Tinkering the criminal brain: the application of Deep Brain Stimulation (DBS) on (potential) criminals?

Short flashback of the MLE organized at Tilburg Law School, the Netherlands on 8th May 2014.

At this Mobilization and Mutual Learning Event the speakers and the audience were invited to discuss the following issue: “So far, the DBS technique has been applied mainly as a treatment for patients suffering from Parkinson, an obsessive-compulsive disorder (OCD) or from a depression. But what are the ethical, medical and legal aspects to using DBS to influence anti-social behaviour of, for instance, (potential) criminals?”.

The MLE consisted of three introductions by experts from different disciplines. Further a students’ theatre group presented three short sketches on the side-effects of DBS, the different decision takers, and the future of DBS. There was time for questions and discussion with the audience. The moderator of this day was Prof. dr. Han Somsen, Tilburg Law School. The day was organized by the Department of European and International Law of Tilburg Law School in cooperation with Academic Forum and Students’Association ELSA.

The experts approached the issue of DBS application as a treatment for criminals from three different points of view:

1) Mariska Mantione, neuropsychologist and behavioral therapist working at the Department of Psychiatry of the Academic Medical Center in Amsterdam, presented a recent research evaluating the effects of deep brain stimulation. In general, the technique has shown to be very effective in several cases, notwithstanding some cases where the technique required some of fine-tuning: the technique of DBS consists of more than 20.000 different options in stimulating the brain. It also became clear that in some cases some forms of Obsessive Compulsive Disorder (OCD) persisted and that additional therapy remained necessary. It also appeared that the patients’ insight in the disorder and his or her motivation to be subjected to DBS is crucial for its success. This begs the question whether this therapy is suitable for the “treatment” of criminals. Another issue would be the fact that the change in behavior only persists as long as the DBS is switched on.

2) Dr. Gerben Meynen, Professor at Tilburg Law School Department of Criminal Law, discussed the need to reconsider Article 39 of the Dutch Criminal Code in the light of modern techniques to detect someone’s mental defects or disorder and the ensuing discussion on the existence of the “free will”. According to Article 39 Dutch Criminal Code “in cases where the criminal act is proven but the offender cannot be held responsible for his or her act due to a mental defect or disorder, the offender will not be considered punishable”. 

3) Mr. Paul van de Beek, Chief Prosecutor in Rotterdam, questioned the existence of something like a “mental disorder”, arguing that “everybody is just the way he or she is”. He further explained that currently, according to the Dutch legal system, a criminal with a mental defect can be lifelong detained in a psychiatric institution, but cannot be forced to undergo a treatment, like DBS.According to Van Beek it would be desirable to adopt legislation enabling the application of DBS in such situations even against the will of the patient/criminal.

 

During the MLE a short questionnaire was distributed to the audience consisting of approx. 45 people.  An impression of the outcomes of this questionnaire:

  • With regard to the statement “DBS is a “neurohype”” , 45% of the audience considered DBS a very promising and useful treatment, 40% thought that our expectations of DBS are not realistic because of unpredictable side-effects.
  • Reactions on the statement that “the application of DBS on criminals contributes to the realization of an ideal society” were as follows: 12% answered “yes, that is wonderful”; 30%  considered this a scary idea; 50 % had other ideas such as: “Whether this is the case should be further researched, moreover, what is an ''ideal society''?”. “The side-effects of DBS must be well known”. “An ideal society is a too broad notion, but DBS could reduce criminal behavior, however, it works ex post”. “This is the slippery slope to genetic reconstruction before birth”. “DBS is not even able to make ideal people from criminals.” “DBS could help on an individual level: peoples with obsessive-compulsive disorder and depression. It is not suitable to create an ideal society”. 8 % had no idea.
  • DBS should be applicable to: 1) improvement of the cognitive capacity of students and juveniles (1 person, out of 25); 2) increase the labor capacity (1 person); 3) peoples with compulsive neuroses (23 persons); 4)elderly people with Parkinson (19 persons); 5)people suffering from a mental depression (21 persons); 6) the treatment of criminals (13 persons); 7) military (5 persons); 8) drug addicts (19 persons); 9) nobody (2 persons); people suffering from dementia (3 persons).
  • Regarding autonomy: 20% thought criminals are sufficiently able to give their informed consent to the application of DBS in their head. 50% considered that DBS, being an effective treatment, should be applied on criminals, if necessary even under force. However, the following additional conditions were mentioned: only with adequate legislation strictly defining the treatment and defining to which criminals it should apply. Others mentioned that differentiation is important and that criminals should be informed about the (side) effects of the treatment by a psychiatrist and neuro-surgeon. 14% thought DBS should not be applied to all criminals, only to people with compulsory neurosis and depression. 16% had no idea.
  • When asked who decides on the application of DBS to a person with a “criminal” brain, the answers were as follows: a) the judge (9 persons out of 25); b) the parents of a child with a “criminal” brain (2 persons); c) the person with a “criminal” brain him/herself (13 persons);  d) the victim of the person with the “criminal” brain (no one); e) the medical doctor (10 persons); f) nobody (4 persons)
  • As regards further legislation and regulation: 19 out of 25 persons that there is a need for new legislation/regulation with regard to DBS. 3 Persons thought that the existing legislation/regulation suffices.