How Bright is the Line: Children, Natural Remedies and Consent to Care

Posted By Jonathan Adessky & Matthew Dankner

In a diverse society, one can reasonably expect a diversity of child-rearing practices. Whether motivated by culture, religion or skepticism towards Western medicine, some parents opt to treat their children with various “unconventional treatments”. In fact, in the United States, it was found that use of complementary and alternative medicine for children is growing. What are the boundaries within which natural treatment for children resides, from both a legal and a medical perspective? We propose that legal and medical practitioners alike ought to keep an open mind in dealing with natural treatments consented to on behalf of children, while maintaining a healthy dose of skepticism and recognizing the boundaries set by paternalistic state regulation.

Canadian Legal Perspective

The extent to which natural medicine can provide a legally permissible alternative is restricted by the paternalistic voice of the law. Statutory protections for children impose a duty of care on parents to act reasonably in consenting to medical treatment on behalf of their children, to the extent that a refusal of conventional treatment options can qualify as a criminal act, even where alternative treatment plans have been adopted and irrespective of their subjective intent. In the recently decided case of R v Lovett, a mother opted to use natural remedies to treat her seven-year-old son’s throat infection, resulting in his death.

Pursuant to s. 215(1)(a) of the Criminal Code, parents have an obligation to provide the necessities of life for their kids, a duty which Ms. Lovett failed to perform by failing to seek out proper treatment for her child. Further, in R v Naglik Lamer C.J. established that parent’s intent must be addressed through an objective test, given that “as in the law of civil negligence, a duty would be meaningless if every individual defined its content for him or herself according to his or her subjective beliefs and priorities”.

7015509987_1ec05e3a0b_zThe law sets a high bar for a parent’s duty to ensure their child’s well being. The withdrawal of consent to conventional treatment risks criminal action if the child suffers bodily harm as a result. || (Source: Alex Proimos // Flickr)

The criminal justice system can also hold a parent liable for criminal negligence resulting in bodily harm or death of the child. The court in Lovett makes the distinction that, while similar to s. 215, criminal negligence elevates the offence: the departure from reasonable conduct is “more than just “marked” but rather “marked and substantial””. Such a departure, as stated by the court in R v Tutton, gives rise to an inference that the parents had at least some awareness of the risks or were willfully blind to them. If convicted under this head of criminal liability, the parent can face life imprisonment, while a s. 215 conviction carries a maximum sentence of five years. The overarching theme of these cases is that the price to pay can prove rather steep for choosing to treat one’s child with natural remedies in the stead of conventional medicine.

However, it is critical to discern tolerated alternatives from criminal acts. Surely, resorting to natural treatment will not always deprive a child of the necessaries of life. In fact, natural remedies may well provide many benefits by reason of health, religion or otherwise. Our goal is to raise the important questions that parents ought to pose, as the correct answers to such questions are often context-dependent.

The Medical Perspective

Medical practice is moving away from a paternalistic doctor-patient relationship to one that empowers patients to actively participate in important decisions regarding their care. More and more, doctors are giving some deference to parents who reject conventional medicine and prefer to use natural remedies for their children, and for good reason: in many cases, such remedies do work in treating a variety of ailments.

For example, aspirin is derived from bark of the willow tree, since traditional users noted its effectiveness in relieving pain and fever. Many years of study validated this anecdotal evidence, while demonstrating that the benefits of taking aspirin to treat particular ailments outweighed any adverse effects. To this day, much of Western medicine’s therapeutic arsenal is derived from such natural products that have been proven satisfactorily safe and efficacious. In fact, natural medicine is considered a direct pipeline to science-based medicine, with natural remedies that demonstrate value in properly controlled studies being actively developed into commonly used medications by the pharmaceutical industry.

