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.
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 others 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.
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.