Surgical Neurology
Volume 69, Issue 1 , Pages 99-101, January 2008

Neuroscience and the law

Division of Neurological Surgery, Barrow Neurological Institute, St. Joseph's Hospital and Medical Center, Phoenix, Arizona

Faculty Associate (Adjunct), Sandra Day O'Connor School of Law, Arizona State University, Tempe, Arizona

Article Outline

 

At first glance, as far as neurosurgeons are concerned, it might not seem that the law and neuroscience have much to do with each other beyond medical malpractice and regulatory laws such as the Stark laws and the Emergency Medical Treatment and Active Labor Act. The reality is that in recent years, neuroscience and the law have had a profound impact on one another. On the one hand, neuroscience discoveries have helped change existing legal doctrines (eg, the constitutional definition of cruel and unusual punishment for juveniles and individuals with mental retardation) and may challenge many others. Further, scientific discoveries and technical advances in neuroscience (eg, neural implantation) have attracted heightened legal scrutiny and, in some cases (eg, in stem cell research), regulation.

Recently, there has been increased interest among neurosurgeons in the development of brain-computer interface (BCI) technology [9] as well as resurgent interest in psychosurgery using deep brain stimulator implants [6]. The impending development and application of these technologies have led some voices to express alarm. Perhaps the most notable is a lead article in the Economist that was published in 2002 in which many of the most problematic aspects of these emerging technologies were emphasized [2]. In fact, over the past few years, a burgeoning field—variously termed neuroethics or neurolaw—has developed to explore many of these questions. Unfortunately, neurosurgeons have been completely absent from this discussion.

The key realization for neurosurgeons is that in contradistinction to psychosurgery as promulgated in the middle of the 20th century, the development of the next generation of psychosurgery and related procedures will be fueled by demand from outside of the profession—by the public, by industry, and possibly even by the courts. Neurosurgery as a profession needs to assert itself to establish the appropriate boundaries for such interventions.

In this article, I briefly survey some of the main areas of debate in neurolaw with an emphasis on areas that are likely to be of interest to neurosurgeons and neurologists, including neurologic notions of life and death, the effect of neuroscience discoveries on criminal responsibility, and the potential development of neurosurgical procedures for functional “enhancement.”

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1. The neurologic definitions of life and death 

One area of neurolaw that all neurosurgeons are well acquainted with is the brain death standard for the determination of death. Brain death controverted centuries of established legal doctrine regarding the definition of death and heralded a trend among ethicists and lawyers to define life itself in neurologic terms. The doctrine of brain death has forced courts and ethicists to address not only “whole” brain death but also those states less severe than brain death, such as persistent vegetative and minimally conscious states and anencephaly. During this process, courts are asked to balance quality of life against quantity of life, whether there is any prognosis for recovery, and how high the standard for futile treatment ought to be.

The visceral importance of this debate was evidenced by the national attention given to the fate of Terry Schiavo. Although Ms Schiavo was not brain dead, the legal questions that dictated her ultimate fate centered on her level of neurologic functioning. Specifically, the court was put in the position of evaluating expert evidence as to what her level of function was and on whether there was any prospect of improvement [13]. In doing so, the court was obliged to rely heavily on expert opinion, including evidence, for example, that was centered on the relative merits of hyperbaric oxygen therapy for the recovery of language. The significance of these questions reaches beyond the particular circumstances of Ms Schiavo because the uncertainty inherent in this process may increase the neurosurgeon's exposure to civil or even criminal liability when withdrawing care or in determining the futility of further end-of-life care.

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2. The problem of determinism in criminal law 

In general, conclusions reached by behavioral neuroscientists are implicitly based on the validity of the application of mechanistic or reductionist approaches to human behavior; that is, that human thought and action may in some sense be determined by the biological characteristics of the underlying brain. It is this problem of “free will vs determinism,” particularly in criminal contexts, that is at the heart of much of the debate about neuroscience and the law.