1309697775_b01082fa14_z.jpgConventional treatments and pharmaceuticals are often concentrated extracts of the active ingrediant in natural remedies, such as the anti-inflammatory effects derived from the bark of the willow tree. || (Source: stu // Flickr)

However, care must be taken with regard to the safety of natural products. Among many other examples of natural products causing harm, grapefruit interferes with the metabolism of many life-saving drugs, causing them to reach lethal doses in certain patients. This example supports the point of caution emphasized by doctors when communicating with their patients: “natural” does not always equate to &ldquoi;safe” or “harmless”, particularly if the proposed natural remedies have not been extensively tested in the context of the dose taken and their interactions with other drugs.

Keeping these points of caution in mind, untested natural remedies can play an important role in patient care if employed carefully. Many of these remedies have simply not yet been tested extensively and, if they were, would demonstrate clear benefits. However, the majority of these remedies likely would not demonstrate increased efficacy compared to a placebo. While this may discourage the use of such agents, the placebo effect is a true phenomenon and can lead to improvement in a subset of patients with certain conditions compared to taking nothing at all.

Overall, natural remedies have a role to play in modern medicine, including strengthening the doctor-patient relationship and spurring a placebo effect. This is particularly pertinent to patients of diverse cultural backgrounds or strong personal convictions that highly value natural remedies. However, caution must be taken with these remedies, given their unknown potential to interact with other medications, or even by certain patients desiring to withhold modern treatment from their children.

Aboriginal Rights Exceptions

The status rights of First Nations peoples in Canada are governed by s. 35 of the Constitution Act, 1982. In applying the test from R v Van der Peet, which characterizes an activity as an Aboriginal right if it was a practice integral to a Nation’s culture before European contact, Edward J in Hamilton Health Sciences Centre v. D.H. found that Aboriginal healing practices satisfy the test for protection under s.35 – not without controversy. For this reason, Makayla Sault’s mother was permitted to take her daughter off of conventional chemotherapy in favour of natural treatments despite a 75% chance of survival with the former. The child passed away, and her mother’s decision was considered perfectly legal.

As the Truth and Reconciliation Commission wrote, “the country [Canada] has a rare second chance to seize a lost opportunity for reconciliation”.

The question follows: does s. 35 confer upon First Nations parents an unrestricted right to select traditional treatment for their children? Peter Hogg says otherwise. The constitutional scholar points to R v Sparrow, in which the court states that Aboriginal rights are not absolute and measure up to a balancing test similar to s. 1 of the Constitution. If First Nations healing practices may be subject to infringement in exceptional circumstances, should the court then intervene in cases similar to Makayla’s? Before addressing that question, which is posed without a clear answer in reach, the deep-rooted, systemic discrimination that resulted from undermining integral aspects of First Nations cultures demands serious consideration. As the Truth and Reconciliation Commission wrote, “the country [Canada] has a rare second chance to seize a lost opportunity for reconciliation”. Therefore, we should take care not to dismiss certain practices as quaint or arcane.

Marking the Boundaries

Given the points raised above, how far is too far? While it is impossible to draw a bright line as a definitive answer, we can offer some guidance. Reconciling the legal and medical perspectives places natural medicines somewhere in between two polar ends: absolute illegality and unlimited endorsement. Doctors are keeping an open mind to natural remedies, which are medically valuable to certain extents. However, parents ought not to disregard conventional medicine. If a parent becomes aware of the necessity to provide conventional medicine to a child, be it by observing a deterioration in condition or from a medical professional’s evaluation, failure to do so can result in lengthy jail time.

For First Nations parents, the law may take a more culturally-sensitive position. However, Aboriginal rights are not absolute and may be infringed upon if that infringement is justified. Therefore, jurists, healthcare professionals, and lawmakers have to adhere to an approach of cultural sensitivity and respect for individual choice in the medical context, while recognizing that paternalistic state regulation is desirable in certain cases.

This article was co-authored by McGill University students Jonathan Adessky (B.C.L./LL.B. candidate, Faculty of Law) and Matthew Dankner (M.D., C.M., and PhD. candidate, Faculty of Medicine).

