Annabelle Belcher and Walter Sinnott-Armstrong, "Neurolaw."
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]
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]
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."
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."
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.
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