Must I cognitively enhance? Smart drugs and the moral and legal duties of high-responsibility professionals

Consider these:

Role 1: You are a surgeon who will be performing a brain surgery in 30 minutes, and you have been working non-stop for the past 10 hours. Coffee intake= lost count, rest= very much needed. As a high-responsibility professional, must you cognitively enhance? Do you have a moral duty or a legal obligation to take the ‘smart drug’?

Role 2: Your loved one will be undergoing brain surgery, and this could determine life or death. Everything depends on the doctors; any mistakes could have irreversible outcomes. Do you have the right to demand for the doctors to take cognitive enhancers in order to reduce the chances of errors?

Emerging data and advances in psychopharmacology, such as reports on positive effects of ‘cognitive enhancing drugs’ in healthy adults have prompted academics and policymakers to question: should high responsibility professionals be required to take them? ¹²³

Speaking at our PsyNAppS meeting, Dr. Hannah Maslen, a Post-doctoral Research Fellow on Ethics at the Oxford Martin School suggests that neuroscientific research could offer important contributions towards addressing these questions in policy-making.

Quick Facts

Smart drug Drugs that are shown to have ‘cognitive enhancing’ properties by acting on neurochemicals. For example, Ritalin and Modafinil.
Moral duty Depending on the features of the specific case, a particular individual might have strong moral reasons to do a particular thing – e.g. to perform an act of great benefit to another where this is at no or little cost to the self.
Legal duty A certain act which is legally required by all (relevantly similar) members of a certain profession as part of fulfilling their duty of care – e.g. the acts that would be performed by a consensus of responsible surgeons.

What has cognitive enhancement got to do with high-responsibility professionals?

Based on a survey of 500 commercial pilots, 56% admitted to having fallen asleep on the flight deck and amongst them, nearly 1 in 3 (29%) reported that they woke to find their co-pilot asleep4. It was also reported that about 27% of claims against health care organisations resulted from cognitive or diagnostic errors and lapses of judgments5. These are the scary, harmful effects of fatigue, which are suggestive of the potential benefits of cognitive enhancement for certain professionals and those whose lives depend on them.

Some empirical studies have been conducted to examine the effects on individuals. In one example, a double-blind, randomized and controlled study showed that ingesting 200mg Modafinil after one night of deprived sleep might be beneficial for situations that require efficient information processing, flexible thinking and decision making under time-pressure but not those that require basic procedural tasks6. Further research has examined what surgeons thought about taking these smart drugs7.

What is the current practice?

Lets take the surgeon-fatigue case above as an example, a legal enquiry will typically begin with a few questions: for a start, what is so bad about being fatigued? What are the cognitive functions impaired and the clinical implications in the context, say surgeons? How exactly do these pills help alleviate these specific impairments in performance? Or do they simply enhance other compensatory functions? How does it compare – by way of analogy – to picking up someone else’s glasses and wearing it?

What happens if the public demands it?

If something harmful happens, could you sue your surgeon for clinical negligence, i.e., for not preventing the harm by taking cognitive enhancers? For decades, it has been decided based on two rather blunt tests of liability: the Bolam and Bolitho tests:

Bolam Test Bolitho Test
A doctor is not guilty of negligence if he/she has acted in accordance with a practice accepted as proper and responsible by a responsible body of medical professionals. In other words, a doctor is not liable as long as another group of doctors would say ‘Yes, I would have done the same’. Argues that one cannot defend a case on the basis of current practice that is not reasonable or logical. Therefore, in order for a doctor to be liable, he/she must have caused harm that is linked specifically to the breach of care of duty.

In a recent paper by Goold and Maslen (2014), it was suggested that court of legislature is unlikely to place professionals under a legal obligation to take cognitive enhancers: ‘…at present we have too little knowledge of their current and future side-effects to require people to ingest potentially harmful medications for the benefit of others. Their efficacy is uncertain and out commitment to respecting individual autonomy and bodily integrity is fundamental principle of the English common law’8.

So, how can neuroscience contribute to the future of policy-making and ethics?

Dr. Maslen stressed the importance of scientific support or evidence to be considered before decisions are made. She highlighted that current discussions are mostly fueled by imaginations of certain characteristics of cognitive enhancers and their speculative applications, and there is very little knowledge on the safety and efficacy of such drugs. She recommends that ‘research should focus on the questions directly relevant to society, rather than the other way round’, we should first understand the empirical data on specific effects (and side effects) in individuals through neuroscientific studies, and then consider its real-world implications.

Time for some mental stimulation…

During the talk, further issues were raised. Some of our members questioned whether the responsibility for enhancing work performance should be placed upon the shoulders of the already overworked surgeons? Could organisations/institutions play greater roles in resolving this issue, e.g., by reducing the working hours instead? If it is decided to be a legal duty, who would pay for the cognitive enhancement? Do we have evidence to assess the cost-benefit ratio of using these drugs? Are we informed enough to make decisions on enhancing a specific ability if there is a cost to another? Is society prepared to deal with the consequences? How much information do we need to make a policy decision? More of these discussions could be found here 5,7.

In sum

Overall, it seems that empirical data from neuroscience research is likely to be important not only for guiding the discussion and policy-making on smart drugs and professionals, but also cognitive enhancement and the society, in general.

For those who are interested in Neuroscience and the Law, read more here.

References:

  1. Joint Academies Workshop (2012) Human enhancement and the future of work (Link).
  2. Sahakian, B., & Morein-Zamir, S. (2007). Professor’s little helper. Nature, 450(7173), 1157-1159.
  3. Greely et al. (2008) Towards responsible use of cognitive-enhancing drugs by the healthy. Nature, 456(7223), 702-705.
  4. British Airline Pilots Association (2013) (Link)
  5. Sugden et al (2012, November). What are the effects of sleep deprivation and fatigue in surgical practice? In Seminars in thoracic and cardiovascular surgery (Vol. 24, No. 3, pp. 166-175). WB Saunders.
  6. Sugden et al. (2012, February). Effect of pharmacological enhancement on the cognitive and clinical psychomotor performance of sleep-deprived doctors: a randomized controlled trial. Annals of surgery, 255(2), 222-227.
  7. Warren, et al. (2009). The neurocognitive enhancement of surgeons: an ethical perspective. Journal of Surgical Research, 152(1), 167-172.
  8. Goold, I., & Maslen, H. (2014). Must the Surgeon Take the Pill? Negligence Duty in the Context of Cognitive Enhancement. The Modern Law Review, 77(1), 60-86.

——————————————————————————————————————————

Dr. Hannah Maslen, Oxford University

Dr. Hannah Maslen is a Postdoctoral Research Fellow in Ethics, working on the Oxford Martin School Programme on Mind and Machine. She is also a Junior Research Fellow at New College.

Hannah received her BA in Philosophy and Psychology (PPP), MSc in Criminology and Criminal Justice, and DPhil in Law from Oxford. Find out more about Hannah’s research here.

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