What might “brain viewing” technology mean for the law concerning consent and capacity

The article below shows how advances in medicine have permitted doctors to communicate with a man in what was believed to be a persistent vegetative state.  By looking at brain activity through MRI, doctors were able to ask the patient questions and interpret the brain activity as yes or no responses.  Most importantly, they were able to determine that the patient was not in pain, allowing him a direct say in his care. 

While good news in and of itself, this advance, and those that are certain to follow, will undoubtedly impact on how some personal care decisions will be made in future.  In circumstances where medical professionals and a substitute decision-maker at are odds regarding the care of a loved one, in particular in dealing with end of life issues, wouldn’t it be wonderful if we could ask the patient.  While the circumstances of this gentleman’s state of health appear to be quite different from those that the Supreme Court of Canada will be dealing with in the Rasouli case or Desmond Watson’s situation, perhaps one day the role of the courts in these matters will be but a memory. 

http://www.thestar.com/news/canada/article/1287098–vegetative-ontario-man-scott-routley-talks-to-researchers-through-brain-scans

http://www.theglobeandmail.com/life/the-hot-button/canadian-patient-could-change-thinking-on-brain-injury/article5227276/

2 Comments to “What might “brain viewing” technology mean for the law concerning consent and capacity”

  1. Perhaps one day the role of the courts in end of life cases will be but a memory but I doubt it — and I’m not expecting any letup in this area of my practice until:
    [a] every Canadian not only has an advance directive but has also reviewed the content of it with the persons who will have to consent to the decisions to be made!
    [b] health practitioners obtain consent that is truly informed.

  2. I am very skeptical about the results reported in these stories. There are huge, multiple layers of interpretation and theory between brain changes crudely recorded by MRI machines and cognitive responses. Even the metaphor of parts of the brain “lighting up” is misleading; what is recorded is parts of the brain heating up slightly from increased blood flow, which these scientists claim to be able to “translate” into answers to complex questions like “Are you in pain?” I just don’t believe it.

    This is very speculative science and I would not be surprised to see it debunked rather quickly. One should always be suspicious of scientific results that are first reported in the popular press rather than in scientific journals.

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