Recap of the 12th Annual Colloquium (Part 2)

Contributed by Darena Muça

On February 8, the McGill Journal of Law and Health welcomed four fantastic and engaging speakers to our 12th annual colloquium titled “Neurolaw: Combining the Science of the Brain and the Law.” Following is a brief summary of the latter two speaker’s presentations.  A summary of the first two presentations is available here.

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William Wannyn

William Wannyn is a member of the centre interuniversitaire de recherche sur la science et la technologie (CIRST). He holds a PhD from Université de Montréal on the topic of neurolaw. His doctoral thesis focused on the intersection of neuroscience and the law, particularly involving brain scans as evidence in criminal cases within the United States. Dr Wannyn was interested in what science had to say about traumatic brain injuries in civil cases and how neurolaw has evolved as a scholarly topic. His lecture at the Colloquium was dedicated to how the United States deals with questions of youth justice.

Studies demonstrate that there is an increase in neuroscientific evidence in courts; nevertheless, they are always used in combination with other forms of evidence, such as testimonies and psychological analyses. Neuro imaging is the least used form of evidence, with a 15% usage rate. Amongst neuroscientific technologies, fMRI is the least used, since getting experts to testify in court is expensive. Unfortunately, neuroscientific evidence has a double-edged sword effect because it can be used by the defense as a mitigating factor but can also be used by the prosecution as an aggravating factor. However, as Dr. Wannyn puts it, “what truly matters in the eye of the law is action. In other words, what people do in the eyes of law, not what their brains look like.”

Considering US Supreme Court decisions such as Roper (2005), Graham (2010) and Montgomery (2016), legal defenses for juveniles who committed criminal acts emphasize brain immaturity. Indeed, the central argument in such cases is how the brain is incapable of regulating itself and youths are prone to aroused senses, so they adopt risky behaviours. Dr Wannyn explained the historic development of how the US system deals with youth justice. The main premise is that due to their age and ongoing brain development, adolescents are biologically different from adults; thus, they should be treated differently within the criminal justice system. In the United States, youth crime and violence became politicized and gained a lot of media traction. Tough on crime legislation was adopted and young people were charged in adult courts where they were sentenced with mandatory minimums. At the end of the 1990s, academics started thinking about how to prove that youth were different than adults. Then, in the 2000s, neuroscientists gained knowledge about adolescent brains increased connectivity and tremendous change, which confirmed that the adolescent brain is still growing biologically. Since the brain is malleable, they argued, youth sentences should involve rehabilitation instead of harsh punishment.

However, these discoveries about adolescent brains leave many questions unanswered when it comes to the law. For example, what does it mean to say that on average the adolescent brain is different than that of adults? What is an average adolescent, let alone what is an average brain and what does it look like? While brain imaging can show us the larger trends in brain development, we are still far from being able to use an individual brain scan to determine the exact maturity level of an adolescent offender’s brain.

 Daniel Ambrosini

Daniel Ambrosini was the founding Co-Editor-in-Chief of the McGill Journal of Law and Health. He teaches at McMaster University in the Department of Psychiatry and Behavioural Neurosciences. Moreover, he serves as legal counsel in the Forensic Psychiatry Program at St. Joseph’s Healthcare Hamilton.

Dr Ambrosini’s lecture during the Colloquium focused on the different states of mind within the penal code, and what role neurolaw plays as evidence in distinguishing states of mind. To start, he explained the four states of mind in the US model penal code (PRKN): Purposeful, Recklessness, Knowledgeable, Negligent. Under Canadian Law, state of mind is referred to in section 16 of the Criminal Code, as well as section 4(1) of the Health Care Consent Act. Moreover, the Montreal Cognitive Assessment scale (MoCA) assesses mental states of peoples. Scores from this psychometric test range from zero to 30; where extremely low numbers signal mental impairment.

