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– life life decisions; free will; se l provide, at the beginning, l a provide, at the framework of beginning, case law - of - ole of neuroscience and per per focuses on the use of neuroscientific acquisitions life decisions. life decisions. New anthropological challenges for constitutional law constitutional for challenges anthropological New decisions. life - The article subjectwas todouble a peerblind process. review -

Giada Ragone, Benedetta Vimercati . of - of -

Rivista di BioDiritto, n. 3/2017 BioDiritto, di Rivista 5. Free will and neuroscience: a possible coexistence?

– – mental mental state of individuals and their inner world through an elec- 2. 2. The end of life rights in case law and legislative attempts

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objective dichotomy – life life decisions, aiming to highlight two risks embedded in this use: the

- the perception the of perception pain, the presence of consciousness and even the will ; Benedetta Vimercati: Research Fellow in Constitutional Law at the University of Milan.

- life life regulatory attempts; it will follow the analysis of the main challenges of - -

Nowadays, Nowadays, neuroscience permits the unveiling of interior elements of hu- : Neuroscience; end of

: - and 7. Section1 was drafted together. life decisions?

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determination. The wil determination. paper

- he he recognition of human and fundamental rights and the concrete dynamics of their pro- tection are driven from an ineradicable anthropological question. During on Declaration of Human Rights, Malik claimed: «The very idea of the rights of man means - Ragone: Research Fellow in Constitutional Law at the University of Milan. Email: 1. Introduction Neuroscience and end and Neuroscience in in the absence of external manifestations. Physicians, indeed, seem capable of : BSTRACT

EYWORDS

K dignity self and end posed to law by advances in neuroscience. In the latter part of this paper, we will of- fer food for thought on the r law. science in troencephalography troencephalography or a functional magnetic resonance imaging. This new frontier affects the world of law and places heavy demands for lawyers embroiled in end life matters. The present pa within end utmost deference towards science and scientific authority and the maximization of A man beings - measuring the true [email protected]

Giada UMMARY

for constitutional law: Human «Is Nature onlythe science man»? of Although it had a unitary conception, Giada Ragone drafted sections 3 and 4; Benedetta Vimercati drafted par- agraphs 2, 5, 6 answer answer to the nature and essence of man» * [email protected] Email: T that man in his own essence has certain rights; that, therefore, what we are going to elaborate must the capability of “reading minds”: new challenges for the world of law ence in end and law. The 1. Introduction S

Neuroscience and end

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Call Giada Ragone, Benedetta Vimercati relates of Behavioral of relates fa- most the (see Pepsi” v. “Coke of experiment McClure the is One neuromarketing of experiment mous preferences. consumers’ predict to and measure to order in minds reading of ability the and neuroscience with behavior consumers’ of study the bridges that field a romarketing, 3 61 vol. 2010, 6, 2 declaration 1 the power, that on limitations eventual the and patient incapacitated or incompetent the of behalf sustaining treatment,possibility the to establishpower a attorneyof to healthcare make decisions on th treatment, discontinue or refuse to right the of existence the unravel: to had case Englaro Eluana the on pronounce to upon called were who judges the that issues legal of tangle the system, legal Italian the at looking consider, only need We detail, of matter a actuallythey affectthe very basis whichon constitutionalbe to seem issues legal these when Even judgments. value to tied closely tions a may end address to on called aresystems legal Whenever 2. tive t for food offer will we paper, this of part latter the In neuroscience. in advances by law to posed challenges main the of analysis the low provide,frameworkbeginning,theatwill andlawa caseend of self of maximizationthe and authority scientific and science towards ence end and acquisitions scientific to aims paper present the this, end in embroiled lawyers for demands heavy places frontier new This selves (such as infants, people incomas, severely disabled people, etc.). a nowadays are externalized, be not could they becauseunfathomable once patients, incompetent of wishes the and consciousness of presence the mediation for need the without person human the of aspects certain close pos the is techniquesneuroscience of development the by law far the to posed challenges most the of one Indeed, will. patient’s incompetent the determining to neuroscience assessment pain patient of role the death, brain of determination clinical the in neuroscience of application the in factored behaviour human and beings human with cerned consideredbeGenerally,neuroscience shouldand “natural law alsoes inthescope of the end emerges

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the - Art. 13 Cost. states that «personal liberty is inviolable». See The The importance of information in the physician and patient relationship is an issue dealt with often. It also Art. 32.2 Cost.: «No one may be obliged to undergo any health treatment except under the provisions of the Art. 2: «The Republic recognises Declar

