Neurointerventions and informed consent

Abstract

It is widely believed that informed consent must be obtained from a patient for it to be morally permissible to administer to him/her a medical intervention. The same has been argued for the use of neurointerventions administered to criminal offenders. Arguments in favour of a consent requirement for neurointerventions can take two forms. First, according to absolutist views, neurointerventions should never be administered without an offender’s informed consent. However, I argue that these views are ultimately unpersuasive. The second, and more plausible, form defences of the consent requirement may take are more moderate in that they accept the use of neurointerventions in some (rare) cases, but not in (most) others. Based on common rationales for consent in medical interventions, I discuss whether four moderate approaches in defence of the informed consent requirement for medical interventions succeed in establishing that informed consent must be obtained from offenders prior to administering neurointerventions to them. I offer novel critical perspectives on approaches that have already received some attention in the literature (ie, bodily integrity and harm), and I critically discuss other approaches to defending informed consent in a medical context that have not yet received due attention (ie, self-ownership and trust). Ultimately, I argue that it is not obvious that any of these considerations support a requirement of offenders’ informed consent to neurointerventions. Lastly, however, I suggest that there is at least one overlooked fact as regards how courts currently employ mandatory neurointerventions, which may support such a requirement.

Cognitive Diminishments and Crime Prevention: “Too Smart for the Rest of Us”?

“…in cases of infectious disease control, it is not always the case that respecting a person's autonomy is 6 Arguments for an informed consent requirement to neurointerventions can, of course, be based on one or multiple important moral values besides autonomy (e.g. harm, trust, and self-ownership) and can be more or less permissive in terms of what infringements of the requirement (if any) they permit [36]. It would, however, be overly ambitious to attempt to critically discuss all these possible ways to defend the requirement in relation to CDs in this short paper.…”

“…Importantly, according to this view, the wrongness of mandating neurointerventions does not reside in the violation of a right to mental self-determination as such, but in the message of disrespect that such a violation expresses "because of the social meaning that attaches to violations of the rights to mental and bodily integrity" [2]. 16 Anchoring an understanding of a message as disrespectful on its social meaning obviously makes it (at least partly) an empirical question whether the message conveyed is indeed disrespectful, and this may raise a number of challenges for the expressivist argument [36].…”