Dr Ambrosini then referenced a study from 2017, which found that brain scans can reveal different areas of brain activity, specifically the knowledge and recklessness categories. However, he asked, what happens when you reveal brain scans to judges, and how can this evidence be admissible in court? In the United States, for instance, the Frye Test determines the admissibility of scientific evidence. Essentially, such evidence must be relevant and verifiable. In Canada, the Mohan Test establishes the admissibility of expert evidence, based on four criteria. The evidence must be relevant, necessary in assisting the facts, not fall under any exclusionary rule and given by a properly qualified expert. This raises questions regarding the role of finder of fact. What is the purpose of scientific evidence, and has the evidence encroached on the domain of the finder of fact? In other words, the inclusion of these highly technical brain scans in evidence raises the question of what weight scientific evidence has from a legal perspective.

Overall, when neuroscientific evidence is being introduced, its application has different purposes; consequently different questions should be asked based on the purpose of such evidence. Dr Ambrosini shares seven criteria which help us understand the fundamental issue of the purpose of scientific evidence: he asks whether such evidence is used to “butter”, to detect, to sort through, to challenge an assumption, to intervene, to explain or to predict.

Recap of the 12th Annual Colloquium (Part 1)

Contributed by Annelise Harnanan

On February 8, the McGill Journal of Law and Health welcomed four fantastic and engaging speakers to our 12th annual colloquium titled “Neurolaw: Combining the Science of the Brain and the Law.” Following is a brief summary of the first two speaker’s presentations.

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Fernanda Pérez-Gay Juarez

Dr Juarez commenced the colloquium with a presentation entitled “Brain Science and the Law: Can Neuroimaging Techniques Tell Us What We Want to Know in Court?”. Her presentation provided an excellent summary of what we can learn from emerging neuroscience techniques. She noted that many people were becoming excited about these techniques because of a hope that they would provide insight into exactly what is going on in the brain at any given point in time. This could be especially useful in many criminal law cases, where some crimes are more severely punished than other’s depending on the mental state of accused. She noted that cognitive neuroscience especially has been the source of great excitement. Cognitive neuroscience is a behavioural branch of neuroscience, in which researchers attempt to study how matter, such as molecules, can give rise to the non-objective phenomenon that is the mind.

Dr Juarez provided a brief summary on some current functional neuroimaging techniques, which allow us to gain some insight into what is going on in the brain as we do various tasks. These include the EEG (Electroencephalogram), fMRI (functional magnetic resonance imaging), and PET (Position Emission Tomography)/ CT (Computed Tomography) scans. Dr Juarez noted that these techniques require pertinent, well-designed research questions. Researchers have to consider what task they will give to the subject and how they will measure what they see. Furthermore, conclusions are based on averaging across multiple participants; studies with few participants will not be very conclusive. She also observed that none of these techniques can actually give access to the content of what is actually going on in a subject’s head.

Dr Juarez then explored the debate over what neuroscience can tell us. She used the case of free will to demonstrate this debate. Specifically, she talked about the Libet Experiment, in which researcher Benjamin Libet measured the EEG activity of subjects who were deciding when to push a button. He found that EEG activity was occurring before the subject had made the conscious decision to act. Some people took this as an indication that there is no such thing as free will because the subject experienced brain activity associated with the selection of the button before having the opportunity to consciously decide what they were doing. Some, however, said that the occurrence of this brain activity prior to a conscious decision did not necessarily indicate the absence of free will. Others critiqued the conclusion that there is no free will by noting real life involves far more complex decision making than simply whether or not to push a button. Dr Juarez concluded her presentation by stating that neuroimaging techniques cannot tell us what we want to know in court. We are not able to use neuroscience to read the cognitive states and intentions of persons of interests. We cannot access the content of their mind or understand how they feel when they commit crimes. The brain is complex, and interactions between the brain, mind, culture, and society are multi-dimensional phenomena.

Adrian Thorogood

Next, Me Adrian Thorogood gave his presentation titled “Involving Persons with Dementia in Data-Driven Neuroscience”. Me Thorogood’s presentation focused on two neurodegenerative diseases: dementia and Alzheimer’s disease. He noted that there are two levels of societal responses: at the narrow level, society is working to invent treatment; at the broader level, society must consider how to better support caretakers and provide appropriate healthcare. Unfortunately, however, research in the context of these diseases is not very successful: clinical trials have a 99.6% failure rate.

