The Legal Implications of Detecting Alzheimer’s Disease Earlier

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The American Medical Association Journal of Ethics

In addition to my work as an historian, I am also a JD/MA Bioethics candidate at the University of Minnesota Law School. Ever since I first read David Eagleman’s book Incognito (2011), I’ve been enamored with the field of “neurolaw,” i.e. the intersection of law and neuroscience. I’ve been lucky to pursue this interest professionally, setting out on a path that’s taken me to Eagleman’s Center for Science & Law, the magazine Voices in Bioethics, and more recently the Shen Neurolaw Lab here at the University.

Though I’ve only been with the lab since May, things have been moving along quickly. There’s more coming down the pipeline, but I’m pleased to say that last month the American Medical Association Journal of Ethics published a co-authored essay in its “Ethics in Neuropsychology” issue. Our paper is titled “The Legal Implications of Detecting Alzheimer’s Disease Earlier” and as its lead author, I’m especially proud of it for two reasons. First, it’s been an honor to work alongside Professor Francis X. Shen, undoubtedly one of the top neurolaw scholars in the field today. The guy’s brilliant. Second, it gave the lab an opportunity to develop some “first thoughts” on a topic that will, within the next decade, move the hand of the legal system. After all, as doctors get better at detecting the physiological indicators of Alzheimer’s disease long before there are behavioral changes, how should law and medicine respond?

Here’s the abstract:

Early detection of Alzheimer’s disease (AD) raises a number of challenging legal questions. In this essay, we explore some of those questions, such as: Is a neurological indicator of increased risk for AD a legally relevant brain state before there are any outward behavioral manifestations? How should courts address evidentiary challenges to the admissibility of AD-related neuroimaging? How should the government regulate the marketing of neuroimaging diagnostic tools? How should insurance coverage for the use of these new tools be optimized? We suggest that many voices and multidisciplinary perspectives are needed to answer these questions and ensure that legal responses are swift, efficient, and equitable.

You can read the full article on my Academia.edu page here.


Citation: Joshua Preston, Jaleh McTeigue, Caitlin Opperman, Jordan Dean Scott Krieg,Mikaela Brandt-Fontaine, Alina Yasis, and Francis X. Shen, The Legal Implications of Detecting Alzheimer’s Disease Earlier, 18 AMA Journal of Ethics 12 (2016): 1207-1217.

Once again we are reminded that not every brain develops the same

In the fall 2012, I briefly left the University of Minnesota Morris to do a series of directed studies in Houston, TX. One of these included attending Dr. David Eagleman’s “Neuroscience and Law” course at Rice University, which required that we write for the Initiative on Neuroscience and Law’s blog. This was originally published September 26, 2012.

In an article published in the Proceedings of the National Academy of Sciences, researchers at the Columbian College of Arts are giving further insight into the evolutionary history of our cognitive development. In studying the brains of both chimpanzees and humans, they discovered that myelin, which is “fatty insulation surrounding axon connections of the brain”, ceases developing in our distant cousins long before it does for us. In fact, in humans it fully develops only once we have entered early adulthood.

The developmental timing of myelination is important because it establishes connectivity among parts of the growing brain, which is essential to higher-order cognitive functions, such as decision-making and emotional regulation. These cognitive functions are known to mature relatively late in humans, after the time of adolescence. Also, this period of persistent myelin development during early adulthood in humans is a time of particular vulnerability to neuropsychiatric diseases, including schizophrenia, bipolar disorder, and depression.

This research is important for several reasons but I find it particularly interesting since it affirms, once again, that our legal system must accommodate the full diversity of brains that find their way before the bench. Right now, the legal system does differentiate between “youth” and “adulthood” but does so on purely artificial lines – if you commit a crime the day before your 18th birthday, you will be held to a different level culpability than if you had committed said crime a day after. Such distinctions are necessary since a line must be drawn somewhere but such lines are arbitrary and assumes that at this level of adulthood one has a full understanding of the consequences of their actions. Research like this reminds us that that is not true. Instead of having a bright line, we should be more flexible in how we distribute punishment – and once we do this, it will only follow that a fair and equitable legal system will be one that scales punishment according to the brain on trial whether we regard the individual as an “adolescent” or not.