9th Annual MJLH Colloquium in Review: Indigenous Health and Access to Medicines in Canada

Posted By Chris Laliberté

On Saturday, February 11th, the McGill Journal of Law and Health hosted its ninth annual Colloquium Event. Held in the Moot Court, the event titled “Access and Equity: Indigenous Health and Law in Canada” featured two panels of experts and activists who regularly engage with First Nations peoples and the challenges they face accessing healthcare in Canada.

The morning panel featured Dr. Cindy Blackstock, PhD, Professor Larry Chartrand, and Dr. Janet Smylie, MD, MPH. The discussion centred on the systemic and social barriers to equitable healthcare for First Nations peoples.

Dr. Blackstock discussed the dissonance between the Crown’s spoken intentions to provide aid to First Nations communities and the repeated use of technicalities to defeat cases before the court can address the merits. In particular, she cited an instance where the Ministry of Indian Affairs failed to provide emergency aid funding for suicide prevention programs because the requests came at an awkward time in the funding cycle. Of the $200M needed, only one third – $60.38M – made it to the communities in desperate need of help.

“If it’s not good enough for the Canadian Human Rights Tribunal, why is it good enough for you?” –Dr. Cindy Blackstock on Parliament’s excuses for inaction on First Nations issues

Next, Prof. Larry Chartrand offered a critical perspective on Hamilton Health Sciences Centre v. D.H., clarifying the contentious points as regards the application of s. 35 Aboriginal Rights. Chartrand argued that Western interpretations and applications of the law tend to ignore the collective nature of Aboriginal Rights so as to threaten their independence and render them meaningless. In fact, the imposition of Western notions of the “best interests of the child” inherently denies the sovereignty of First Nations peoples and the principles of First Nations law—such as the Haudenausonee nation’s core tenet to act in the best interests of their children. In the spirit of reconciliation, Chartrand asked neither agreement or even endorsement, only understanding, trust, and respect for First Nations peoples’ self-determination in healthcare.

Dr. Janet Smylie, as a practicing physician, recounted her first-hand experiences with the injuries and deaths suffered by First Nations patients due to negligence motivated by racist assumptions among hospital staff. Smylie emphasized the need for intersectional approaches to law and healthcare, pointing to systemic, epistemic, and attitudinal racism as predominant barriers to the equitable provision of health services. She cited the tragic Brian Sinclair case and the demonstrable failure to provide emergency interventions for First Nations patients as examples of death by discrimination. To combat the underlying prejudicial effects of colonialism on the health of First Nations peoples, hospitals and staff in Canada must implement anti-racist training and practices to account for unconscious bias and provide more equitable care.

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After a short lunch, the afternoon panel featured Mr. Normand D’Aaragon, Dr. Christopher Lalonde, PhD, and Dr. Ronald Niezen, PhD. The discussion centred on the causal relationships underlying the high rates of suicide among many First Nations communities, and means of addressing this crisis.

Mr. Normand D’Aragon opened the afternoon with a discussion of his work helping First Nations families heal the wounds of intergenerational trauma due to a history of colonial violence and oppression. D’Aragon relayed his experiences working with two families. The first family, he said, had lost their eldest son to suicide, and feared for the well-being of their second. He traced their family’s story to the grandmother’s two brothers, who never returned from residential schools. Future sons in the family, he said, were deprived of their individuality as a result of the unresolved grief over the ancestral loss of life. Another case concerned a family in which a girl who attempted suicide had lost three cousins and an uncle to self-harm. D’Aragon traced this grief back to the trauma of the great grandparents, who lost five children in infancy due to toxic water on the reserve and neglectful treatment at the hospital.

Dr. Christopher Lalonde presented his team’s work quantifying the suicide crisis among First Nations communities so as to identify pain points and causation in an effort to direct and distribute interventions that will result in healing for the affected communities. Among other misrepresentations, Lalonde dispelled the implication conveyed through the media that being of First Nations heritage is itself a risk factor for suicidal ideation, an idea he described as “insulting and clearly false”. In fact, First Nations communities show immense variability in suicide rates by health region and census region, with over half showing a 0 rate of suicide. The data collected by Lalonde’s team suggest an inverse correlation between the suicide rate and a variety of social factors, including cultural continuity, inclusion of women in government, political autonomy, and access to mentorship and education services. Communities proved healthiest when granted the autonomy to preserve and promote traditional practices while navigating a clear and unified path towards the future.