N.M. medical practice in the social groups where human personality is expressed. The Republic expects that the fundamental duties political,of economic and social solidarity be fulfilled». 8 Medical Association at Lisbon, of 9 represents a duty for the physician to perform in order to avoid civil or criminal liability. See, in this sense, http://www.giurcost.org/decisioni/2008/0438s 5 lawlaw. The may not under any circumstances violate the limits i 6 www.forumcostituzionale.it 7 mation or the ability to communicate a choice. communicate to ability or the mation 4 twined twined with the patient’s capability. It is necessary that the patient is or was able to express his will. The law does not deny some citizens the right to self pecially nonetheless, the legal system needs to figure out how to protect those who lack the cognitive and legal capacity to understand the decision’s consequences, the abilit by the word “informed”, entails complete and comprehensive information provided by the physician to the patient about the proposed treatment options (potential benefits, risks, any available altern tive treatments and so on) the principle of autonomy that allows the patient to determine what would be good or bad for him. But the exercise of this right to make decisions about one’s but but also the right of the patient «to mation» accept or refuse treatment after receiving adequat Alongside the positive and negative implications (accepting or refusing) inherent in technical a informed components: interrelated but of two different core of a twofold made up is right sent, this con- component and that a moral a component other fundamental rights such as othersuch rights the fundamental right to h (art. 13) self toright Informed consent, acting as an ins context, involves the right of the patient to be informed about a procedure, surgery, or treatment, definition definition of therapeutic obstinacy or medical futility and the qualification of artificial hydration and supports. or life treatments medical as nutrition Within the Italian legal system, the Constitutional Court decision n. 438/2008 point the of with judicial cases. a In judicial evolu- for result that dealing and judgment, long troubled tion, the Constitutional Court recognized informed consent as a fundamental right that stems from

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Call Giada Ragone, Benedetta Vimercati strumenti di attuazione del diritto costituzionale all’autodeterminazione terapeutica all’autodeterminazione costituzionale del diritto attuazione di strumenti in 2009 ( interest best patient’s the of strength the on guardian as appointed be Italian few a In true. always not is this But says. guardian the what and will patient’s the between harmony better a guarantee probably can unit 13 cassazione 12 2011, 73 Serious Raises 11 cassazione 10 sostegno di tore Italy, in is, (that ward his of will the express to upon called guardian in to stated Cassation able of if Court Civil done the have (as himself would for patient choose the what exact, more be to or, wanted” have “would himself law case through ly ItalianThe legal system has tried to protectself a distin determinationfreedomprotect.orArticle Constitution the 32excludes to of of the possibility making self of issue no is there will, any express to unable is person the Since latter. the of favour in solved self freedomand ofright the isperson the«if that added also Cassation ofCourt the But sciousness concei of way his/her to corresponding convictions, and lifestyle personality, his/her ob- from evidence,or statements his/herconvincing from tained and univocal clear, of basis the on represented, the of voice the presses th one, subjective a circumstance, second the world; external the of perception a to return and consciousness of recovery feeble, if even any, of possibility imum recog standardsscientific the following basis, medical no was there that and opinion, clinical strict of basis the on irreversible, certainly be to has state vegetative the of condition the that was one, objective cir two affirmedthat Cassation ofCourt Italian the support, dration from a young woman inapersistent vegetativestate. In order to authorizethe removal life of iss The submitted to the Italian Parliament butnone of them has yetbeen passed. end bills Englaroseveral on case, the of situation.result the a inAs whatsoever leg uncertain an in proceeded national the concerns what for end system legal Italian the in reached place” “landing latest the ered case Englaro Eluana of content core the represent can fathomable end concerningproblemsthe ofset The

See Sent. Cass. civ. no. 21748 del 2007, available at at available 2007, del 21748 no. civ. Cass. Sent. See See at available 2007, del 21748 no. civ. Cass. Sent. See In this last event, some legal and medical contributions assert that choosing the guardian within the family family the within guardian the choosing that assert contributions medical and legal some event, last this In - of nized at the international level, that allows the supposition that the person may have the min- the have may person the that supposition the allows that level, international the at nized T. - ue raised by Eluana’s plight concerned the withdrawal of medically assisted nutrition and hy- and nutrition assisted medically of withdrawal the concerned plight Eluana’s by raised ue ction between life worthy, and not worthy of being lived» lifedebate (asis it a landmark right

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, Italian Constitutional and Cassation Courts: When The Right To Die of An Unconscious Patient Patient Unconscious An of Die To Right The When Courts: Cassation and Constitutional Italian ) 13 ; last, as mentioned above, advance directives or a living will. Nonetheless, the ex the Nonetheless, will. living a or directives advance above, mentioned as last, ;

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determination, and the right to l to righttheanddetermination, al environment, currently there has been no substantial improvement substantial no been has there currently environment, al decrees, judges decided to reject the request of an incompetent’s relative to relative incompetent’s an of request the reject to decided judges decrees,

