Neuroethics: Why Be Practical In Practice? | 1

Where Neuroanatomy Meets Legal Capacity & Consent (UK & US legal carryover):

By R. McMillan, with contributions from M. Mortimore, J.D., attorney at law.

This article challenges a premise - that the student of law, science or medicine, need only deal with ethical questions in a vacuum; one in which the details of the scenario itself are not available, and only ethical theory is on the table.

Neuroethics is contingent on the reality of human anatomical functions, and medical and legal frameworks are likewise based on real world circumstances. This article operates as a case study, concerned with a medico-legal context and its neuroanatomical underpinnings.

Let’s start with our key definition:

An ethical dilemma is a choice between competing actions, none of which appear to offer a fully satisfactory moral outcome. The resolution of this conflict is rarely ever optimal, as the real world seldom allows it to be. 

In reality, facts are available to medical and legal practitioners which flow from actions and observations, as made by them in response to a given scenario.

Broadly, this is no different from decision making based on the discovery of information and its interpretation.

LUCIDA VISIONIS has produced an article on the Specificity of Words & Nerves which explores the interpretation of language at various levels of detail, and why these are significant to human perceptions and our sense of meaning.

The ethical question absent actions and observations however, is an exercise for the sake of exercise, and fails to take the case by case. It is a static question, absent the clinical rounds needed to found, or to adjust it, how and when a patient’s status changes. 

It is crucial to medical and legal processes that information be as complete as possible. Unsurprisingly then, it is significantly more useful that practising for efficacy in the real world seek to flesh out the facts as a dynamic between patient status, clinical ethics and legal foundation. In effect, to think as if this were a real instance of medical or legal practice.

But why establish this in any detail, and at the cost of efficiency… In practice, the observations made by each discipline interact, and gaining mental practice under the assumption that they interact bears closer resemblance to reality. Of course, this is no different to weighing up the nuances of a decision in the real world when it has ramifications for one’s life, or the life of another.

Ethical questions as academic primers are of course just that, they prime discussion. That such details can wait until the student comes into contact with them in employment however, when the real world deals a baptism of fire, is a questionable ethos.

Fortunate medical students and anatomical students are challenged by their lecturers, so there may be continuity between their deliberative and deductive skills into clinical residency or education / research. This actively improves their diagnostic and educative abilities. Among clinicians, it is well known that the information concerning diagnosis is not limited only to symptoms.

For example, a complete history of the patient will ideally include the patient's occupation, simply because this may have implications for clinical status. Likewise students of science are directly challenged by those tutors who have a genuine interest in the deliberation of evidence and methods, and what can be deduced via experiment and dissection (e.g.) not only as a means of academic evaluation.

Scientific experiment and the diagnostic method are methodical tools, wherein information is derived from the real world, and which will almost always carry practical value, superseding information for information’s sake. This is arguably, equally true of tutoring medical sciences and legal study, as deliberation precipitates a careful and comprehensive consideration of the facts.

How Medicine & Medical Law Function:

Experience of the facts at hand in an ethical scenario, are dealt with in overlapping and yet also disparate ways within medical and legal practices. 

In legal practice, the analysis is dependent on the pattern of the facts as they have occurred, and to distinguish what their relevance is to an event that has also already occurred. Medicine is not dissimilar in these broad terms, but its analysis is made through scientific and clinical techniques. These of course are intended to infer, deduce and falsify the presence and particular presentation of a pathology or trauma, and how to manage this for the good of the patient. Precision and expertise which are conducive to a patient’s survival is the clinical concern, whilst the legal is how each party is protected, yet also where the exception to a legal rule is required.

Both practices consider the consequences of these factors, but never without the opportunity to derive more information than is immediately available. Doctors run tests, legal practitioners consider how the facts of the patient’s status might interplay with the law and warrant intervention. Law and fact are not synonymous. The scenario discussed here aims to describe how their interaction is of practical concern to the medical, scientific and legal process. The scenario is as follows:

A female patient is hit by a drunk driver and sustains substantial blood loss, several broken bones and a partially crushed skill with an intracranial bleed. Paramedics reported the patient as in and out of consciousness en route to the hospital, but by the time of her arrival she had regained full consciousness. The treating physician explains to the patient that their life is at risk and they need a blood transfusion and brain surgery immediately. However, the patient verbally communicates that they are a Christian Scientist, that they believe in the healing power of prayer, and that they wish to be discharged immediately so they can consult a Christian Science Healer.

An emergency conference room meeting by the surgical staff reveals a consensus - that failure to relieve pressure caused by her intracranial bleed will result in loss of consciousness within a few hours, and likely her death. When this information was provided to her, she remained steadfast in her desire to seek a Christian Science healer. When hospital staff inquire into next of kin, the patient explains that they are a widow with no living relatives except for seven dependent minor children, ages 1 through 15.

The patient’s faith remains subject to an ‘electric sea’, a term coined by the neurosurgeon Henry Marsh. The brain’s tissues underlie conscious and unconscious functions, and the metaphor is made in light of the many patients which must undergo anaesthesia during surgery. Of note is that the scheduled excision of a tumour differs greatly when compared to surgical interventions for acute trauma. Especially when consent is ambiguous. 

At face value, the default legal basis for a scenario like this is simple…

As long as the patient understands the consequences of refusing treatment, informed consent is fulfilled. This satisfies the patient’s wishes. This is also however, where ethical theory comes into contact with clinical concern.

We know that the patient has requested to be discharged, and has communicated the conflict between the medical aid being offered to her and her religious beliefs.