“Give Cindy Blackstock all the money she ever asks for.” –Dr. Christopher Lalonde on activism for First Nations peoples access to medical care

Dr. Ronald Niezen concluded the panel by recounting his experience working with First Nations communities, and his observations as to the social patterns underlying the development of suicide crises. In the six months he spent working with intervenors on the reserve, there were 144 reported interventions and 9 suicides. Niezen explained that suicide clusters like this one emit a certain social influence that encourages mutual action, and that the ideation of suicide spreads throughout the community as a response to colonial trauma. He also expressed concerns that the publicity given to interventions creates a tension between the call to action for relief funding and the risk of stereotyping First Nations peoples in the public perception.

Thompson v Ontario (Attorney General), 2016 ONCA 676

Posted By Liam Harris

Background

In 2000, the Ontario legislature introduced a series of amendments (Brian’s Law) to the Mental Health Act and the Health Care Consent Act, broadening the criteria for civil committal and creating a community treatment order (“CTO”) regime in Ontario. Motivated by the murder of media personality Brian Smith by a man suffering from untreated schizophrenia, the CTO regime is a form of compulsory psychiatric treatment imposed on individuals fulfilling prescribed criteria by their doctors. Patients, usually suffering from schizophrenia or related disorders, are ordered to comply with their treatment plan and face the possibility of involuntary hospitalization if they fail to agree to or to comply with the order.

CTO regimes and other forms of out-patient committal have attracted considerable legislative attention in recent decades. As mental health systems shift away from large-scale institutionalization, community treatment is seen by some as a favorable middle ground that provides people with the assistance they require without subjecting individuals to onerous involuntary detention. Detractors, however, point out that attaching the looming threat of committal to treatment plans risks broadening the scope of forced treatment. The delicate balance that needs to be struck between individual autonomy and enthusiasm for treatment in this type of regime invites constitutional scrutiny.

The Application

The application in this case, brought on behalf of Karlene Thompson by the Empowerment Council, challenged the CTO regime as an unjustifiable infringement of various Charter rights, primarily under section 7. The application judge found the scheme constitutional.

The central issues before the Ontario Court of Appeal included whether the applications judge misapplied the principles of fundamental justice, failed to properly consider the purpose of the legislation, or erred in his analysis of ss. 9, 10, 12 and 15 of the Charter.

The Appeal

The Principles of Fundamental Justice

The Court of Appeal affirmed the trial judge’s finding that the impugned provisions were not arbitrary, overbroad nor grossly disproportionate. In coming to this conclusion, the Court placed a great deal of emphasis on the fact that the CTO scheme is only applied following a highly specific assessment of a patient’s condition and treatment needs, a factor tied to the public health and public safety goals of the legislation. The personalized assessment process was found to minimize any risk that the application of CTOs would be arbitrary, overly broad or grossly disproportionate.

The Court also endorsed the trial judge’s refusal to delve too deep into the policy rationale of the scheme in light of contradictory evidence. The Court held that the available evidence reasonably supported legislative action and did not support a finding of arbitrariness, overbreadth or gross disproportionality.

The Legislative Purpose

The appellants submitted that the purpose of Brian’s Law was to protect public safety, and as such could not be constitutionally valid since there was no correlation between mental illness and violence. The Court of Appeal rejected this argument on the basis that the public safety purpose cannot be viewed in isolation from the purpose to improve mental health treatment.

The CCLA argued that improved treatment could not be a valid legislative objective because the treatment offered in the form of a CTO is coerced, in the sense that if a patient does not consent they face involuntary committal. The Court found this argument insupportable, distinguishing the effects of forced treatment from the purpose of improved treatment.

Further, they noted that coerced treatment can be a valid legislative objective in some circumstances and that since individuals subject to the CTO will meet the criteria for involuntary committal, the less restrictive CTO scheme does not amount to improperly coerced consent.