As neurosurgeons, we are accustomed to cause and effect as applied to human behavior (eg, we routinely attribute behavioral changes in a patient to a frontal tumor, anterior communicating artery aneurysm, subarachnoid hemorrhage, or stroke, among others) However, this cause-effect relation is much more problematic in a court of law. In general, the law does not have a very developed or nuanced approach for “determined” human behaviors or for physiologic influences on human behavior/decision making (whatever those might be). Rather, the law assumes that will is unconstrained or “free” and that people are rational actors (ie, will act reasonably). Those who do not act rationally (eg, those with insanity) may be excused from criminal liability [12]. When an action is unconscious or “determined,” such as that which occurs as a result of a reflex or seizure, established doctrine in criminal law excuses a defendant from all criminal culpability.

Although criminal law doctrine recognizes that culpability is greater where action is taken freely and with understanding of consequences, there is no established provision in the law for actions that are undertaken under the influence of organic brain conditions, such as a stroke, a tumor, and the like (in which such a condition does not rise to the level of “insanity”). This is in spite of the fact, well known to neurosurgeons and neurologists, that brain injury can affect human behavior in a multitude of ways. Practically speaking, the biggest problem has been how to prove causation; that is, that a given act was not a free choice but rather caused by an underlying organic disorder. It seems inevitable that discoveries in neuroscience will provide more accurate mechanistic descriptions of human motivation and behavior that will be used to excuse or at least mitigate culpability.

Importantly, especially for neurosurgeons, neuroscience evidence may be a double-edged sword. That is, irrespective of the ability of a purely scientific argument for causation to provide sufficient grounds to excuse an action, it may be strong enough to merit the application of a therapeutic intervention. Already, courts may order therapeutic interventions without a patient's consent, such as electroconvulsive shock therapy [7], or may administer antipsychotic medications to render a defendant competent to stand trial [14]. Even surgical procedures, such as orchiectomy, may be enforced by courts as conditions of sentencing or of supervised release [15]. In addition, those accused of crimes may be indefinitely confined without demonstration of guilt if a court finds that they may not be able to control their future behavior by reason of a mental defect or abnormality [8].

It is foreseeable that in the near future, neurosurgical interventions, such as deep brain stimulation and surgical ablative treatments, may similarly be adopted by courts looking for a better means to rehabilitate criminals rather than to merely punish or isolate them. Indeed, as the case of orchiectomy for sexual predators demonstrates, there is no a priori reason why surgery could not be a component of criminal sentencing and/or parole. Functional neurosurgical targets for the treatment of addiction, including the nucleus accumbens and cingulate gyrus, have been reported in the neurosurgical literature by Chinese and Russian authors, respectively [4], [11]. In China, approximately 500 cases of bilateral ablation of the nucleus accumbens have been reported to have been performed for the treatment of addiction [1], and at least some of these patients may have had the procedure performed under the auspices of the Chinese justice system [10]. However, citing concerns about the efficacy and side effects of the procedure, both countries have discontinued the practice pending further research (Russia suspended the procedure in 2002, and China followed suit in 2004) [5]. In both cases, the suspension occurred not because of a priori ethical concerns but because the adoption of the technique outpaced their scientific validation. Should adequate controlled studies demonstrate a bona fide treatment effect, it is likely that such procedures will become more widely available.

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3. Dual-use technologies and surgical enhancement 

This final issue, that of the use of neural implants originally designed to restore function for other indications, may arise as an inadvertent consequence of the development of so-called BCI technology. BCI technology is a generic term for means to translate neurophysiologic phenomena, such as changes in frequency spectra of electroencephalographic recordings, into action (so-called output BCI) [9]. This is distinguished from devices such as auditory brainstem implants that provide alternative pathways for the input of data from the environment to the brain. Research in the development of BCI has been fueled by the National Institutes of Health and by the military.

Importantly, BCI technology may have significant dual-use potential (ie, the potential for surgical enhancement). Although results from microelectrode implantation have so far been disappointing as a result of the tendency of scar to form around chronically implanted electrodes, advances in long-term invasive BCI techniques seem inevitable [1]. Once a chronically implantable electrode that is demonstrated to be safe and durable, whether intended either as a prosthesis for patients with terminal amyotrophic lateral sclerosis or as a military application, is developed, the problem of potential off-label use will likely be immediate. Indeed, the idea that implants might be used for enhancement or even recreational use is not a novel one and will probably be greeted enthusiastically by some segments of the population (see, for example, the so-called transhumanist movement [3]). Naturally, the prospect of “enhancement” neurosurgery has significant ethical implications, including obtaining informed consent and reimbursement, among others. Surprisingly, neurosurgical participation in the delivery of such “enhancement” neurosurgery is nevertheless taken for granted by some authors.

