized court that takes into account dementia symptoms. Her proposal is philosophically similar to juvenile court, which recognizes that juveniles should not be held to the same legal standards as adults because their brains are not developed fully. Another solution Wapner mentions is to allow a plea of “not guilty” due to a dementia diagnosis.

Do you need assistance with troublesome behaviors stemming from FTD? AFTD’s HelpLine can provide guidance and resources to navigate the disease – reach out to the HelpLine at 1-866-507-7222 or info@theaftd.org.