Neuromodulation, Or “Every Science Lab Needs a Philosopher”

In the fall 2012, I briefly left the University of Minnesota Morris to do a series of directed studies in Houston, TX. One of these included attending Dr. David Eagleman’s “Neuroscience and Law” course at Rice University, which required that we write for the Initiative on Neuroscience and Law’s blog. This was originally published October 17, 2012.

If a fundamental question in neurolaw is how the legal system should move forward with the specific brain on trial, then the major role neuroscience can play in the courtroom is in the sentencing process. In fact, after identifying the biology that may have predisposed an individual to criminal behavior, attention must be paid to how sentencing – the rehabilitation process – can effectively be carried out. For example, if it was a malformed frontal lobe that unfairly led an individual to give in to an irresistable impulse, neuroscience plays the dual role of identifying this malformity and how best to correct it.

This can take many forms (including basic conditioning) but one promising field is neuromodulation.

As we are still living in a period where our understanding of the brain is in its infancy, neuromodulation still has ways to go but is promising in its ambitions. Much of it is focused on the treatment of disease such as depression, eating disorders, and damage to one’s motor control, but if we are able to produce devices that can effectively give Parkinson’s patients a new lease on life (like the example of this man who was diagnosed in 1998 and now feels “like a newborn baby”), what else could we do? As the author Douglas Coupland once famously remarked, “Where does personality end and brain damage begin?” why could we not develop a piece of technology that, when attached to those parts of the prefrontal cortex responsible for decision making, maintains a steady stimulation that allows us to, say, rationally assess the relationship between our long- and short-term self-interests? After all, why would we ever let the better angels of our nature flitter away?

Of course, I understand this could be the fodder for a Huxleyan dystopian novel but this is not science fiction and these are the major ethical and social questions we will soon need to answer. It’s clear that neuromodulation opens many doors in the medical world, but it does the same for both the legal world (rehabilitation) while opening hundreds more in the socio-political world (for example, what constitutes “neural rights”?). These are issues that we cannot avoid, and even though I cannot claim to have any answers it’s about time every science lab hired a philosopher.

The natural sciences can inform rather than dictate our public policy

In the fall 2012, I briefly left the University of Minnesota Morris to do a series of directed studies in Houston, TX. One of these included attending Dr. David Eagleman’s “Neuroscience and Law” course at Rice University, which required that we write for the Initiative on Neuroscience and Law’s blog. This was originally published October 30, 2012.

In an article titled “Can Neuroscience Challenge Roe v. Wade?” William Egginton, professor in the Humanities at John Hopkins University, cautions us to be careful in how we use the natural sciences to shape public policy. In this case, abortion rights. Egginton writes about attorney Rick Hearn’s suits against Idaho’s Pain-Capable Unborn Child Protection Act “and others like it that cite neuroscientific findings of pain sentience on the part of fetuses as a basis for prohibiting abortions even prior to viability.” The reason for this is because Hearn believes that the government is using results from the natural sciences “as a basis for expanding or contracting the rights of its citizens.” The logic goes like this: if it can be proven that fetuses are capable of pain then they are conscious and thus a person deserving of their full rights under the constitution. This clearly has political overtones.

The turn to legislation based on alleged neuroscientific findings in search of an end-run around the protections provided by Roe v. Wade is popular among Republicans. Mitt Romney voiced his strong support for such legislation in 2011, when he wrote in a piece in National Review, “I will advocate for and support a Pain-Capable Unborn Child Protection Act to protect unborn children who are capable of feeling pain from abortion.” Since viability is, according to Roe v. Wade, the point at which the state’s interest in protecting “the potentiality of human life” becomes compelling enough to override its interest in protecting the right of a woman to make decisions regarding her body and its reproductive organs, Idaho’s statute and others like it would either be found unconstitutional or, if upheld, entail overturning a fundamental aspect of Roe v. Wade.

