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.

Access to Care and the Constitutionalization of the Right to Health

access to care and the constitutionalization of the right to health

We are pleased to announce the 11th annual MJLH Colloquium on Access to Care and the Constitutionalization of the Right to Health

The McGill Journal of Law and Health (MJLH) is pleased to present its eleventh annual Colloquium, titled Access to Care & The Constitutionalization of the Right to Health. The aim of this bilingual and student-based initiative is to foster interdisciplinary dialogue on issues that lie at the intersection of health and law. Students and professionals from all fields are welcome to attend.

The Colloquium’s discussion will be divided into two panels. The first panel will provide an overview of the challenges in access to care faced by marginalized groups and will engage in a discussion on the lack of protection offered by the law for the reception of services. The second will focus more specifically on the path towards the entrenchment of the right to health in the Constitution of Canada. Although the question has been previously discussed by numerous scholars, recent developments in health policy, such as discussions on the introduction of PharmaCare have reignited this constitutional debate.

This year’s list of speakers includes legal experts, medical professionals, and academics from across the country. Stay tuned for more information on the specific speakers list!

Breakfast and lunch will be provided.

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La Revue de droit et de la santé de McGill est heureuse de présenter son onzième colloque annuel, intitulé L’Accès aux soins et la constitutionnalisation du droit à la santé. Le but de cette initiative bilingue est de favoriser le dialogue interdisciplinaire sur des questions qui se trouvent à l’intersection du droit et de la santé. Les étudiants et les professionnels de tous les domaines sont les bienvenus.

La discussion du colloque sera divisée en deux panels. Le premier panel donnera un aperçu des difficultés d’accès aux soins rencontrées par les groupes marginalisés et abordera le manque de protection offerte par la loi pour assurer la réception des services. Le second panel portera spécifiquement sur le processus qui mène à l’enracinement du droit à la santé dans la Constitution du Canada. Bien que de nombreux spécialistes aient déjà abordé la question, les développements récents en matière de politique de la santé, tels que les discussions sur l’introduction de PharmaCare, ont ravivé ce débat constitutionnel.

La liste des conférenciers de cette année comprend des experts juridiques, des professionnels de la santé et des universitaires d’à travers le Canada. Restez à l’écoute pour plus d’informations sur la liste des conférenciers!

Le petit déjeuner et le déjeuner seront fournis.

Please RSVP to this event HERE.

Recap of Changing the Face of Health Care through Artificial Intelligence: Emerging Ethical and Legal Debates

On February 3rd 2018, the McGill Journal of Law and Health held its 10th annual colloquium entitled Changing the Face of Health Care through Artificial Intelligence: Emerging Ethical and Legal Debates. This year’s edition was particularly topical considering Montreal’s growing presence on the international artificial intelligence (AI) scene. A variety of lawyers, physicians, computer scientists, as well as law and medical students attended the event. The event’s program included two expert panel discussions: one meant to give an overview of the development of artificial intelligence technologies, and one meant to provide an idea of the road towards a regulatory framework on artificial intelligence, particularly in the field of the right to health in Canada.

Panel 1: An Overview of the Development of Artificial Intelligence Technologies

Contributed by Catherine Labasi-Sammartino

The first panel was composed of Dr. Jonathan Kanevsky, a final year resident in Plastic and Reconstructive Surgery at McGill who has developed several medical devices to improve therapy for skin cancer and scaring; Christelle Papineau, a PhD candidate in the international thesis program established between Paris University Panthéon-Sorbonne and the University of Montreal who’s research focuses on the interactions between law and artificial intelligence with a comparative perspective between Europe and North America; and Me. Antoine Guilman, a current lawyer at Fasken and member of the national group of Information and privacy protection who holds a PhD in Information Technology law from the University of Montreal and the Paris University Panthéon-Sorbonne.

Image1 Panel 1 speakers, from left to right: Dr. Jonathan Kanevsky, Christelle Papineau, and Me. Antoine Guilman 

Dr. Kanevsky started the panel off with a discussion on the potential of AI in health care, which he demonstrated by sharing examples of AI excelling in pattern recognition tasks, such as tumour detection in human biopsies. To create advancement in health care, it is important to recognize that some skills, such as pattern recognition, are not only human skills. This shift is similar to the one that took place when the recognition that the human mind could not possibly retain all the required information to treat patients put forward the idea that doctors should be using a data base to keep medical records. Dr. Kanevsky provided his audience with several insights about what AI can do in health care. These included classification (i.e., identify cancer types), prediction (i.e., make predictions based on physical appearance), and diagnosis (i.e., detect cancer cells).

