A new question for the jury: Did my brain implant make me do it?
We’ve written as lot about “brain malfunction” [aka “did my brain make me do it?”] defenses here but this is a new twist on the neurolaw question. Deep brain stimulation (“DBS”) is a well-accepted treatment for a number of serious and treatment resistant neurological conditions from Parkinson’s Disease to depression and obsessive-compulsive disorder. As effective as DBS can be, there are also concerns about how, in some patients, it changes one’s personality to cause “undesirable or even deviant behavior”. The behavioral/personality changes depend on the location of the deep brain stimulation (and the functions carried out by that portion of the brain).
So. You have a condition for which everyday treatment is ineffective or causes side-effects worse than the condition itself. Your doctor suggests a brain implant to offer deep brain stimulation (DBS). You are unfortunately, one of those for whom DBS creates behavioral reactions and you do something illegal. Are you responsible? Or is it your brain implant?
The authors of the paper we are examining today consider DBS in relation to one’s responsibility for action (caused by the DBS) and the issue of mental competence (when one’s behavior is modified by the DBS). They discuss case studies and ponder the limits of responsibility when one’s brain has been intentionally modified but the reactions are idiosyncratic. They compare DBS to the behavioral changes sometimes experienced by persons taking antidepressants and having negative behavioral changes that can bring them into contact with the criminal justice system. Is DBS behavioral alteration akin to severe medication side-effects? Or is it more like to substance-abuse related behaviors like sexual assault or even homicide?
For patients receiving DBS who have had a history of suicidal ideation or severe depression, the authors consider the civil liability of physicians and manufacturers of the DBS devices themselves. Sometimes, the negative effect of DBS is resolved by simply shutting the device off and the patient returns to baseline. Other times that may not happen–the technology is fairly new and much remains unknown. What does it mean about our individual identity to be dependent upon a brain implant for function? In short, the authors believe the questions need to be resolved while DBS treatment is relatively new rather than having court decisions create a roadmap to individual responsibility under DBS.
The article is very complex and the ideas in it are provocative. We cannot do justice to the questions raised by these writers in a brief blog post. It’s a very serious question.
When you agree to a cutting-edge treatment and you are informed that for some people, behavioral changes may occur, do you thereby accept responsibility for any actions you take under the influence of that treatment?
Or, since the behavior is completely different than anything you have previously displayed and is thus believed due to the treatment (which can be shut off) is it fair to deny responsibility?
And if you encounter aberrant behavioral effects but decide to not shut off the DBS because you appreciate the ways in which it helps you function, are you then more responsible for any illegal act you committed since you are choosing to continue down the same path?
Yes. This is a new question. Not, “did my brain make me do it?” but “did my brain implant make me do it?”. Ultimately, however, the larger question remains the same. Where does our personal responsibility end?
Klaming L, & Haselager P (2013). Did My Brain Implant Make Me Do It? Questions Raised by DBS Regarding Psychological Continuity, Responsibility for Action and Mental Competence. Neuroethics, 6, 527-539 PMID: 24273622