Other Sections of the Charter

The appellants’ arguments related to ss. 9, 10 and 12 replicated their section 7 arguments and were quickly dismissed by the Court of Appeal.

The Court of Appeal also agreed with the application judge that Brian’s Law was not discriminatory against those with mental disabilities for the purpose of s. 15(1). The detailed personal assessment provided for in the CTO scheme was held to be the “antithesis” of discrimination in the sense that nothing about the orders are based on presumed characteristics and the patient’s views are given priority in the assessment. The fact that this assessment process itself may be informed by discrimination in its application was rejected for a lack of factual basis.

Commentary

Thompson provides a strong endorsement of the constitutionality of CTO schemes. The fact that orders are issued further to an individualized assessment, and purport to serve not only the interests of the broader community but also of the patient, appears to have insulated the legislation from constitutional violation. However, CTOs continue to generate controversy across Canada as provincial health systems grapple with whether and how to approach their implementation. Amid a rapidly growing number of CTOs in effect in Ontario, some experts warn against potential abuses. This case may move the discussion around CTOs from the constitutional rights of patients to the design and implementation of the scheme.

Sound Body, Ailing Mind: the Complexities of Assisted Dying for the Mentally Ill

Posted By Liam Harris

Introduction

One of the more salient questions surrounding Canada’s new assisted dying regime concerns requests by persons suffering exclusively from mental illnesses to end their lives. While this option is not currently available in Canada, due to the requirement that death be reasonably foreseeable, Bill C-14 requires the government to conduct an independent review of issues relating to these requests within the next two years.

Global approaches to this issue are mixed. Belgium and the Netherlands permit such requests in cases where the mental illness causes “unbearable suffering with no prospect of improvement”, but the American Psychiatric Association recently approved a policy statement preventing its members from participating in assisted dying. While this is somewhat of a moot point in the United States, where medically assisted dying is not legal, the statement may have an impact here in Canada given the important persuasive role the APA plays in defining the “voice and conscience” of the psychiatric profession generally.

The right to die of the mentally ill has the potential to become the next great battle in the debate around medically assisted dying, raising unique legal challenges and flagging a potential role for the psychiatric profession in non-state regulation of the practice. While mental illnesses are diverse and not all challenges will apply to all conditions, the following themes and legal issues are expected to pose challenges in at least some cases.

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The Carter decision catalyzed Parliament to legalize assisted dying for those suffering from an irremediable physical illness, but what of those whose suffering is mental? || (Source: Dying With Dignity)

Reasonably foreseeable death

The requirement that “natural death has become reasonably foreseeable” excludes mental illness from the ambit of Canada’s new legislation. Since mental illness does not result in natural death, it alone can never constitute the grievous and irrevocable medical condition required to allow the option of physician-assisted death under section 241.2 of the Criminal Code. Notably, the inclusion of this criterion proved controversial at the drafting stage, as it contravened a recommendation of the Joint Special Committee that non-terminal conditions be included. Indeed, Professor Peter Hogg of Osgoode Law School suggested during his testimony that including this condition would make the law vulnerable to constitutional challenge as the Supreme Court alluded to no such criterion in Carter.

Allowing requests for physician-assisted death where mental illness is the sole medical condition is only possible if Parliament removes the reasonable foreseeability requirement. Interestingly, the outcome of the independent review may impact the approach to other non-terminal physical illnesses. Allowing cases of mental illness to circumvent the legislation’s criteria while continuing to require it in the case of physical illness appears logically inconsistent.

Never irremediable?

Another issue that arises in the cases of mental illness is the degree to which mental illness fulfills the criteria of being “irremediable”. Under Canada’s legislation, the requesting individual’s condition must be “grievous and irremediable”, which includes the criteria that it be “incurable” and cause “an advanced state of irreversible decline in capacity”. Psychological problems, being less tangible and less well-understood than physical ailments, complicate the assessment of remediability.