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ILSA Journal of International & Comparative Law Comparative & International of Journal ILSA V al ww.biodiritto.org/index.php/item/187 IMERCATI cumstances needed to occur: the first, anfirst, the occur: neededto cumstances non composmentis non –

the Englaro case); second, the second, case); Englaro the Rivista di BioDiritto, n.3 ife is only hypothetical and must be re-be hypotheticalmustand isonly ife rqet f eoa ut rl ex- truly must removal of request e 12 , . osno nomt e naaià gli incapacità. e informato Consenso 10

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Testamento Biologico. . , in 16 his his wife and some of his siblings but opposed by the par-

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on February 2014, in a chronic vegetative state, and he required enteral

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affirmed that, affirmed as stated in the Public French Health Code by amended the Leonetti

Advance decisions: theworth paper they are (not) written on? doubly doubly

the the consent must be interpreted not as a chronological actuality but rather as a logi- , – Conseil Conseil d’État Principle at or Process the End of Life? Scelte di fine vita determination determination and yet protecting incompete , - truction truction of the patient’s will, the living will and the guardian options are highly problem- , BioLaw Journ BioLaw , it may entail problematic and weighty implications. Fi UXTABLE Neuroscience and end and Neuroscience 14 . This view, however, does not entirely overcome this critical flaw. In order to soothe this

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end into a political and legal battle. 14 15 47. 2005, 16 paper,this the author eight examines problems concerning advance directives. 17 artificial artificial nutrition and allowed hydration by family of the rest the ents and The Loi, «the legislature intended to include among the forms of tr been been a French case, known as t behalf of an patient, incompetent Vincent Lambert, a French citizen who lacked a living will express- ing his desires and neither had appointed a guardian. He was, according to the dered medical by the re nutrition and hydration supports to be kept alive. The juridical case arose with the withdrawal of the informed about the specific treatment. specific the about informed During the last few manydecades, legal systems have had to tackle the problem of guaranteeing the right to self common. in have systems legal many that issue is an this world, the across case law Within the European context, one of the most recent and most highly controversial court cases has struction struction of one’s will, despite the request of clear and convincing evidence of the patient’s wishes. This is the paradox of the “retrospective consent”: personality, used for the scrutin will, becomes medicine is not simple consent, but informed consent. And the aforementioned instruments, in par- ticular retrospective consent and prox provision has been discarded in the latter draft the latter in discarded has been provision The ex post reconstruction and the guardian option might adopted cause together. In particular, the similar challenge involves the risks p linked to using a “retrospective con- sent”. Notwithstanding an appropriate recourse to the ex post reconstruction of the patient’s will, the judge or the guardian could ality of the informed consent. As a consequence of this basic shortcoming, some authors argue that the actuality of cal one problem, during the debate on the draft bill concerning end of life de decided to add the provision whereby advanced directives will become invalid after 5 years; but this post post recons atic. Even if an advance decision «tends to be viewed as the gold standard expression of precedent au- tonomy» a prerequisite for the validity of consent as a whole, legal this instrument guarantee the cannot actu-

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Call Giada Ragone, Benedetta Vimercati in’ proa, ujcie enn. n on s, ugs stres judges so, doing In meaning. subjective personal, tient’s file» medical patient’s the to added 22 is and reasons by no. Application France, v. others and of Lambert Case Chamber, Grand (ECHR, accompanied be must itself decision the and count The decision. the takes alone who patient the of charge in doctor the isit patient), the to close those or family the trust, of person the doctor, other one least at team, care the (with i law French under procedure the although that, observes Court «The 2: art. with compatible be to personnel medical other as well as patient the to close 21 20 manifestly from serious a and constituted «had Lambert Mr. hydration and nutrition artificial withdraw to decision the that opined fact, in Court, Administrative The the by said was what with consistent is decision Court’s European The applicants. the to available been had remedies th (including view of points all eration consid- into taken had process the that out pointed judges The 168). (par. State the of appreciation of margin person 19 of palliatifs soins de internationale Revue 2011, Paris, n 18 so a challenge: this tackling in courts the by pursued proaches t us help cases Lambert and Englaro the of survey brief This as es, corroborated by statementsproduced before thedomestic courts» wish- his of informed and confidence husband’s her into taken been «had wife Lambert’s d’État: seil w what of heed due took Court the wishes, patient’s of reconstruction the regards As provided. care the to reacted Lambert Vincent that suggesting signs of existence the and brain the of nature irreversible cl and the damage of analysis the through condition, clinical the of examination the and will patient's the of reconstruction the with extensively dealt judges The purposes. our for investigatedthe judgment,EuropeanAssumingtheCourt mul andprotection the of their right to respect for their private lifeand their personal autonomy» tion apprecia- of margin a afforded be must States (…) life of end the concerning sphere this «in that ed stat-judgesConvention,EuropeanEuropean the to PartiesStates the consensusamong a of absence le French by required procedure the hydration under and nutrition artificial of withdrawal the that concluded Court European the 2015, June on delivered decision, Chamber’s Grand the In life). family and private to (right 8 art. and torture) of ( 3 art. life), to (right 2 art. alia, inter as, such Rights Human of Convention European the of violations multipleclaiming Rights Human of CourtEuropean the of front in brought was case The bewithdrawn wh accordingly may and acts of category this into fall hydration and nutrition Artificial artificially. tions func- vital patient’s the maintain to seek which acts all obstinacyunreasonable of grounds on drawn o

