We need to separate the neuroscience hype from the reality

This article by Sascha Callaghan and Allan McCay,  was published in the Sydney Morning Herald, 30 November 2015.

Oregon serial killer Dayton Leroy Rogers was recently sentenced to death for the fourth time, after a strongly argued case that the sentence should be reduced to life in prison.

Rogers’ lawyer argued that scans indicated damage to parts of his brain could have caused his manic killing sprees. The thrust of the argument was that brain damage reduced his responsibility for the crimes.

The Rogers case is part of an emerging trend for neuroscience evidence to be brought to court to help the defence in criminal trials.  That said, the use of neuroscience in court is not entirely new. Rogers has made similar claims for some time. However, there are reasons to believe neurolaw cases are increasing in the US and Australia.

In 2011, a member of the Tasmanian Legislative Assembly, Terry Martin, was found guilty of child sex offences. Neuroscience evidence made a major difference to the final outcome. The sentencing judge accepted that medication for the treatment of Parkinson’s disease had led to Martin’s compulsive sexual behaviour and that this was a significant mitigating factor.

In light of the expert evidence, Martin served no further time in jail.

In civil matters, neuroscience is assisting personal injury claimants seek compensation for pain and suffering. Courts are now looking to neuroscience evidence for “proof” that injuries such as pain or psychiatric illness are not “all in the plaintiff’s head”.

Earlier this year, brain research into post-traumatic stress disorder helped nurse Karen Casey to recover compensation after a terrifying plane crash that left her with multiple injuries and debilitating PTSD.

Under international law compensation for aviation injuries need only be paid in respect of “bodily injuries” and not purely mental or emotional injuries. Historically, PTSD has been regarded as a mental injury, but Casey’s doctors referred to neuroscience evidence showing that PTSD occurs alongside changes in the brain.

On this evidence, Justice Monika Schmidt of the NSW Supreme Court decided that Casey’s PTSD was “not merely the result of an injury to her mind” but that it also “involves an injury to her brain”.

Casey is the first Australian to recover damages for PTSD as a bodily injury.

Some commentators are now suggesting neuroscience will revolutionise the legal system, that courts will become concerned with managing those with malfunctioning brains, and that we will cease to care about “outdated” notions such as blame and deserved punishment; and that courts may eventually have access into our private thoughts, with sophisticated lie detection technology.

But is this just science fiction?

A research collaboration between Macquarie University and the University of Sydney aims to answer these questions. The Australian Neurolaw Database aims to separate neurolaw hype from reality. We are examining what Australian courts are doing in response to evidence derived from neuroscience.

Cases in the database, such as Martin’s and Casey’s, clearly demonstrate the ethical and legal significance of neuroscience evidence in some court decisions, although it does appear that judges are taking a reasonably cautious approach.

Traditional evidence is still the gold standard for the courts. For now at least, what people have done and said remains more persuasive than scans.

Important policy questions remain for the future.Do we allow every new technology into court? Should citizens have a right to mental privacy as pupil-scanning and other technologies become more prevalent? Should evidence gathered about what we are thinking and feeling via pupil and skin temperature data be excluded from courts? Should neuroscience-based dangerousness tests be used to determine whether prisoners should be granted parole?

Very soon policy-makers will be able to look to the Australia Neurolaw Database to help develop answers to these difficult questions.

 

Policing parenting: is the Family Court going to punish you for having a drink?

Sascha Callaghan, University of Sydney

News outlets have pounced on a Family Court “order” for parents of a six-year-old boy to not smoke around the child and to limit their alcohol consumption while caring for him. Readers commented that the case represents an unacceptable “intervention by the courts into the personal space of the individual”, and that it was an attempt at “social engineering” . The idea of a court intervening in family life to prevent what might seem like fairly ordinary activities, such as occasional tobacco smoking or having a glass of wine or two, might seem like evidence of an overreaching “nanny state”. And perhaps it would be if that’s actually what happened – but it didn’t. It is true, though, that the “right to parent” according to one’s own values and proclivities isn’t actually unfettered. The state can and will intervene in family life in various circumstances.

A definite jurisdiction

State Supreme Courts have powers to make orders under their protective jurisdiction to allow important medical treatment to go ahead if parents won’t consent, for instance. The NSW Supreme Court did exactly that in a 2013 case where a Jehovah’s Witness parent refused a life-saving blood transfusion on behalf of their child. State agencies can also intercede in family life under child protection laws when a child is at risk of significant harm. This kind of coercive intervention is reserved for serious cases where the child’s basic needs are not being met. And it generally requires much more than a parent who smokes or drinks too much from time to time to trigger intervention. But child protection laws have also been invoked when parents of a severely overweight boy didn’t go to hospital for treatment, or appropriately manage his diet (the ten-year-old boy later died from heart failure associated with obesity). And when a father, who believed HIV was an invention of pharmaceutical companies, refused to give his child the antiretroviral medication prescribed by doctors. Not everyone will agree on the limits drawn around decisions parents are allowed to make. But most will agree that the public interest in protecting children means limits must be placed somewhere. And “risk of significant harm” doesn’t seem like a bad starting point. In addition to child protection laws, the Family Court will intervene in the parenting of children when asked to do so by parents who cannot agree on the relevant decisions themselves. In settling these disputes, the guiding principle is that the court will act to protect the “best interests of children”. But how do courts interpret this rather wide concept, and where do the limits of personal parental prerogatives lie when a court tries to strike a balance between the strongly held views of parents who bitterly disagree?