In conformity with the increasingly central recovery-based model of treatment, a variable combination of medical, therapeutic and social interventions might manage suffering such that mental illness is deemed “remediable”. In particular, in light of the fact that a large proportion of individuals suffering from mental illness do not have access to the resources they require, it may be difficult to say with certainty that a given case of mental illness cannot be effectively remedied: there is always the possibility that a different approach or more social support could reverse the decline in an individual’s condition.

Even though a mental illness may be incurable, it seems somewhat less likely, due to the complex causes and varied treatment options, that a psychiatrist would be willing to say that the progress of any given mental illness is irreversible and, therefore, irremediable. Without clear criteria for determining the remediability of mental illnesses, it is unclear how these cases could fit within the C-14 scheme.

Informed Consent

Another issue that complicates assisted dying for the mentally ill is their ability to give the informed consent as required to initiate the assisted dying process. Given that suicidality is a symptom of mental illnesses like severe depression, it may be difficult to separate a reasoned judgment to end suffering from a symptom of the disease. Deciding to end one’s life due to psychological suffering inevitably conflicts with the legal notion that psychological conditions that alter our reasoning can vitiate consent.

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The Carter decision and Bill C-14 took great care in handling issues regarding the patient’s consent. Providing medical assistance in dying for mentally ill patients will prove an even more onerous task. || (Source: Wikimedia Commons)

While most cases of mental illness do not result in a loss of general legal capacity, the president of the Canadian Psychiatric Association believes that when it comes to the specific decision of ending their lives, those suffering from certain mental illnesses may not have capacity to give informed consent. The forthcoming independent report will hopefully address the obtention of informed consent from patients whose decision-making capacity is impaired, but this will not be an easy task.

Resistance from Psychiatrists

Furthermore, another key consideration relevant to assisted death for those with mental illnesses is the extent to which the psychiatric profession may exert its normative power to blunt the occurrence of assisted death by psychiatrists. Bill C-14 does not require doctors to provide medical assistance in dying, leaving them free to decline to offer the treatment as long as they comply with their professional obligations. If Canadian psychiatrists adopted a similar policy position as the APA has just taken, we may see the profession en masse refuse to offer assisted death for patient who are suffering solely from a mental illness. Therefore, even if the government adopts changes to allow the practice, the practical effect could be minimal if psychiatrists continue to oppose the idea.

Conclusion

As our government continues to study the issue of medical assistance in dying for persons suffering exclusively from mental illness, it remains an open question if and how these cases will be brought within the Bill C-14 framework. The particularized treatment of mental illness as compared to physical illness reflects an ongoing struggle to understand and destigmatize psychiatric conditions. It seems natural in this largely uncharted territory – perhaps we should turn to medical experts to guide lawmakers – and it remains to be seen what kind of influence the psychiatric community will have on the future of this legal issue in Canada. Of equal importance, though, is ensuring a place for the voices of those suffering from mental health issues at the center of this discussion. Only through meaningful engagement with a broader subset of stakeholders can the legislature and the Courts strike the fine balance required for such a sensitive issue.

From Lab to Court: Neuroscientific Evidence and Legal Decisions in Disorders of Consciousness and Beyond

Posted By Dr. Anastasia Greenberg

For many, the term “vegetative state” brings to mind the American case of Terri Schiavo and her decade long legal battle (1992-2002) surrounding the “right-to-die”. Terri sustained serious brain damage in 1990 following a cardiac arrest, which led to an eventual diagnosis of a persistent vegetative state. Terri’s husband fought for the right to remove her feeding tube while her parents were desperate to keep her alive, believing she was conscious. Ultimately, Terri’s artificial life support was withdrawn in 2005, stirring an ongoing debate on the difficult ethical and legal implications in similar cases. Progress in neuroscience gives us hope in being able to answer key questions about brain and behaviour with direct relevance for the legislature and the courtroom.