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ECHR, Grand Chamber, Case of Lambert and others v. France, Application no. no. Application France, v. others and of Lambert Case Chamber, Grand ECHR, See The Judges investigate some of the most fundamental principles of our constitutional system in light of the pa- the of light in system constitutional our of principles fundamental most the of some investigate Judges As asserted by the ECHR, ECHR, the by asserted As 2005 life debate in France: from solidarity to autonomy fromto solidarity France: in life debate

(…) as regards the means of striking a balance between the protection of patients’ right to life to right patients’ of protection the between balance a striking of means the regards as (…) R. Court found the procedure consisting in the determination of the patient’s wishes and consulting those those consulting and wishes patient’s the of determination the in consisting procedure the found Court

Conseil Conseil who makes the final decision, and the arrangements for the final making of the decision) falls within the the within falls decision) the of making final the for arrangements the and decision, final the makes who -

370 du 22 avril 2005, dite loi Leonetti: la Leonetti: loi dite 2005, avril 22 du 370 H UXTABLE 303 d’État - inical prognosis, Vincent Lambert’s capacity to communicate with those around him, around those with communicate to capacity Lambert’s Vincent prognosis, inical 368 ,

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, 2012, 3 2012, , e presumed wish of Mr. Lambert himself), and that effective domestic domestic effective that and himself), Lambert Mr. of wish presumed e « Leonetti s described as “collective” and includes several consultation phases consultation several includes and “collective” as described s - 4; gislation would not violate art. 2 ECHR 2 art. violate not would gislation BioLawJourn », un changement de paradigme qui demandera du temps du demandera qui paradigme de changement un », M. médicalisation de la fin de vie de fin la de médicalisation , in in ,

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26

for for example, if a person had strongly

196. - – t represents t example an of the represents role in science’s case law where d, religious d, beliefs, religious political and moral or convictions past behav- arlie’s arlie’s best interest for artificial ventilation to be withdrawn and life decisions. New anthropological challenges for constitutional law constitutional for challenges anthropological New decisions. life - best best interest test encompasses several criteria such as: the person’s of

- Rivista di BioDiritto, n. 3/2017 BioDiritto, di Rivista , 2007, 187

– . The 24 al al ngly ngly gaining ground in legal reasoning and in the solution of sensitive cases in- seems to be useless. useless. to be seems

ethics, and emotion: the Charlie Gard case Hard lessons: learning from the Charlie Gard case person represented on the basis of clear, concordant and convincing evidence, obtained , The The best interests standard for incompetent or incapacitated persons of all ages , life life decisions of incapable patients based” approach. Even though judges oftentimes pursue the libertarian approach the libertarian pursue oftentimes judges though Even approach. based” - - Law, , of To To that end it needed to have the fullest information possible at its disposal, in particular concern- - BioLaw Journ BioLaw

YER AVULESCU Is it in Charlie Gard’s best interest to die? Neuroscience and end and Neuroscience S , D

OPELMAN J. K

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, Mental Capacity Act, 2005, hereavailable See See See See Judgment of the UK Supreme Court in the case of Charlie Gard, 19 june 2017, paragraph 10, available L.M. This This is what happened, for example, in the Englaro case. Another example of the use of neuroscience is the aforementioned Lambert case when the UK UK