This is reasonable enough since the Republicans are simply trying to reinforce their philosophical arguments with evidence. If it is true that the fetus experiences pain (as we would conceive of it), that is a pretty strong argument in their corner. Unfortunately, when the Republicans refer to pain sentience there is the implication that these feelings arise from a primitive form of consciousness, which is debatable.

Current neuroscience distinguishes a spectrum of degrees of “consciousness” among organisms, ranging from basic perception of external stimuli to fully developed self-consciousness. … The neuroscientist Antonio Damasio, for instance, distinguishes degrees of consciousness in terms of the kind of “self” wielding it: while nonhuman animals may exhibit the levels he calls proto-self and core-self, both necessary for conscious experience, he considers the autobiographical self, which provides the foundations of personal identity, to be an attribute largely limited to humans.

… For a fetus to be conscious in a sense that would establish it as a fully actualized human life, according both to current neuroscientific standards and to the philosophical tradition from which the concept stems, it would have to be capable of self-perception as well as simple perception of stimuli. … By turning to consciousness in an attempt to push Roe’s line-in-the-sand back toward conception, in other words, abortion opponents would in effect be pushing it forward, toward the sort of self-differentiation that only occurs well after birth and the emergence of what the phenomenological tradition has called “world” [Emphasis mine].

Fortunately for infants everywhere, though, philosophy is always evolving and we can change our views in light of the evidence. Acknowledging neuroscience’s views on consciousness does not suddenly mean that we need to allow abortions in the fourth trimester. Social policy is not strictly beholden to science. Instead, what we often do is use our experiences, intuitions, and philosophies to guide our research in a way that either reinforces or invalidates said experiences, intuitions, and philosophies, the latter of which we then amend accordingly. If our ideas on consciousness could, in theory, allow for the killing of babies, then let us change our philosophies to fit our intuition that killing babies is wrong. It is as simple as that. What our understanding of consciousness simply means (in this case) is that if the anti-abortion movement hopes to gain any traction it must discard the “pain sentience”/”consciousness” argument otherwise maybe we couldjustify abortion after-birth.

I am sure there are other arguments that can be made against abortion but citing pain sentience is not one of them.

Lastly, in this article I think Egginton places too much emphasis on what he calls the “hubris” of science to overreach into those fields he believes to be in the realm of philosophy. At face value I do not disagree but it is misleading for him to blame science’s role in the pain sentience debate rather than the idealogues who are cherry-picking and misusing it to support their ends. It is true that the non-scientific community will often regard SCIENCE! as a beacon of infallibility (except when it challenges their intuitions) but that is not the problem of science it’s the problem of society. This is just another example of how scientific illiteracy pollutes the discourse rather than science being “dictatorial.”

Literary Neuroscience as Rehabilitation? (Or, ‘Prevent Crime; Employ English Majors’)

In the fall 2012, I briefly left the University of Minnesota Morris to do a series of directed studies in Houston, TX. One of these included attending Dr. David Eagleman’s “Neuroscience and Law” course at Rice University, which required that we write for the Initiative on Neuroscience and Law’s blog. This was originally published on September 11, 2012.

According to neurolaw, a successful and just legal system will be one that concerns itself with the steps moving forward with the specific brain on trial. If our behavior is influenced by our biology and circumstance, it is irreducibly complex to assess a criminal’s culpability in a way that is both satisfying and scientifically-informed. Instead of comparing and judging the sizes of one’s frontal lobe or another part’s propensity for firing (or not firing) certain chemicals while also factoring in one’s upbringing and the effects social institutions can have on our behavior, our legal system should focus on rehabilitation rather than strict punishment.

The question is, though, how should we go about rehabilitating. The answer: in a manner that gives the criminal the cognitive “tools” to not only distinguish right from wrong but to be able to guide their behavior accordingly. While there are many ways in which this can be done (one neuroscientist suggests the “prefrontal workout”) something that has caught my attention is the fledgling field of Literary Neuroscience.