Disorders of Consciousness

Vegetative state can be defined as “wakefulness without awareness”, in which patients show normal sleep-wake cycles (unlike a coma which is analogous to a deep sleep) but without any evidence of purposeful behaviour connected to awareness of the self or the environment. While wakefulness is straightforward to detect based on sustained eye opening and specific electroencephalogram (EEG) activity, the existence of awareness poses a much more complicated question.

In order to measure consciousness or awareness, we rely on behavioural evidence of “command following” as a proxy to make inferences about mental states. For example, locked-in syndrome patients have lost almost all ability to make voluntary movements but retain the ability to respond to “yes” or “no” questions by moving their eyes or eyelids in a consistent manner. This residual ability to form purposeful behaviour leaves no question that the patient is indeed conscious.

Hospital BedAdvances in medical science have changed our understanding of consciousness in patients in a “vegetative” state. || (Source: Flickr // Presidencia de la República Mexicana)

Unfortunately, the difficulty with vegetative state patients is that they do not show any such meaningful behaviour or evidence of language comprehension. These patients will stare into space, move their eyes in an inconsistent manner and may even burst out into laugher or tears; however, none of these behaviours are linked to environmental stimuli.

For a long time, it was believed that such patients were completely unconscious. However, in the last decade this orthodox notion has faced serious scrutiny, regarding at least some of these patients, due in large part to the work of Canadian neuroscientist Dr. Adrian Owen from the University of Western Ontario.

Neural Activity as A Proxy for Behaviour

Dr. Owen’s research method allows certain patients who are labelled as vegetative to communicate solely by modulating their brain activity, recoded using functional magnetic resonance imaging (fMRI). fMRI makes inferences about brain activity indirectly by measuring blood flow, which is temporally linked to neural activity in that recently active cells require a fresh supply of oxygenated blood. This allows scientists to gauge which parts of the brain are involved in various cognitive tasks with high spatial resolution.

In a notable study, Dr. Owen’s team asked “vegetative state” patients in the fMRI scanner to imagine playing tennis or to imagine walking around their house from room to room. When healthy patients are asked to perform this same task, imagining playing tennis shows activation in a part of the brain called the supplementary motor area (SMA) while walking around the house activates parahippocampal corticies (PPA) which are involved in real and imaginary spatial navigation.

Remarkably, a portion of vegetative state patients (17%), diagnosed based on internationally recognized behavioural standards, show consistent SMA activity when instructed to imagine playing tennis and PPA activity in the case of walking around the house. Even more remarkably, they were then able to use imagining playing tennis or imagining walking around the house to respond “yes” or “no” to questions – with 100 percent accuracy. Using their imagination, this select group of vegetative state patients responded correctly to questions about their own name, their parents’ names, the current year, and so forth.

Ethical Issues

These findings make legal characterizations pertaining to the decision to withdraw nutrition and hydration even more complicated. In a personal communication with Dr. Owen, he mentioned that one such patient was asked whether he wished to continue living. He responded: “yes”. This is exciting news in the context of legal decision-making; perhaps we could simply ask the fMRI-responsive patients to decide their own fate.

24130148711_12dae8e061_kfMRI scans allow doctors to prompt and make inferences about neural activity in patients in a “vegetative” state, in some cases enabling a limited channel of communication. || (Source: Flickr // NIH Image Gallery)

But what can be said for the remaining 83% of patients? Can we conclude that they are simply not conscious, and thus truly fit their derogatory label of “vegetative”? The problem with such a conclusion is one of false negatives. When someone consistently “responds” to high-level questions with their brain activity, we can be sure of their consciousness – arguably to the same extent as someone who is saying “yes” and “no” in plain English (or French).

However, when a vegetative patient fails to show any meaningful fMRI responses, we cannot be certain that they are not conscious. Consider, for example, patients that have lost function in their auditory cortex and thus cannot hear the task instruction nor questions – not to mention many more nuanced neural complications that may prevent successful performance despite consciousness.