AVULESCU ing Vincent Lambert’s state of health. Accordingly, it considered it necessary before ruling on the application to order an expert medical report to be prepared by practitioners with recognised expertise in neuroscience». here: https://www.supremecourt.uk/cases/docs/charliehere: 27 KINSON S piccolo lesson Charlie Gard/The learned from baby Charlie Gard 28 firmed that « from from her personality, lifestyle and predispositions, corresponding to her way of thinking, before falling unconsciousness: of state the person’s idea dignvery of in the 24 nal of Law, Medicine andEthics 25 26 determination over other public interests that inform the constitutional framework, such as the protection of human life. 23 decision probably relied on the libertarian approach: as judges pointed out, the second condition for withdraw- ing a medical treatment is the provision that such request truly expresses the very idea of the personal dignity of the voice of the for his treating clinicians to provide him with palliative care only care palliative with him provide to clinicians treating for his The overview offered here demonstrates how neuroscience and the measuring the mental state of patients are increasi volving end one of the two approaches is out of reach were impossible to derive. In Charlie Gard’s case, scientific and neuroscientific evidence was order to ascertain, first of all, whether the experimental therapy is useful or futile (that in this case means pointless or of no effective benefit); secondly, that Charlie’s quality of life is one that is not worth sustaining and that it is in Ch iour or habits; other factors that they would be likely to consider if they were able to do so do to able were if they to consider be likely would that they factors other habits; iour or But it is worth noting that whenever the patient is person since birth, the first three criteria will turn out to be worthless. As a consequence, the latter information. neuroscientific) (and with scientific be filled it could used and be has to criterion Charlie Gard’s case is a in point. case I past past and present wishes and feelings this may shape their treatment; the existence of written statements that provide inf an individual’s wishes of how they would like to be cared for; the beliefs and values that would be likely to influence their decision if they had the capacity at an cultural individual’s backgroun more “science more this approach times When the patient lacks advance directives expressing his desires or when his will is unfathomable, a few national legal systems opt for the best interest test, defined as «an umbrella principle covering different kinds of usage»

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detectors or detectors hypnosis - See See See See G. Ivi B. Ivi , 3, vol. Milano, 1997, 253.

38 ci 34 35 tion on Human Rights 36 37 Wisconsin Law Review for personal liberty. for personal fundamental another be excluded, must not of neuroscience the related to use Finally, risks as health right potentially put at risk is the right to health: brain imaging, for instance, involves the use o 33 stitution (“Personal liberty”), there there does ofexist stitution of (“Personal a right liberty”), «intru- the from individual being protected sions into his psychic sphere, both with regard to the integrity of this latter [sphere] and with regard to the cludes his cognitive function. Consequently, we may wonder under which that allows conditions one to detect a this function can technique be considered legitimate, well: well: if scientific progress permits one to reveal someone’s thought in the absence of external mani- festations, it is necessary to provide the person (or someone else, i.e. a guardian) with the power of o opting Even personal liberty could be challenged by the new forms of brain constitutional literature, detection. it has been affirmed Within that, under th the Italian press press thoughts [...] is prohibited». As an example of compulsion, the comment mentions the use of lie that even the physical/mental phenomena involved in thinking fall under its ambit, we might admit that the use of the neuro dom of mind” damental rights. damental An interesting comment thought, conscience and religion”) reads: «It is true that thoughts, as long as they have not been ex- pressed, are intangible and that convictions are really valuable for the person concerned only if he can express them, but the freedom of thought), thought), and by providing new processual sought to employ cognitive methods neuroscientific and data as tools: evidence to influence legal proceed- indeed, «legal practitioners have increasingly ings» In relation to the first aspect, it is neuroscientific techniques represents simultaneously a potential ally and a potential harm for fun- imaging imaging can check mental signals that «can then be used to assess what brain regions are active dur- ing various mental activities, by hav something» These by new frontiers scientists reached affect the world of law both trickyby with raising re- issues gard to the implementation of some

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Call Giada Ragone, Benedetta Vimercati 45 44 ment See contract». valid a form to capacity cognitive been has neuroimaging disputes, contract admitted «in Moreover, cases». injury personal in causation) extent, lesser 43 Change Technological and 3.0: Freedom 42 47). (p. difesa» alla diritto del e garanzia tutela ampia più a tifiche, [...] comprendere a arrivare da tanto neur tecniche e le metodi essere i risultano attualmente quali ampio, [...], nuovo anche prova mezzo di qualsiasi significativamente perimetro dal prova alla diritto un di l’esistenza e nazionali costituzionali disposizioni delle disamina «Dalla affirms: thor 41 40 39 expert ernment’s that show to scan argued CT defense the which a atrophied, had admitted brain Hinckley’s court the There, 1981. in Reagan Ronald President assassinate neuroimaginganused beinginof trial standing of incapable defendant revolution this by affected most the purposes» of variety a for and cases criminal and civil both in tions, neuroscience of hearingfair a to right the Also sion, their freedom thought.of permit to way can it light, this thought» of freedomrealize fully to annexnecessary a «is thought of manifestationthe thataffirmed usually is It therapeutic self rig the even and hearing fair a to right the expression, of freedom the thought, of freedom the implement to chance a as seen be can also minds” “reading of capability the perspective, opposite impingemen potential the Although unresponsiveto patients, incapable giving of informed consent. appliedtreatmentsare these if trickier becomes issue thisthat reason to standsIt surgery. a through t encephalography of kinds those about said be cansame The innocuous. are theyuncertain whether is it and invasive are they time same the at but activity, mental detecting for useful are liquids these organ; cerebral the inside injected fluids trast

