LEGAL IMPLICATIONS OF PSYCHOSURGERY (FROM ISSUES IN BRAIN/BEHAVIOR CONTROL, 1976, BY W L SMITH AND A KLING SEE NCJ-57467)

• NCJ Number: 57471
• Author(s): R F JOHNSON
• Date Published: 1976
• Length: 13 pages
• Corporate Author: Spectrum Publications, Inc
• Publication Format: Document
• Publication Type: Report (Study/Research)
• Language: English
• Country: United States of America

Annotation

A REVIEW OF CASE LAW IS PRESENTED DEALING WITH THE LEGALITY OF PSYCHOSURGERY AND THE ISSUES OF INFORMED CONSENT, CONSENT OF INVOLUNTARILY DETAINED PERSONS, AND SOCIETY'S RIGHT TO IMPOSE SUCH SURGERY ON ITS MEMBERS.

Abstract

SERIOUS LEGAL QUESTIONS ARE RAISED BY THE CASES INVOLVING PSYCHOSURGERY ON INVOLUNTARILY DETAINED PERSONS: (1) THE LAW OF CONSENT AS IT APPLIES TO AN INDIVIDUAL WHO 'CONSENTS' TO PSYCHOSURGERY OR REFUSES PSYCHOSURGERY, (2) THE RIGHT OF SOCIETY TO DEMAND SURGICAL INTERVENTION TO ALTER BEHAVIOR OF CRIMINALS, (3) THE LIABILITY OF THE SURGEON DURING EXPERIMENTAL PSYCHOSURGERY, (4) EFFORTS TO REGULATE PSYCHOSURGERY AND TRENDS IN THE LAW, AND (5) THE DISTINCTION BETWEEN EXPERIMENTAL SURGERY (DESIGNED TO GET DATA) AND INNOVATIVE SURGERY (NEW AND UNUSUAL PROCEDURES DESIGNED AS TREATMENT WITH ACCUMULATION OF DATA AS A SIDE BENEFIT). A REVIEW OF MEDICAL LITERATURE REVEALS THAT THERE IS NO UNANIMITY OF OPINION AMONG SCIENTIFIC INVESTIGATORS AS TO THE BENEFITS OR RISKS CONNECTED WITH PSYCHOSURGERY, AND THIS SCIENTIFIC UNCERTAINITY HAS NOT ESCAPED THE ATTENTION OF COURTS. DECISIONS IN SEVERAL CASES ARE CITED WHICH, WHILE SUPPORTING MEDICINE'S NEED TO ADVANCE AND EXPERIMENT, DENY THE RIGHT OF DOCTORS TO USE SURGICAL EXPERIMENTAL PROCEDURES THAT VARY TOO RADICALLY FROM THE ACCEPTED METHODS. TORT LAW ALSO DEMANDS THAT PATIENTS GIVE INFORMED CONSENT FOR AN OPERATION (INFORMATION REQUIRED FOR INFORMED CONSENT INCLUDES A DESCRIPTION OF THE AILMENT, ALL POSSIBLE OUTCOMES AND EFFECTS, AND PROPOSED GOALS OF SURGERY). CONSTITUTIONAL GUARANTEES ARE ALSO THREATENED BY THE USE OF PSYCHOSURGERY--THE RIGHT OF PRIVACY PROTECTS AGAINST MEDDLING WITH A PERSON'S MENTAL PROCESSES, AND THE AMENDMENT AGAINST CRUEL AND UNUSUAL PUNISHMENT IS A PERSUASIVE ARGUMENT BARRING PSYCHOSURGERY IN ITS EXPERIMENTAL STATE. A LEGAL SOLUTION WILL PROBABLY REQUIRE THE COMBINED EFFORTS OF THE COURTS, THE LEGISLATURES, AND THE MEDICAL AND LEGAL PROFESSIONS. REFERENCES ARE PROVIDED. (DAG)