The particular case

In the case that has provoked so much comment, the Family Court decided that despite the fact the child’s mother was his primary carer and was “utterly dedicated to the child’s needs”, it would be in his best interests to live with his father.

The Family Court will make parenting decisions when asked to do so by parents who can’t agree on the decisions themselves. from shutterstock.com The orders were influenced by the mother’s preference for the advice of her naturopath over an accredited medical practitioner, which the court found was to the detriment of the child; her “conscientious objection to vaccination”; and her “clear and unwavering belief that the child obtains nothing from an ongoing relationship with his father”. The father, on the other hand, appeared to the court to have a better view of the child’s medical needs and was “the parent more likely to support [the child] in his relationship with his mother”. Among the 45 orders the court made were two proposed by the mother – that both parents be “restrained from smoking in the presence of the child” and that they will refrain from consuming alcohol “to excess”, or at least to the point of being unable to drive, while the child is in their care. The father agreed to these, in a suite of orders in which his interests mostly prevailed. These are known as “consent orders” – and they’re quite different to coercive interventions under child protection laws. In fact, health-related agreements are becoming a common feature of consent orders in a culture that increasingly values health and wellness, and in which many parents are likely to want assurances from the other that their child will be in a “healthy” environment when not in their care. These kinds of concessions are negotiated in families every day of the week – “take Harry to the physio”, or “please can we not have pizza again because last time Sam got sick”. In this sense, consent orders reflect familiar family compromises and the parents’ own values – rather than an out-of-control nanny state imposing orders on passive parents. It’s just that these fairly unremarkable agreements have been written down and stamped by the court because goodwill has evaporated and parents no longer trust each other to honour everyday deals.

The long arm of the law?

Indeed, the most interesting aspect of this case is perhaps not the agreement by both parents not to smoke in front of their child or get so drunk that they can’t drive, but that in determining a child’s best interests, the overriding priority for the court was securing “the benefit to the child of having a meaningful relationship with both of the child’s parents”. To many people the idea that a father who had never been in a stable relationship with the mother and had little previous involvement with him should be entitled to a relationship with the child to the extent that his mother’s role as primary carer was lost, would seem ludicrous. But the Family Law Act takes the position that a relationship with both parents will, in the absence of risk of harm to the child, be considered paramount. With regard to smoking and drinking, there was agreement between the parents with the imprimatur of the court – rather than an order being “imposed”. The most serious issue that remained in dispute was the child’s right to a relationship with both his parents – and this was where the court really did impose the values of the Family Law Act. Otherwise, unilateral state intervention is reserved for much more serious cases where significant harm is in the offing. So, you can still have a smoko while your child is at home without fear of being touched by the long arm of the law. The Conversation

Sascha Callaghan is Lecturer in Health Law & Bioethics at University of Sydney.

This article was originally published on The Conversation. Read the original article.

The Sydney Neurolaw Project

The Sydney Neurolaw Project based at Sydney Law School, has finished work on a  detailed “neurolaw” reader and case law resource.  The resource maps the terrain of the emerging field of neurolaw, providing a guide to current practical questions in law that are directly affected by developments in neuroscience research.  We are also developing a case law data base, which is a collection of cases indicating the uses of neuroscience evidence  in Australian courtrooms.  The resources will lay the foundations for a broad research program in neurolaw based in the Law School, and a related new postgraduate Unit of Study in Neurolaw, to be offered in 2016.  Both the unit of study and the research program more broadly, touch on issues of legal capacity and responsibility for people with neurological and psychosocial impairments, and human rights and discrimination affecting people with mental impairments.  We also look at the legal uses of neuroscience for people in the general population.  This includes proving “invisible injuries” in court – such as pain, or psychiatric injuries like  Post Traumatic Stress Disorder, and the role of neurological “proof of consciousness” in end of life decision making.   We look at potential stigma associated with brain-based explanations of human behavior, and its treatment in discrimination law, the impact of judge’s psychology on the curial process, and areas in which empirical research is still needed to develop appropriate “evidence-based law”.

For more information on the Sydney Neurolaw project, neurolaw research, or postgraduate coursework, please contact Sascha Callaghan.

Neuroscience in Australian Courtrooms: Responsibility, Liability and the Capacity to Punish

On the 25 June, we hosted the first Sydney Neurolaw Workshop:  Neuroscience in Australian Courtrooms: Responsibility, Liability and the Capacity to Punish at Sydney Law School.   The event focused on how new understandings of the brain and mind from the developing neurosciences, impact legal concepts such as responsibility and capacity, discrimination law, and even the process of judicial decision-making.  Four speakers across neuroscience, philosophy and law addressed various aspects of these questions, with an interdisciplinary panel of specialist commentators from general and forensic psychiatry, criminology, philosophy and the legal profession.

The workshop included contributions from the Brain and Mind Research Insitute’s Professor Max Bennett, Professor Nicole Vincent from Georgia State University, and Professor Neil Levy from Oxford University. It also presented an opportunity for early career researchers to showcase their work, including Dr Michael Sevel from Sydney Law School, and Dr Karen O’Connell from the Faculty of Law at UTS.  The event attracted  over 100 attendees from a broad cross section of universities and professional fields, including the NSW Bar, several law firms, Legal Aid, Justice Health NSW, NSW Drug Health Services, the Kirby Institute, the Commonwealth Administrative Appeals Tribunal, the NSW Civil and Administrative Tribunal, and a number of Sydney hospitals. The university received excellent feedback after the event, and was a great endorsement of the broad interests and applications of  brain and mind research, and particularly its implications for law.