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and more generally the right to a fair trial fair a to right the generally more and

insanity defense is the case of John Hinckley, Jr., who attemptedto who Hinckley,Jr.,John of case theis defense insanity , Washington, 2011, Washington, , 43 t of the aforementioned fundamental rights is serious, from an from serious, is rights fundamental aforementioned the of t 44 . Just think about the use of neuroimaging in trials to declare a declare to trials inneuroimaging of use the about think Just . : as O.C. Snead reminds us, one of «the most famous example famous most «the of one us, reminds Snead O.C. as : BioLawJourn O.C. hat require the application of electrodes on the brain the on electrodes of application requirethe hat

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, in life life and scientific progress, it is worth remembering that «we are living at – J. -

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nd of life arrangements and instructions 50 E nuovo ruolo per l’amministratore di sostegno? G. determination? 2015,Univali, 99 49 havioral assessment dilemma? 46 can Journal of Law and Medicine 47 courage the use of P300 memory detection methods 30 crime 48 patients to withdraw life support? life support? withdraw to patients All these hard questions run into the world of neuroscience: even if neuroscientific techniques are not medical treatments (and surely not measures), they lifesaving are diagn to better understand the real condition of an unresponsive patient and to distinguish between a co- gitimate gitimate medical treatments? And when, on the contrary, would they be forms of “therapeutic per- sistence”? What are the to have limits the medical care? to If right no receive that doubt physicians a patie coherent with the fundamental duty of protecting life or, differently, does this constitute a violation of human dignity? In absence of a living will, when shou termed termed “life” purely in terms of physiological function» permit saving human beings (and keeping them alive for years) even after awful accidents or m pathology. On the other hand, it can happen that patients survive but questions which of practi- raises hard one state. for latter This scenario the is the worst unresponsive in desperate conditions, of cal jurists (and for physicians as well): when ca 4. When dealing with end be- Now, death. unlike with [...] relationship our revolutionized has progress scientific which in a time extraordinar fore, we [...] receive can tional neuroimaging may prove to be most valuable, as a unique clinical tool for probing volition [...] without necessarily assuming that the patient is able to produce any motor output» ample shows that, although the use of evidence neuroscientific is usually studied in relation to crimi- end law involving case use in its underestimate not we should trials, nal so adopted, like advanced methods of lie detection of technique sophisticated the to thanks mind, witness’s Finally, if we imagine the use of brain ments from patients incapable of articulating words or moving the body, we can think of those neu- ro

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Call Giada Ragone, Benedetta Vimercati choices and decisions that involve him. involve that decisions choices and 60 of understanding our to pain». contribute can imaging brain what for bright is future The modulation. pain of types rapid permitted in networks of have understanding the in progress techniques imaging Modern patients. pain chronic in occur that alterations anatomical allow techniques imaging brain human in advances new Recently, modulation. pain in neurotransmitters forebrain of whole human involvement 1990s, the revealed have studies other whereas processing, early pain in involved areas brain multiple showed the In processing. pain our of on influence profound understanding a had have techniques imaging brain in advances decades, two last the In limited. brain human 20 noninvasive about modern methodologies of imaging advent the Until treat. and manage, investigate, assess, to difficult fore t memories, by to linearly related always is thereforepain not influenced Resultant cognitive factors. and genetic, pathological, emotional, input nociceptive the of interpretation an experience; conscious and subjective rial 59 consciousness hidden with patients reach workto coma virtual a by Pistorius, Martin of case 58 57 apnoea». and reflexes, brainstem absence of coma, are death brain in essential findings « (available 2009 56 55 K See consciousness, of disorders previous the and this of description the (for impaired be may awareness phase, acute the In movements. eye small via cate 54 chroni be may It intelligible verbalization. and following, command pursuit, ual 53 environment. of the or oneself ness of 52 51 i and patients incapacitated or unresponsive to regard with known world outer the of awareness as such t But idencein support theof possibility thatthe patient would regain consciousness. ev- be not must there assessment,and rigorousmedical underascertained, be must state vegetative Ca of Court Italian the casion, decisionthetotostacle withdrawlifesupport. Consider aforementioned the Englaroinoc- that case: ob- an be can that conditiona unresponsive state,the reversibility of the indicatorof an be can tivity jurisdictions many in used abilities» cognitive are law the for possibility this ma he nociceptive drive or input, neither is it solely for vital protective function. By its very nature, pain is there- is pain nature, very its By function. protective vital for solely it is neither input, or drive nociceptive he Brain death is defined as the irreversible loss of all functions of the brain, including the brainstem. Th brainstem. the including brain, the of functions all of loss irreversible the as defined is death Brain OTCHOUBEY

