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International Legal Approaches to Neurosurgery for Psychiatric Disorders

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International Legal Approaches to Neurosurgery for Psychiatric Disorders REVIEW published: 13 January 2021 doi: 10.3389/fnhum.2020.588458 International Legal Approaches to Neurosurgery for Psychiatric Disorders Jennifer A. Chandler 1*, Laura Y. Cabrera 2, Paresh Doshi 3, Shirley Fecteau 4,5, Joseph J. Fins 6,7, Salvador Guinjoan 8, Clement Hamani 9, Karen Herrera-Ferrá 10, C. Michael Honey 11, Judy Illes 12, Brian H. Kopell 13, Nir Lipsman 14, Patrick J. McDonald 15, Helen S. Mayberg 16, Roland Nadler 17, Bart Nuttin 18, Albino J. Oliveira-Maia 19,20, Cristian Rangel 21, Raphael Ribeiro 22, Arleen Salles 23 and Hemmings Wu 24 1 Faculty of Law, University of Ottawa, Ottawa, ON, Canada, 2 Center for Ethics & Humanities in the Life Sciences and Dept. Translational Neuroscience, Michigan State University, East Lansing, MI, United States, 3 Department of Neurosurgery, Jaslok Hospital and Research Center, Mumbai, India, 4 Department of Psychiatry and Neurosciences, Faculty of Medicine, Université Laval, Quebec City, QC, Canada, 5 CERVO Brain Research Center, Center Intégré Universitaire en Santé et Services Sociaux de la Capitale-Nationale, Quebec City, QC, Canada, 6 Weill Cornell Medical College, Consortium for the Advanced Study of Brain Injury, Weill Cornell and the Rockefeller University, New York, NY, United States, 7 Solomon Center for Health Law & Policy, Yale Law School, New Haven, CT, United States, 8 Laureate Institute for Brain Research, Tulsa, OK, United States, Edited by: 9 Harquail Center for Neuromodulation, Sunnybrook Research Institute, Division of Neurosurgery, Sunnybrook Health James J. Giordano, Sciences Center, University of Toronto, Toronto, ON, Canada, 10 Asociación Mexicana de Neuroética, Mexico City, Mexico, Georgetown University, United States 11 Section of Neurosurgery, Max Rady College of Medicine, University of Manitoba, Winnipeg, MB, Canada, 12 Neuroethics Canada, Division of Neurology, Department of Medicine, University of British Columbia, Vancouver, BC, Canada, Reviewed by: 13 Departments of Neurosurgery, Neurology, Psychiatry and Neuroscience, Icahn School of Medicine at Mount Sinai, New Joaquim Pereira Brasil-Neto, York, NY, United States, 14 Division of Neurosurgery, Harquail Center for Neuromodulation, Sunnybrook Health Sciences Unieuro, Brazil Center, University of Toronto, Toronto, ON, Canada, 15 Division of Neurosurgery, Faculty of Medicine, BC Children’s Hospital, Amer M. Burhan, University of British Columbia, Head, Vancouver, BC, Canada, 16 Departments of Neurology, Neurosurgery, Psychiatry and Ontario Shores Center for Mental Neuroscience, Icahn School of Medicine at Mount Sinai, New York, NY, United States, 17 Peter A. Allard School of Law, Health Sciences, Canada University of British Columbia, Vancouver, BC, Canada, 18 Neurosurgeon, Katholieke Universiteit (KU) Leuven, Universitair *Correspondence: Ziekenhuis (UZ) Leuven, Leuven, Belgium, 19 Champalimaud Research and Clinical Center, Champalimaud Center for the Jennifer A. Chandler Unknown, Lisbon, Portugal, 20 NOVA Medical School, NMS, Universidade Nova De Lisboa, Lisbon, Portugal, 21 Department of [email protected] Innovation in Medical Education, Faculty of Medicine, University of Ottawa, Ottawa, ON, Canada, 22 Faculty of Law, University of Ottawa, Ottawa, ON, Canada, 23 Center for Research Ethics and Bioethics, Uppsala University, Uppsala, Sweden, 24 Specialty section: Department of Neurosurgery, Second Affiliated Hospital, Zhejiang University School of Medicine, Hangzhou, China This article was submitted to Brain Imaging and Stimulation, a section of the journal Neurosurgery for psychiatric disorders (NPD), also sometimes referred to as Frontiers in Human Neuroscience psychosurgery, is rapidly evolving, with new techniques and indications being Received: 28 July 2020 investigated actively. Many within the field have suggested that some form of guidelines Accepted: 30 November 2020 or regulations are needed to help ensure that a promising field develops safely. Multiple Published: 13 January 2021 countries have enacted specific laws regulating NPD. This article reviews NPD-specific Citation: Chandler JA, Cabrera LY, Doshi P, laws drawn from North and South America, Asia and Europe, in order to identify the Fecteau S, Fins JJ, Guinjoan S, typical form and contents of these laws and to set the groundwork for the design of Hamani C, Herrera-Ferrá K, Honey CM, Illes J, Kopell BH, an optimal regulation for the field. Key challenges for this design that are revealed by Lipsman N, McDonald PJ, the review are how to define the scope of the law (what should be regulated), what Mayberg HS, Nadler R, Nuttin B, types of regulations are required (eligibility criteria, approval procedures, data collection, Oliveira-Maia AJ, Rangel C, Ribeiro R, Salles A and Wu H (2021) International and oversight mechanisms), and how to approach international harmonization given the Legal Approaches to Neurosurgery for potential migration of researchers and patients. Psychiatric Disorders. Front. Hum. Neurosci. 