Annabelle Belcher and Walter Sinnott-Armstrong, "Neurolaw."
Abstract:
Neurolaw - also known as law and neuroscience or
legal neuroscience - studies legal issues raised by recent
developments in neuroscience, including cognitive and social neuroscience. Some
proponents of neurolaw think that neuroscience will soon be used widely
throughout the legal system and that it is bound to produce profound changes in
both substantive and procedural law. In contrast, other leaders in neurolaw
employ a less sanguine tone, urging caution so as to prevent misuses and abuses
of neuroscience within courts, legislatures, prisons, and other parts of the
legal system. Regardless of perspective, neurolaw studies not only the
descriptive and predictive issues of how neuroscience is and will be used in
the legal system but also the normative issues of how neuroscience should and
should not be used within the legal system. There are several topical areas
where neuroscience potentially enters legal discourse, which we outline
below.[For a discussion of the paper, see here and here]
Henry
Greely, "Prediction, Litigation, Privacy, and Property: Some Possible
Legal and Social Implications of Advances in Neuroscience." [see here]
Abstract:
Neuroscience is rapidly increasing our knowledge of the
functioning, and malfunctioning, of that intricate three-pound organ, the human
brain. When science expands our understanding of something so central to human
existence, advances in science will necessarily cause changes in both our
society and its laws. This paper seeks to forecast and explore the social and
legal changes that neuroscience might bring in four areas: prediction,
litigation, confidentiality and privacy, and patents. The implications in
prediction are similar to those anticipated from human genetics. The
consequences for litigation seem potentially substantial, particularly if
neurosciences leads to better methods to detect lying or bias or allows us to
improve memory retrieval or to check the authenticity of memories. Protecting
mental privacy, both from governmental and private intrusions, may also prove
to be an important challenge. The patent issues, by contrast, appear fairly
minor.
Loane Skene et al.
"Neuroimaging and the Withdrawal of Life-Sustaining Treatment from
Patients in Vegetative State." [see here]
Abstract:
In a recent English case before the Family Division of the
English High Court, the Official Solicitor objected to the withdrawal of
treatment from a patient diagnosed as being in vegetative state (VS) despite
agreement between the NHS Trust and the patient’s family that treatment should
be withdrawn: An NHS Trust v. J. One objection arose from the possibility, based
on a recent medical article, that a functional magnetic resonance imaging test
(fMRI, commonly called a brain scan) might indicate that the patient retained a
degree of consciousness. This seems to be the first objection of this kind and
in this case, after a short time, the Official Solicitor agreed with the family
and the Trust that treatment should be withdrawn without performing fMRI.
However, all cases involving the withdrawal of life-sustaining treatment from
patients in VS must come before a court (now the Court of Protection) and the
issue is likely to be raised again. Indeed, given the significant advances in
neuroimaging studies of VS since 2006, and probable further scientific progress
in the near future, questions about the legal significance of fMRI are likely
to become increasingly important.
This paper assesses the possible effects on decision making about the
withdrawal of life-sustaining treatment if fMRI suggests that a patient in VS
has some level of consciousness. It focuses on the principles set out in the
Mental Capacity Act 2005 (UK) (which has come into force since the case
mentioned above), the Mental Capacity Act Code of Practice (CoP) and the common
law. Relevant legal factors include the patient’s wishes expressed in an ‘advance
decision to refuse medical treatment’ under the Act, decisions by a donee of a
lasting power of attorney appointed under the Act, both of which are binding
under the Act if they apply in the circumstances; and, if there is no such
provision, the patient’s best interests, taking account of the patient’s wishes
inferred from general evidence and the futility of continuing treatment.
Current research suggests that neuroimaging will at most establish that some
patients diagnosed as being in VS are in fact in a condition that clinicians
describe as a ‘minimally conscious state’ (MCS). The patients reported to date
have not recovered beyond that state and, indeed, may revert to VS. However,
applications for fMRI when judicial approval is sought from the Court of
Protection to withdraw treatment from patients in VS may delay the process and
raise issues for the Court in assessing the relevance of fMRI to the patient’s
interests. This paper outlines legal principles relevant to judicial review and
discusses underlying philosophical issues, including the limited availability
of resources for health care.
Fred Schauer, "Neuroscience, Lie-Detection, and the Law."
Abstract:
The possibility of using
neuroimaging to detect deception in legal settings has generated widespread
resistance. Many neuroscientists insist the research is flawed science,
containing weaknesses of reliability (the degree of accuracy), external
validity (do laboratory results predict real-world outcomes), and construct
validity (do studies test what they purport to test). These flaws are real, but
although using neural lie-detection in non-experimental legal settings is
premature, the critics are mistaken in believing that scientific standards
should determine when these methods are ready for legal use. Law's goals differ
from science's, and the legal suitability of neural lie-detection depends on
legal standards and not those determining what good science is.
Ravelingien et al. "Cosmetic Neurology and the Moral Complicity
Argument."
Abstract:
Over the past decades, mood
enhancement effects of various drugs and neuromodulation technologies have been
proclaimed. If one day highly effective methods for significantly altering and
elevating one’s mood are available, it is conceivable that the demand for them
will be considerable. One urgent concern will then be what role physicians
should play in providing such services. The concern can be extended from
literature on controversial demands for aesthetic surgery. According to
Margaret Little, physicians should be aware that certain aesthetic enhancement
requests reflect immoral social norms and ideals. By granting such requests,
she argues, doctors render themselves complicit to a collective ‘evil’. In this
paper, we wish to question the extent to which physicians, psychiatrists and/or
neurosurgeons should play a role as ‘moral gatekeepers’ in dealing with suspect
demands and norms underlying potential desires to alter one’s mood or
character. We investigate and discuss the nature and limits of physician
responsibilities in reference to various hypothetical and intuitively
problematic mood enhancement requests.
As always, Happy Reading!