In Italy, the Italy, In See chronic. rarecases, in and is it Usually transient awareness. of signs no and wakefulness signs of no There are It is not impossible that a patient apparently in coma has awareness of the outer world. Consider the famous famous the Consider world. outer the of awareness has coma in apparently patient a that impossible not is It Thanks to experiments as those made in Canada, we can imagine to ask ask to imagine can we Canada, in made those as experiments to Thanks vis- sustained including awareness, of signs reproducible but inconsistent and wakefulness of signs are There According to Luca Saba ( Saba Luca to According There are signs of wakefulness, including eye opening and stimulus and opening eye including wakefulness, of signs are There According to to According Patients are usually aware, but unable to move or speak, and, unless completely locked completely unless and, speak, or move to unable but aware, usually are Patients 51 , a vegetative state vegetative a , ed a better understanding of the functional connectivity in pain pathways, as well as the functional and functional the as well as pathways, pain in connectivity functional the of understanding better a ed hat is not all: neuroscience promises to let us know some of the inner elements of the person the of elements inner the of some know us let to promisesneuroscience all: not is hat

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. We completely agree wi – quoted from from a physiological point of view 62 Neuropsicologia dei lobi frontali. Sindromi disesecutive

he he absence of a living will. Indeed, brain , - al al winner winner Francis Crick wrote in his book: «You, your joys and your sorrows,

could could be used in the future to obtain informed consent from patients and to

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, Neuroscience and end and Neuroscience

life life decisions and that appear to be useful for those Courts tasked to decide about the with- ARAH - F

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Free will and neuroscience: willneuroscience: and Free See See Judgment of the UK Supreme Court in the case of Charlie Gard, 19 June 2017, par. 10, available here: M.J. B. Ivi. , Bologna, 2013. D.

In In the previous paragraphs, we out pointed in terms practical the role of in neuroscience end

to 65 61 https://www.supremecourt.uk/cases/docs/charlie 62 63 64 event event harms certain specific areas of the brain that are considered the place of cognition processes (regulation of emotional behavior, communication, rea mental state, among others), namely the prefrontal lobes of vide explanations in purely behavior «comprehensive human material terms» Physiology or Med issues. issues. Beyond the mere usefulness of neuroscience in solving cases involving end som address to want now we As mentioned above, the development of neuroscientific techniques allows us to become aware of the relationship existing neuronal process. This kind of relationship is evident especially when a pathological or injurious and should play a more active role in educating and engaging with that community» engaging and in educating role active more play a should and 5. I drawal drawal of vital supports. Nonetheless, it is worth pointing out that most of «these scientif ologies have largely been designed and validated for experimental use only. Their subsequent use in legal proceedings is an application for which they were not intended, and for which those methods are inadequately tested» that «neurobiologists [...] should be aware of how their papers will be read by the legal community the child had suffered structural the brain had structural suffered child or no awareness of the world around him; moreover it was uncertain whether he was suffering pain, level. a low than more at and was he that likely it was but As it emerges, neuroscience prom end Last but not least, it is worth ception of pain are sometimes used by Courts as criteria useful to evaluate the patient’s quality of life and, consequently, to decide whether it is in the best interest of the person to is what has happened with the Charlie Gard case. In this occasion, the UK considering was for the best the patient choice lished that withdrawal Supreme Court physicians physicians and jurists in many ways. Let us think about the consequence of the possibility of augmentative using communication systems in order to detect the patients’ will: this can resolve the huge problems originated by t still in development alive. them keep to the permission for ask them

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Call Giada Ragone, Benedetta Vimercati the Royal Society of London, series B of London, Society Royal the 71 70 69 2006, 2. 68 ence empiristica Science of Unity 67 66 in the with self theoryexclud doesthe investigating How patient’swishes? juristsinthe supportto fer of- neurosciencecan how is:problem defined moresecond, the illusion,an is will free that Assuming 6. forces beyond their control» of product the obviously is behavior whose individuals with mercifully but firmly deals law the time, tecture. (...) depends. retributivism which upon will free of conceptions libertarian intuitive, the undermining by tuitions tha extent the to neuroscience of application this by overwhelmed been have categories legal current and Traditional law. criminal in neuroscience of application the by produced effects the with clashes potentially conception This «individual isfree because imputed one a san order»certainaction,the determined consequences certain by a by about, bring to order normative the by authorized is individual an when also, regulated positively is be Human (...) way. this in behave to obliged is individual the saying as same the to amounts normvalid objectivelyan bycommanded is individual an of behaviour the that say To (...) order. tive Behaviour «Human Kelsen: to According principles legal on questions to leads will free of nothingness the perspective, general the Under neurosciencein the end m a is second the and legality of terms in system legal the and citizens between relationship the affects that problem general and wider a is first the lems: may chemical will of outcome mere free the as considered that is consequence extreme the reasoning, this Borrowing reality. describe and understand to way only the itself is it but reality, governing laws physical the explain only not does Neu philosopher physicalist the the of theory Using itself. nature human pure describing theory scientific a is it rather but condition, clinical patient’s the ascertain to way certain entirely an not is neuroscience why discloses statement This thanbehavior the of a vast assembly nerveof cells and theirassociated mo more no fact in are will, free and identitypersonal of sense yourambitions, your and memories your