14:588458. Keywords: neuroethics, regulation, law, deep brain stimulation, psychosurgery, neurosurgery for psychiatric doi: 10.3389/fnhum.2020.588458 disorders Frontiers in Human Neuroscience | www.frontiersin.org 1 January 2021 | Volume 14 | Article 588458 Chandler et al. Legal Approaches to Psychiatric Neurosurgery INTRODUCTION democratic legal systems is how to ensure that the perspectives and experiences of a broad range of stakeholders are reflected The history of neurosurgery for psychiatric disorders (NPD) is in the compromises that are struck in the eventual laws one of extremes running from celebration and expanded use to (statutes, regulations, and common law). The interests of backlash and public condemnation. António Egas Moniz was patients, caregivers, researchers, medical practitioners, device awarded the 1949 Nobel Prize for the prefrontal leucotomy, and manufacturers, and the public may diverge, and the laws a form of this, known more often as the lobotomy, was pursued adopted must appropriately balance these interests, although particularly but not exclusively in the US until the late 1960s. At structural and political factors mean that certain interests may this point, the availability of effective antipsychotic drugs, along dominate. with changes in social attitudes to psychiatry, the rise of the civil The existing legal frameworks are patchy and have failed to rights movement, and concerns about the application and side keep up with scientific, technological and social change. The effects of the lobotomy all contributed to a strong shift away scope of applicability of the existing NPD-specific laws is often from what was then usually called psychosurgery (Pressman, unclear and many are partly obsolete, reflecting old science, 1998; Robison et al., 2012; Caruso and Sheehan, 2017). Cultural methods of intervention and social currents of decades past. The products such as Suddenly Last Summer (Williams, 1958; Spiegel laws also reflect mind-brain dualism, with many restricted to and Mankiewicz, 1959), One Flew over the Cuckoo’s Nest (Kesey, interventions to treat mental illnesses, while excluding similar 1962; Douglas et al., 1975), and Hombre Mirando al Sudeste interventions intended to treat what are categorized instead (Pflaum et al., 1986) reflect different societies’ concerns in the as neurological or brain illnesses. The international discussion 1960s to 1980s with the role of psychiatry, physical treatments amongst clinical experts recognizes a need for some form of involving the brain, and state control of behavior. An unusual guidelines for the field (Wu et al., 2012; Nuttin et al., 2014; Bari law reflecting this kind of concern is the Utah Code provision et al., 2018; Doshi et al., 2019). Occasional calls for mandatory stating that it is a criminal offense to give psychiatric treatment, forms of regulation have been made by members of the relevant including “lobotomy or surgery” to any person “for the purpose clinical community (Wu et al., 2012; Visser-Vandewalle, 2014). 1 of changing his concept of, belief about, or faith in God” . Rules come in many forms, both legal and non-legal. During this period of controversy, the US National Consensus guidelines produced by authoritative professional Commission for the Protection of Human Subjects of bodies, policies adopted by hospitals or medical regulators, Biomedical and Behavioral Research conducted an evaluation of and self-regulatory procedures created by groups of medical psychosurgery (1977). The National Commission, also known practitioners are examples of rules that may guide practice for the (United States National Commission for the Protection even though they do not constitute formal legal rules and of Human Subjects of Biomedical Behavioral Research, 1979), principles developed by judges or enacted by government bodies. issued a generally favorable report and provided guidelines for Each of these forms has pros and cons in terms of the ease the ethical use and regulation of psychosurgery (Fins, 2003). with which they may be prepared and amended over time, Also in this period, multiple legal jurisdictions enacted their their enforceability, their geographical applicability, and other own laws that specifically regulate NPD. These laws often used features. It is not immediately clear which form would be the term psychosurgery, and some defined the term to include best suited to regulating NPD, and different approaches may non-ablative interventions such as deep brain stimulation (e.g., be preferable depending upon the type of intervention and Ontario, Canada).
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