However, the fact that she has no less than 7 dependents, aged 1 to 15, introduces uncertainty and room for deliberation regarding the best course of action. How the extent of her injuries may have impacted her capacity to make this decision also draws the weight of clinical analysis into the equation. Within these margins of uncertainty, ethical nuances are brought to the fore, becoming the only means of resolving the dilemma to within a reasonable and justifiable degree of certainty.

These margins are narrowed however, by clinical information, and how such information informs the legal basis of any medical decision.

The decision is of course time sensitive, and falls on whether or not to render aid when the patient loses consciousness, which is inevitable due to the severity of her injuries.

The main issue with the ethical question posited is that, if it is to be representative of reality, and so have practical value, it cannot be considered within an ethical vacuum.

This means that the weight of clinical evidence becomes of direct concern to any legal contingency, and any ethical argument which deviates from the protocol of medicine underwritten by law.

This article is a discussion of how clinical evidence and law cannot be considered ethically, without information pursuant to reality. This in no uncertain terms includes a relevant sample of scientific and legal precedent, because these respectively underlie the practice of medicine and law.

As we shall see, the medicine and law in such a scenario directly underlie and interact with each other.

In the UK the Mental Capacity Act of 2005 (the USA may vary marginally from consensus according to state law) if a patient is to either refuse or consent to treatment, they have to understand what the treatment entails. This means exactly that the patient is capable of retaining the information, able to weigh the consequence of their choice, and able to communicate this. Capacitous refusal of treatment is predicated on communication of consent, and that consent is based on a meaningful comprehension of the ensuing consequences.

Capacity is assumed unless there is clinically meaningful evidence to the contrary, such as an inability to communicate, which is by medical law equivalent to a loss of mental capacity. However, this does not mean that the patient’s communication of her wishes by means other than verbal, are not a demonstration of autonomy, pursuant to either consent or refusal of the patient to receive care.

In briefly differentiating the legality of patient capacity here, we can already see how the clinical scenario and its legislative detail are wholly necessary to practical ethics, wherein the ethical method is applied to a real world scenario in which there is high risk. In this vein also, the specificity of language in each domain focuses the issue at hand. Let’s explore how…

It would be a contravention of medical protocol and law to assume the patient does not have capacity only because their decision goes against their welfare, or is unwise.

However, if there is a consensus as to the unwise nature of a decision in this regard, it may be used in combination with evidence that the patient does not understand their status, or does not wish to understand, in order to argue the patient’s capacity is compromised. In this case, it could theoretically be argued, albeit with some difficulty, that the patient’s religious beliefs prevent them from being able to understand the inevitable outcome of the scenario, and that her situation is fatal if she does not receive immediate medical care.

Conversely however, the clinical evidence may be used to argue that the patient has capacity, despite the presence of a neurological disease which presents as cognitive impairment, providing the medical evidence demonstrates this…

Under the mental capacity act for example, a person cannot be said to lack capacity by default - solely because they have a diagnosis of dementia, and their capacity must be based on evidence derived from a neurological examination.

This does not mean of course that their capacity is not demonstrably impinged by dementia. The rub lies therefore, in the space between medical and legal concern. A space which cannot be reached in and of the ethical question.

The degree to which clinical evidence may affect the patient’s capacity becomes the key medical question, and will almost certainly aid the legal argument, whether it is for or against the patient’s choice. Time is also crucial however.

The acute nature of the patient’s trauma means that her consent needs to be expedient, and as such, there is little to no time available for her to reconsider, nor for the medical staff, who have a shared but limited duty to persuade her to receive care. However, the surgical staff may also conclude that surgical intervention is not ethical because with all the will in the world, the efficacy of care may not be capable of meeting her injuries.

The fact that the trauma is to her brain brings about the immediate need for surgery, and is the direct cause of any potential loss of her capacity. The question is to what extent, but there is no doubt as to the aetiology, that is, the causation and implications of impaired cognition by bleeding within the brain. 

The legislature bases itself on this premise.

That psychoneurological capacity forms the core of legal contingency in the UK is clear. But is based on clinical principles of analysis. Once more, we see the ethical reality is informed by a rich body of information, whereas the ethical idea is by itself an isolate.

Section 2(1) of the Mental Capacity Act stipulates that:

‘A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance to the functioning of, the mind or brain’.

Under UK law, mental capacity is demonstrable by way of medical examination, and comes down to the combination of these 2 tests.

These are the functional test and the diagnostic test. Dementia falls within the diagnostic test criteria for example, but does not include decisions based on religious beliefs. Under this test it must be shown that the patient has an impairment which affects the function of the brain. 

The functional test criteria have been mentioned in the rudiment of this article. They are that: the patient must understand the medical procedure at its most basic level and its purpose, must be able to comprehend the consequences of both the medical intervention and a decision to decline, must be able to retain this information, and communicate their decision.

All practical steps must be taken to allow the patient to communicate, and allow the criteria of each element to be fulfilled. Given the patient in our scenario is conscious, we can assume she is relatively lucid and capable of verbalising her thoughts.

It has been explained to the patient that her life is at risk. The potential gap in our information, albeit only potential, rests in part between the doctor’s communication of the patient’s circumstance to the patient, and the patient’s assertion that she does not want medical care. The rationalisation for rejection of care is her religious belief, but the declaration of her belief is no demonstration of diagnostic and functional competency in itself, yet neither is itself a legal basis for mental incapacity.

If however, the patient did not fully understand that they have suffered an inevitably fatal trauma, which in this scenario is to their central nervous system (the organ which defines medical and legal evidence of a person being alive), or their response implies that they do not wish to accept this fact, either of these would serve as a justifiable basis for impaired capacity.

In the next article in this series, we shall begin to tie the neuroanatomical and neurological science in with the medico-legal discussion, and explore the tangible implications of these.