The Mental Enhancement of Detainees in Prison

Therapeutic brain intervention undertaken on an (otherwise competent) person, who is presently detained in prison or subjected to another form of legally justified custody, are prone to raise doubts about that person's ability to consent freely to the measure. Given the particular circumstances, can this consent be truly autonomous, and thus legally valid? Before attempting to give an answer, we should define the question more precisely. The first scenario to envisage is the standard situation of an illness manifesting itself during a legal term of imprisonment and treatable by a brain intervention. This poses no particular problem. There is, as we said, no legitimate way of forcing treatment on competent persons. This pertains no less to prisoners than to any other people. However, problems do arise in other settings. If and when (1) the detained person has served his full term of legal punishment but (2) remains in custody (so-called preventive detention) because (3) he exhibits a severe form of sociopathy, which renders him a permanent danger to his fellow citizens, but (4) which could possibly be treated by a novel method of brain intervention.

We are quite aware that the current projection of such a medical possibility has an air of science fiction about it. However, this may very well change in the not too distant future. Thus we shall attempt to explore the normative problems it raises. Do the alternatives presented to such a sociopath, to undergo the said brain intervention or remain detained indefinitely, leave

287 Only, of course, within the boundaries developed in our legal analysis above.

room on his part to make an autonomous decision and to give valid consent to such an intervention?

The answer is clearly yes. The mere weight of the pressure, under which consent may be given, does not necessarily inhibit its autonomy and legal validity. If that pressure is not exerted, or wilfully controlled, by other people but only by naturally given circumstances, it may be as high as one pleases, it may even, for any reasonable person, come close to being completely determinative of the ensuing decision, yet it does not touch upon the autonomy and validity of that decision in the least. Hypothetically speaking, a patient diagnosed with kidney cancer and confronted with the choice of either consenting to a removal of the diseased kidney or to face certain death within a few months, will most probably choose the former. Her consent to the surgery is doubtlessly autonomous and valid, even though she may feel quite intensely that she has no reasonable alternative. By contrast, that same person, confronted with the threat exerted on her by somebody else that she be killed if she refused to consent to a removal of her kidney for transplantation purposes, would not be said to consent autonomously or validly if she agreed to the procedure.

The reason why the law treats these two instances of consent completely differently, despite their apparent similarities, is not difficult to see. The law aims at regulating the interaction of persons. It is not its duty to shield people from the risks of their natural environment. Hence, the autonomy of a decision made under whatever natural circumstances is not affected at all by the psychological influence these circumstances might exert on the decision. From a legal perspective, it is solely a person's own concern how she deals with compelling, constraining or necessitating forces arising out of whatever natural circumstances she may encounter. The situation changes completely, however, if such forces are exerted by one person on another. In this case, the decision to yield to this sort of "man-made" pressure has its true origin in the coercers mind and, hence, is really his decision. This fact, not the weight of the pressure exerted, leads us to attribute responsibility for the decision (and, thus, the ensuing action) not to the person called upon to undergo a certain procedure, but to the coercer. Consequently, we cannot consider any person thus coerced to be autonomous when making that decision.

Projected onto the problem of the detained sociopath this implies the following. The pressure placed on a person by others who are legally entitled, perhaps even obliged, to exert that force is really nothing other than pressure exerted by the norms of law themselves. As far as the autonomy of somebody confronted with that pressure is concerned, the force of the legal order (as part of the social environment) is on a par with the force of the natural order (the natural environment).288 Hence, decisions of persons taken under com

288 We presuppose here the normal case of a legal system that is, in principle, ethically legitimate. Terrorist or totalitarian regimes and their freedom restricting suppressive measures are a different matter; an enhancement offer under such circumstances would indeed amount to illegitimate blackmailing.

pulsion of legal norms are no less autonomous than decisions under the compelling force of natural circumstances. Whether that compulsion is the result of a direct effect of those norms on the deciding person, or else the result of enforcement measures by intermediaries acting within their legal competence, does not make a difference.

Therefore, we hold the following position. Should a brain-invasive treatment for severe psychopathy ever become available, subject to common criteria for weighing the potential risks against the potential benefits of this procedure, then nothing stands in the way of offering such a treatment to people in preventive detention if that is the only alternative to their being kept in custody indefinitely. The sheer force of pressure exerted on the detainee by those circumstances would neither infringe the autonomy, nor the legal validity, of his or her decision. We hold that, in such a situation, the state would be not only entitled but even obliged to make the respective offer for the following reasons. Having a brain-invasive treatment for psycho-/sociopathy in order to regain one's status as a free person might be less burdensome to that person than an indefinite detention and yet might still be capable to accomplish the same effect, namely the protection of the general public from a dangerous individual. Since all of the state's coercive measures towards its citizens are subject to the principle of proportionality, this obliges it to offer the prisoner the opportunity of mental enhancement. Whether or not such an intervention really is a lesser burden than the prospect of a continued detention, is to be left solely to the decision of the person affected, i.e. the detainee.