Dr. Kanevsky also addressed the ethical challenges raised by the use of AI. Is AI good or bad? All three speakers jumped in to answer this question. Christelle Papineau brought up current studies on an algorithm’s potential (e.g., the Compass and LSI-R algorithm) to determine the appropriate sentence in criminal offence cases to illustrate AI’s potential role on our legal system and its associated risks. She stressed the value of human involvement in legal decision-making and the social responsibility AI innovators had to not delegate an irresponsible part of the cognitive processing required in legal settings to AI. Dr. Kanevsky echoed these concerns and left the audience with a rhetorical question regarding AI’s role in removing a scientist’s thought process.

Me. Guilman brought up issues surrounding the anonymization of personal information, such as doubts regarding its effectiveness and reliability. Furthermore, he explained the current trend of increasing the amount of data collected, without discriminating according to data type, and how it has created a series of challenges for the lawyers and business owners working according to the current Canadian laws on data protection. These laws are widely recognized as being out of touch with recent technological changes and have left the legal community with a variety of wide interpretations.

Overall, the first panel succeeded in bringing the audience to reflect on what AI to the legal and health care fields, while stressing the need for a continued responsible attitude towards its implementation. For all of the speakers, this responsibility translated itself in always having the possibility to include human interaction in when relying on AI decision-making. The importance of sensitising and sharing information with the general population regarding AI’s growing presence, in events such as the MJLH colloquium, were acknowledged as being effective tools to promote the responsible use of AI.

Panel 2: Road Towards a Regulatory Framework for Artificial Intelligence

Contributed by Handi Xu

Nicole Mardis is a Project Officer for the CIHR Institute of Health Services and Policy Research and a PhD Candidate at McGill University with specializations in medical sociology and industrial relations. Mardis began her talk by explaining that artificial intelligence signifies new patterns of human-computer interaction at the programming level that are expected to: expand the scope of activity that can be augmented by technology, accelerate algorithm development, and generate more independent machines. While traditional programming involves step by step problem-solving based on hard coded rules, AI consists of machines learning from data and examples, which puts less burden on programmers to embed all relevant context and meaning in the instructions that they write for computers.

While the productive potential of AI is still not fully understood, comparisons are often made to the Industrial Revolution. It is important to note that the mechanization and centralization of production that occurred during the Industrial Revolution gave rise to major productivity gains, but these gains were distributed in such a fashion that large segments of the population saw their material well-being and quality of life initially decrease.

Image2 Panel 2 speakers, from left to right: Christelle Papineau (moderator), Nicole Mardis, Dr. Frank Rudzicz, and Me. Marie Hirtle 

The Digital Revolution appears to be following a different pattern: information technology has diffused widely and costs have fallen, but productivity gains are hard to locate. Will the AI Revolution change this? What we do know is that more R&D is needed to make AI mainstream, and we should be particularly mindful of what data/examples are used to drive this activity. Health care providers (e.g., hospitals, clinics, and governments) now house very rich sources of population-based clinical and social data that could be used for AI. In partnership with these entities, research funders such as the Canadian Institutes of Health Research are investing in platforms and services to make this data available to university and hospital-based researchers. Yet, because AI cuts across many different fields of research and is driven in large part by industry, governments and other research funders will have to think more strategically about how public data assets are used to shape the trajectory of AI, as well as how they structure partnerships to maximize social and economic benefits for citizens.

Dr. Frank Rudzicz is a scientist at the Toronto Rehabilitation Institute (University Health Network), an assistant professor of Computer Science at the University of Toronto, co-founder and President of WinterLight Labs Inc., faculty member at the Vector Institute, and President of the international joint ACL/ISCA special interest group on Speech and Language Processing for Assistive Technologies. Dr. Rudzicz talked about the importance of using AI and software tools for medical diagnosis in the health care system in an ethical manner.