Me Thorogood proceeded by explaining why we are currently facing these difficulties in moving towards a cure for these neurodegenerative diseases. Firstly, the brain is incredibly complex and notoriously hard to inspect. Secondly, on the science policy side, there are some issues surrounding innovation. Because this area has the potential to have a huge impact and generate large amounts of profit, there is a large amount of secrecy surrounding research. Whatever the solution is, many researchers and industry players hope that they will own the patent on that molecule. This, in turn, creates transactional problems where researchers patent and keep their work secretly, which requires subsequent researchers adding to that work to acquire a license to do so. Because of this, research in the field is moving at a slow pace.

Me Thorogood observed that much of the scientific world believes that big data can be a solution for this problem. Data sharing, he observed, enables us to rapidly verify and refine results and to do larger scale, meta analyses. Data sharing also allows for opportunities for creative reuse of data. Additionally, many are pushing towards more transparent clinical trials. This involves the registration and reporting of clinical trial results even if these results are not positive. These solutions, however, do collide somewhat with the current push towards more stringent data governance. With the use and sharing of data, one important thing to remember is the need for patient consent. This brings us to the next consideration – what is the best way to get the consent of persons with dementia and Alzheimer’s disease? These diseases are associated with diminished mental capacity, making it hard to get legal consent.

Me Thorogood then provided recommendations for data-driven health research. An important pillar of research is consent and the need to protect vulnerable persons. In this regard, researchers should assume that all adults have the capacity to make legal decisions, instead of jumping to the conclusion that someone with dementia can no longer consent. Persons with dementia and Alzheimer’s have varying levels of mental capacity. Persons should only be treated as not capable to make decisions if it has been confirmed that they lack capacity. Furthermore, the law should be clearer on who can substitute consent. Me Thorogood also highlighted the importance of supported decision-making, in which persons with these diseases are given the support to help them make their own decisions, instead of having another person make decisions for them. When persons do lack legal capacity to make decisions, they should still be at least involved in the decisions being made about themselves. Lastly, it is important for legally authorized representatives to abide by certain rules when making a decision for an individual with a neurodegenerative disease. They should do everything they can to understand the person, involve them, and rely on autonomous expressions that they have recorded or expressed in the past, which involves advanced health care planning and directives. In the context of neurodegenerative disease, issues of the “self” come up. Is there one “self”, or more? How do you reconcile the desires of an individual with dementia today, with what they said they wanted in the past? There is no easy solution, Me Thorogood concluded, but health care personnel and legal representatives must do their best to understand and interpret the wills and preferences of individuals with neurodegenerative disease.

Summaries of the final two presentations are available here.

Will Canadians Benefit from the Revolutionary Gene Editing Tool CRISPR-Cas9?

Contributed by Anita Sengupta

Introduction

Recent technological developments in the field of genetics have revolutionized biomedical research in ways we could not have imagined even a decade ago. In 2003, the Human Genome Project mapped out the full sequence of the human genome. In 2011, scientists developed a gene-editing tool called Clustered Regularly Interspaced Short Palindromic Repeats (CRISPR-Cas9) that can be used to directly manipulate plant, animal and human genes. Together, the human genome blueprint and CRISPR-Cas9 promise to revolutionize the treatment of both hereditary and other diseases, such as cancers, cystic fibrosis and AIDS. It also opens up the possibility of using organs from different species in human transplantations and removing allergens from peanuts.

Despite such great promise, ethical and social concerns over gene editing have restricted the use of CRISPR-Cas9 in Canada. Canada has some of the most restrictive gene editing laws in the world, where gene editing on inheritable genes is a criminal offense, punishable by up to 10 years in prison. In this article, I will consider what effect Canada’s strict gene editing laws have on scientific and medical progress in Canada and explore the potential beneficial and nefarious uses of the gene editing tool CRISPR-Cas9. Continue reading “Will Canadians Benefit from the Revolutionary Gene Editing Tool CRISPR-Cas9?”