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health offered by the WHO: «Health is a merely the absence of disease or state infirmity». of the idea of dignity is inextricably linked to a liberal deservechoices respect. If the State takes a particular view on what requir is it may introduce regulations to restrict the freedom which view, interfere with people the dignity of the individual, a social have group or a human race as a to whole. (…). One it bec make choice with, in the State’s a tool in the hands and of lawmakers judges, the concept of human dignity a is two 78 (lancer (lancer de nain), a stated that it was a violation of dwarf’s human dignity despite right/freedom the to dwarf’soccupation. consent and the limitation of his the normative reexamin rights, and and Law 77 le». 74 and Liberalism 75 an and US Constitutionalism 76 es es of the word “free” have counted. question of metaphysics ing 73 che la Costituzione rappresenta un tentative di giuridicizzare la morale (…) non ci si questa può opera dimeravigliare traduzione poi e che di “valorizzazione” dei valori, finisca col riflettere il pluralism di questo dibattit riportandolo in pieno, con tutto il suo carico di posizioni inconciliabili, dentro il contest normativo costituziona- 72 of reasoning, human dignity and self rights other value”, fundamental limit as to able “objective an ered lawyers by European sense the well determination is becoming its core content; therefore the untouchable worthiness of human beings would consist of the ability to decide their actions and their destiny are many conflicting sets of values and where powers are not guided by an indisputable set of values, of values, set indisputable by an are not guided powers where values and of sets conflicting are many framework constitutional the axiological notwithstanding This is one of the reasons why a subjectivi different approach to constitutional interpretation. Most fundamental principles of our constitution- According th to meaning. subjective personal, light in of the patient’s al system are investigated Neuroscience Neuroscience has indeed the power to reshape some of the legal but also ethical notions underlying end ontologically related to a pre This ethical and moral reflection in turn has been worsened by the jeopardization of a shared set of values

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Call Giada Ragone, Benedetta Vimercati giustizia costituzionale giustizia brain». physical the of “microphenomena” also See the of terms in solely action the explain and to thought seeks It of terms. “macrophenomena” elemental and simple most the in matters complex explicate to is aspiration ry explanato- chief its is, That reduction. of way by operates neuroscience cognitive science, modern within plines 84 staticità. la saliente connotato discussione l’altro». continua in sembra,mettere così, L’una come ha continuità di e razionalizzazione di stabilità, di fattore come pensate ripensam continuo in evoluzione, continua in è scienza LOTTO 83 certezze». anzi: certezza, dare fine di specifico si allo costituisce regole),di insieme (o regola come cioè inteso espressioni), qualificanti immediatamente più sue delle una certo di ma sa, accezio sua nella diritto, il che vero è se certezza, è diritto il circolarmente, come, così diritto, è certezza la Piuttosto, caratterizzazione. complessiva la danno ne che attributi altri di pari al tuzionale 82 Perso Making Social: the of tution L 81 new as daunting more and complex lin more ( emerge» technologies into grow laws will the judges and facing questions Constitution the the and bringing technologies, of changing challenge the on take to fortitude the have always 80 Life, End with Dealing for work die» to how and when about decision personal pro more are autonomy and dignity personal one’s which in life in no decision is There (…) die. to choose we way the in profoundly, more even also, but lives our live we way the in only fostered die to right the of recognition 79 knot the unravel can they which by argument gal le- the asscientific approach a on rely often more and morewho among growingjudges is trend This surface. the latent previously cause can changes technological because difficulties deep andgrowing even facing is particular, in Constitutionallaw, progress. scientific reasons, other among s is law however, Meanwhile, lished to adjustthe life of society, giving rationality and stability tolife the societyof ties» cularly as well as lawitself the is certaintyIndeed, (…).law of feature a typical not «Certaintyis it: over nee and requires nature, cases sensitivesolving for suitable tivity values of ogeneity by marked context this within that, be to seems it time, same the at But, tem, can beradically altered time, with bringing doubt into the provisions that rely upon them» basic «Certain ATOUR

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