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4. Prescription for the future 

The law and public policy are taking note of advances in neuroscience unlike ever before. The foundation for the decisions of policymakers and legislatures regarding the future of neuroscience is being laid right now. By not participating in the debate in its infancy, neurosurgeons risk reducing their future influence in the development of areas of some of the most promising areas of neurosurgical research. If this happens, the best that we might expect is to be in the position of simply reacting to the decision of others; at worst, to reduce our role to that of mere technicians.

Input from neurosurgeons is needed to prevent this from happening, particularly with regard to the identification of promising targets for therapy. Practically speaking, the most likely means of identifying new therapeutic targets will be derived from advances in noninvasive imaging modalities, such as positron emission tomography and functional magnetic resonance imaging. Further research into the mechanism of action of deep brain stimulation and its optimization for use in psychiatric procedures will also be required. Within academic settings, to be part of the team designing therapeutic approaches from the ground up, neurosurgeons could seek opportunities to collaborate with colleagues from specialties such as addiction medicine and psychiatry (who are identifying image-guided therapeutic targets). At the same time, given the ethical and legal implications, a true multidisciplinary approach with invited participation by the legal faculty would help clearly delineate the gray areas surrounding the legal and ethical ramifications of such a project.

Finally, we as neurosurgeons have a professional obligation to assert our opinion on matters that concern us and that might expose our profession to levels of scrutiny above and beyond those experienced before. Hence, organized neurosurgery, in the form of one or more of the major neurosurgical societies, ought to consider proactively stating appropriate standards and boundaries (eg, “enhancement” procedures) for the next generation of neurosurgical procedures.

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References 

  1. Anonymous . Brain surgery for drug addicts banned. China View April 18th, 2005. Available at http://news.xinhuanet.com/english/2005-04/18/content_2844433.htmaccessed on May 10, 2007
  2. Anonymous . Open your mind. The Economist. 2002;363(8274):77–79
  3. Bostrum N. In defense of posthuman dignity. Bioethics. 2005;19(3):202–214
  4. Gao G, Wang X, He S, Li W, Wang Q, Liang Q, et al. Clinical study for alleviating opiate drug psychological dependence by a method of ablating the nucleus accumbens with stereotactic surgery. Stereotact Funct Neurosurg. 2003;81:96–104
  5. Hall W. Stereotactic neurosurgical treatment of addiction: minimizing the chances of another ‘great and desperate cure’. Addiction. 2006;101:1–3
  6. Heller AC, Amar AP, Liu CY, Apuzzo MLJ. Surgery of the mind and mood: a mosaic of issues in time and evolution. Neurosurgery. 2006;59(4):720–739
  7. In Re Simone D. (2006 NYSlipOp 06574). Available at: http://www.courts.state.ny.us/reporter/3dseries/2006/2006_06574.htm, accessed May 10th, 2007.
  8. Kansas vs Hendricks, 51 U.S. 346 (1997).
  9. Leuthardt EC, Schalk G, Moran D, Ojemann JG. The emerging world of motor neuroprosthetics: a neurosurgical perspective. Neurosurgery. 2006;59(4):1–14
  10. Lozano A., personal communication.
  11. Medvedev SV, Anichkov AD, Poliakov Iu I. Physiological mechanisms of the effectiveness of bilateral stereotactic cingulotomy in treatment of strong psychological dependence in drug addiction. Fiziol Cheloveka. 2003;29:117–123
  12. Morse SJ. Craziness and criminal responsibility. Behav Sci Law. 1999;17:147–164
  13. Schiavo III. 800 So. 2d 640 (Fla. Dist. Ct. App. 2001) Oct. 17, 2001. Rehearing Denied Nov. 1 and Nov. 7, 2001.
  14. Sell v. U.S. 539 U.S. 166 (2002).
  15. Stone TH, Winslade WJ, Klugman CM. Sex offenders, sentencing laws and pharmaceutical treatment: a prescription for failure. Behav Sci Law. 2000;18:83–110

PII: S0090-3019(07)00958-5

doi:10.1016/j.surneu.2007.08.009

Surgical Neurology
Volume 69, Issue 1 , Pages 99-101, January 2008

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