At Stanford University researchers are investigating the ways in which literary study – in this case of Jane Austen – affects the brain. Going into an fMRI machine, participants were expected to first “leisurely skim a passage as they might do in a bookstore, and then to read more closely, as they would while studying for an exam.” The literary scholar leading the project, Dr. Natalie Phillips

said the global increase in blood flow during close reading suggests that “paying attention to literary texts requires the coordination of multiple complex cognitive functions.” Blood flow also increased during pleasure reading, but in different areas of the brain. Phillips suggested that each style of reading may create distinct patterns in the brain that are “far more complex than just work and play.”

The article continues,

The researchers expected to see pleasure centers activating for the relaxed reading and hypothesized that close reading, as a form of heightened attention, would create more neural activity than pleasure reading. If the ongoing analysis continues to support the initial theory, Phillips said, teaching close reading (i.e., attention to literary form) “could serve – quite literally – as a kind of cognitive training, teaching us to modulate our concentration and use new brain regions as we move flexibly between modes of focus”[italics mine].

Now, it should not surprise us that since education can influence how we understand the world that it can also affect the wiring of our brain. After all, it is a tenet of neuroscience that “the mind is what the brain does.” Still, studies like this are necessary since they give us an insight into how differentapproaches to education affect the three pound piece of meat that is us.

Although literary neuroscience still has a ways to go, I am anxiously waiting to see what comes to bear and how literary training could be used in the criminal rehabilitation process. For example, if we discover that critical reading can change the brain in a way that makes us better decision-makers, why not use that to the legal system’s advantage? Assuming it is not dismissed as “cruel and unusual punishment” at least we would be moving our legal system forward and – finally – English majors would be able to actually use their degrees in the real world.

The Atlanta Neuroethics Consortium: Neuro-Interventions and the Law

This is my “Voices in Bioethics” write-up of last month’s Atlanta Neuroethics Consortium. It was my first foray into the law and neuroscience world — and I loved it. What I don’t talk about is my experience using Couchsurfing.com (great!) or why I missed the Sunday panel.

With my flight leaving Sunday evening, I spent the morning walking to the Carter Presidential Library but gave up when I realized I’d never make it. Compensated by visiting the Martin Luther King Historic Site. Very good.

Voices in Bioethics

by Joshua Preston 

Recently, I attended the Atlanta Neuroethics Consortium’s (ANEC) conference on Neuro-Interventions and the Law: Regulating Human Mental Capacity (September 12-14). Hosted by Professor Dr. Nicole Vincent, it was my first foray into the “neurolaw” world. Most of the attendees and keynote speakers were pulled from the MacArthur Foundation’s Law and Neuroscience Research Network, and because of this, I was impressed by the cross-disciplinary representation. The conference included experts in the biological sciences and psychiatry as well as legal scholars and practicing judges. Additionally, I must add, it was free, which is the best price.

The opening keynote from Vincent laid out the major topics that would be explored over the next three days. In it she outlined her taxonomy of the relationship between responsibility and mental capacity (i.e., how does an individual’s cognitive abilities affect our expectations of them?). Each panel addressed…

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Gillian Bennett & Physician-Assisted Suicide

Did you know that you don’t have a constitutional right to die and physician-assisted suicide is legal in only five states? Here’s my latest article for Columbia’s Voices in Bioethics. In it I discuss the death of Gillian Bennett and euthanasia laws in both Canada and the United States.

Voices in Bioethics

by Joshua Preston 

“I want out before the day when I can no longer assess my situation,” wrote Gillian Bennett, a Vancouver woman, in an open letter to be published after her death. “[I] will be physically alive but there will be no one inside.” Addressing the dementia she had been living with for three years: “[M]uch faster now, I am turning into a vegetable … Dementia gives no quarter and admits no bargaining.” So, dragging a mattress to her favorite spot, on August 18, 2014, Bennett, age 83, self-administered a lethal dose of barbiturates and passed with her husband holding her hand.

In Canada, physician-assisted suicide (PAS) is illegal, leaving individuals with degenerative illnesses to make these decisions on their one without the resources available to most hospitals. As Bennett observed, if she wished to resist becoming a vegetable, this was her only option –…

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