We add that this reasoning would not be altered even if one rejects the idea of calling a violent and dangerous disposition a disorder and, consequently, its abolishment by an intervention in the brain a form of treatment. This is certainly a defensible view. One might prefer to consider such an intervention, at best, an enhancement. However, in this case too the principle of proportionality urges the state to offer a choice of the lesser of two burdens, if both are equally suited to safeguard the legally required effect. The question of who has to pay for such an enhancement is a different matter. It would be fair, and certainly legitimate, to have the detainee pay for himself. However, if he or she does not have sufficient funds to pay for this treatment, a kind of fiduciary duty of the state to take over the costs might ensue. This question, though, clearly draws us away from the subject matter of the present inquiry and into more mundane, everyday questions of the law. This is where we shall leave it for the time being.

7.1 Conceptual Clarifications 386

7.1.1 Concerns about the Integrity of Persons 386

7.1.2 The Proper Limits of Medicine: Treatment -Enhancement - Prevention 387

7.1.2.1 The Legitimacy of Medicine Proper 387

7.1.2.2 Enhancement versus Treatment 388

7.1.2.3 The Purpose of Medicine: Fighting Disease 388

7.1.2.4 Enhancement Does Not Serve the Purpose of Medicine 389

7.1.2.5 Self-Enhancement versus Enhancement of Others 390

7.2 Normative Foundations 391

7.2.1 Nonmaleficence: Avoiding Harm in Intervening in the Brain 391

7.2.1.1 Dealing with Side Effects in Research and

Medical Practice 392

Monitoring for Subtle Mental Side Effects 392

The Subtlety of Personality Changes 393

7.2.1.2 Minimising Harm by Careful Study Design 394

7.2.1.3 The Possible Harm of Enhancement 395

Are There Illegitimate Goals of Enhancements? 395 Dealing with Side Effects of Enhancements 398

7.2.2 Beneficence: The Limits of Doing Good to Others 399

7.2.2.1 Treatment and Prevention 399

7.2.2.2 Responsibility and Liability Regarding Enhancement 399

7.2.2.3 Public Funding for Research 400

7.2.3 Autonomy: Issues of Informed Consent and Coercion 402

7.2.3.1 Treatment, Prevention and Research 402

The Incomprehensibility of Mental Harm as an Obstacle to Informed Consent 402

Exercising Autonomy under Coercion 403

7.2.3.2 Enhancement and the Limits of Autonomy 405

Enhancement and the "Grave Affront" Principle .. 405 Enhancing Children: The Scope of Parental

Discretion 406

Concerns about Authenticity 408

7.2.4 Justice: Inequality, Fair Distribution, Political Justice 410

7.2.4.1 Problems of Distributive Justice 411

Does Enhancement Exacerbate Existing Social

Inequality? 411

Does Enhancement Entail Wastage of Medical Resources? 413

7.2.4.2 Problems of Political Justice in General 414

The history of therapeutic interventions in the psyche is as old as the history of medicine. Ancient Egyptian, Chinese and Greek medicine already included prescriptions for the treatment of what would nowadays be called "mental illness" (Millon 2004). Similarly, beyond the realm of therapy mankind has always sought means to enhance and develop features of the mind, as is evidenced by varied traditions of religious and spiritual practices. It is important to bear this historical perspective in mind when commenting on the concerns raised by recent methods of intervention in the central nervous system (CNS) which, in addition to providing new opportunities for treating and enhancing the psyche, may have inadvertent effects on the mental level as well.

^ Having studied these new methods in psychopharmacology, neurotransplantation, gene transfer, neural prosthetics and electrical brain stimulation, the authors of this book acknowledge and endorse their potential to benefit the individual, as well as society, by yielding innovative therapeutic applications. Of course, since these interventions operate directly on the brain, it is obligatory to handle them with appropriate caution, even if they are used for treatment purposes only.

Due to the integrated structure of brain functions, the possibility of a therapeutic intervention in the brain having unwanted side effects on the mental level can hardly ever be ruled out, regardless of whether it is intended to have an effect on the psyche or not. The task of dealing with risks of this kind in an ethically acceptable manner is certainly not new. On the contrary, ever since therapeutic goals have been pursued by deliberately introducing physiological or structural changes in the CNS, there has been the need to cope with unanticipated side effects occurring not only on the mental level, but on all levels of human functioning. Moreover, the general challenge of how to balance the likely benefits of a treatment option with the probability, and the potential severity, of associated mental harm is not unique to interventions in

289 This final chapter contains important results from the entire study. However, since the main aim of this chapter is to draw practical conclusions addressing decision makers in politics and medicine, many results pertaining to specific techniques of intervention have not been included in this résumé. We refer readers interested in these results to the concluding sections of each chapter in the first part of this study. Also Chapter 5 contains a more detailed summary in its final section (5.5).

the brain. Other types of medical procedures must be subject to similar risk assessments before they are undertaken. For instance, mastectomy has long been associated with a wide array of "mental" side effects, ranging from transient depression to lasting changes in a woman's self-concept.

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Brain Blaster

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