Legal Applications for Neuroscience Data

Dr. Owen’s work has received enormous media attention and, most relevant to the legal context, Dr. Owen recently submitted an affidavit that was admitted into evidence by the Supreme Court of British Columbia (BC) in Ng v Ng (2013). Kenny Ng was involved in a motor vehicle collision that left him in a minimally conscious state (higher functioning than vegetative) from 2005 onward. Kenny’s wife, who was entitled to give substitute consent for Kenny under BC’s Patient’s Property Act (PPA) and Health Care (Consent) and Care Facility (Admission) Act (HCCFA), decided to take Kenny off of life support in spite of opposition from his siblings.

In a personal communication with Dr. Owen, he mentioned that one such patient was asked whether he wished to continue living. He responded: “yes”.

Dr. Owen’s affidavit could not speak specifically to Kenny’s case given that Kenny never participated in any studies by Dr. Owen’s team. However, it suggested that Kenny could potentially fall into the category of those with awareness and is a good candidate for further study. Ultimately, though, the court ruled in favour of Kenny’s wife since she held the decision-making authority pursuant to legislation and since the removal of feeding was found to be reasonable given the available medical evidence supporting Kenny’s poor clinical prognosis. The court had no legal mechanism by which to order that Kenny be tested by Dr. Owen, a neuroscientist, and set aside the recommendations of Kenny’s team of medical doctors.

An Eye to the Future

The potential applications of neuroscientific evidence in courtrooms and in end-of-life legislation are exponentially increasing. Publications in the developing study of neuroscience and law, coined “neurolaw”, have spiked since 2006. Both neuroscientists and legal scholars express optimism, but they also emphasize erring on the side of caution when admitting flashy neuroscience into court. While the direct legal relevance of Dr. Owen’s work for use in a courtroom setting is persuasive, it also presents many opportunities for abuse, or innocent misinterpretation, of neuroscientific information.

US courts have admitted brain scans (including fMRI) into evidence in criminal cases involving insanity defenses (called defense of mental disorder in Canada), as well as highly controversial fMRI lie-detection evidence. In Canada, fMRI data has not yet seen its day in court and may raise serious Charter issues in relation to brain privacy. Dr. Owen’s affidavit in Ng v Ng is one of only two Canadian cases to ever mention fMRI in more than an incidental way. In a controversial ruling in Italy, a court reduced a sentence for murder after being presented with neuroscientific evidence in the form of brain scans and genetic evidence that suggested links to poor impulse control.

CourtLegislators and the courts will have to grapple with the risks and benefits of allowing the adducement of neuroscientific evidence before a judge. || (Source: Flickr // Jordan Schulz)

A deep understanding of neuroscientific technology and methodology is invaluable in drawing valid conclusions based on the data presented. A jury may interpret a colourful fMRI image as analogous to an X-ray – being able to “see” brain activity – when in fact the image is created through a series of inferential steps involving complicated statistical analyses performed on the data. These steps are peppered with human decisions about which statistical thresholds are to be used, which behavioural conditions should be compared, and so forth. Concerns over “overclaim syndrome” relate to the persuasive “wow” factor neuroscientific evidence evokes. In one study, mock jurors were more likely to give a verdict of “not guilty” if a defense of mental disorder was presented along with MRI images.

Neuroscientific evidence also has the potential to influence end-of-life legislation, such as BC’s PPA and HCCFA that were used to transfer consent to Kenny’s wife, by requiring neuroscientific interventions before transferring consent. Currently, however, such a provision can only exist in the parliament of dreams, as neuroscientific tests of consciousness are far from routine procedures.

Neuroscience and law have begun to converge, developing the field of neurolaw with international neurolaw conferences and societies bringing scholars and practitioners from both disciplines together to explore their mutual interests. Professor Henry T Greely of Stanford Law School predicts that neuroscience will revolutionize the law: while the consequences of this neurolaw revolution carry serious risks, a future that offers a “window into the mind” may prove more conducive to justice. For those conscious patients trapped behind a “vegetative” label, neuroscientific evidence may provide sufficient weight to tip the scales of justice.

Dr. Greenberg holds a PhD in Neuroscience from the University of Alberta, and recently began studies at the McGill Faculty of Law.