Current trends in AI research involve deep neural networks, big (interlinked) data, recurrent neural networks for temporal/dynamic data, reinforcement learning, active learning, telehealth and remote monitoring as well as causal/explainable models. Reinforcement learning consists of systems learning ‘online’ by taking imperfect observations, inferring the unseen state, then taking an action. This type of learning necessitates some exploration, where rewards and costs are usually supplied by humans. Active learning, which involves doctors using AI to determine a person’s disease, is efficient, but also risks putting doctors in a feedback loop and creating a blind reliance on AI. Neural networks learn to associate input features with output categories, but there is no abstract logic or interpretable reasoning to those associations; correlation is not causation, meaning that one usually cannot tell why or how a neural network made a decision, which is problematic when it comes to assigning responsibility.

Humans are notoriously bad with information: patients misread or miscommunicate their symptoms while doctors make diagnostic errors. A study by Bennett and Hauser (2013), which compared patient outcomes between doctors and sequential decision-making algorithms, concluded that AI technology was not only less costly, but also led to 50% better outcomes. Clinical doctors prescribe medication after informing patients of its benefits and side-effects. However, the AI doctor prescribes medication, partially, as an experiment, which allows it to directly and continuously learn from the outcomes, making it difficult to determine which set of ethics apply. Current regulatory frameworks will face ethical challenges, and will certainty need to adapt to the rise of AI, but most importantly, they need to continue to respect individual rights.

Marie Hirtle is a lawyer with a background in ethics and specialization in health issues ranging from community-based health and social services, to tertiary and quaternary care, biomedical research, and public health. She is currently Manager of the Centre for Applied Ethics at the McGill University Health Centre (MUHC), where she leads a team of professional ethicists who provide clinical, organizational, and research ethics services to the MUHC community. Using the example of the artificial pancreas, Face2Gene and Big Data, Me. Hirtle discussed regulatory issues raised by different applications of AI in health care settings. The artificial pancreas uses an insulin pump, a continuous glucose sensor, and a control algorithm to help patients with diabetes, but the dosing algorithm is self-learning, which is difficult to regulate. Face2Gene is an application which collects personal health information, such as photographs of faces of babies, to facilitate the detection of facial dysmorphic features and recognizable patterns of human malformations, while referencing comprehensive and up-to-date genetic information. It uses advanced technologies including computer vision, deep learning, and other AI algorithms to analyze patient symptoms, features, and genomic data. Face2Gene allows labs to interpret genetic information more accurately, thus helping clinicians diagnose rare diseases earlier on.

Me. Hirtle also discussed the legal issues associated with Big Data. Currently, Big Data is being collected, stored, used and disclosed, either when individuals consent or when the law explicitly allows it. Although obtaining individual consent is desirable, it can be impracticable. Individuals often click on “I agree” without reading the terms and conditions, therefore not knowing what they are consenting to. Furthermore, even though the law allows the use of non-identifiable data, the re-identification of these data is technically possible, which could potentially infringe on the right to privacy.

Overall, the second panel of the event drew the audience’s attention to the uncertain future of AI and the need to develop appropriate legal and regulatory frameworks to ensure that the benefits of AI can be harnessed while tempering the risks.

Changing the Face of Health Care through Artificial Intelligence: Emerging Ethical and Legal Debates

The McGill Journal of Law and Health is pleased to invite you to attend its 10th annual Colloquium: Changing the Face of Health Care through Artificial Intelligence: Emerging Ethical and Legal Debates. The aim of this bilingual and student-based initiative is to foster interdisciplinary dialogue on issues that lie at the intersection of health and law. It is our hope that such dialogue will have a positive influence on health and social policy-making in Canada.

La discussion sera divisée en deux tables rondes. La première table ronde donnera un aperçu du développement des technologies d’intelligence artificielle et discutera des défis éthiques que posent les nouvelles possibilités de soins de santé. La seconde portera plus particulièrement sur le chemin vers un cadre réglementaire de l’intelligence artificielle dans le domaine du droit de la santé au Canada.

*Un dîner et des collations seront servis*

This year’s event will feature some big names in the artificial intelligence field including: Christelle Papineau, Daniel Weinstock, Frank Rudzicz, Nicole Mardis, Antoine Guilmain, and Jonathan Kanevsky.

The event is wheelchair/stroller-accessible and the MJLH is happy to welcome all those with children! If you have any dietary restrictions, or any particular arrangements need to be made, please feel free to contact manager.mjlh@mail.mcgill.ca.

Please RSVP to the event HERE.
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