Recently, attention has turned to the possibility of enhancing human cognitive abilities via pharmacological interventions. Known as ‘cognitive enhancers’, these drugs can alter human mental capacities, and in some cases can effect significant improvements. One prime example is modafinil, a drug used to treat narcolepsy, which can help combat decreases in wakefulness and cognitive capacity that arise due to fatigue in otherwise healthy individuals. In this paper, we respond to calls in the philosophical and ethical literature that surgeons and other medical professionals should be morally obliged to take cognitively enhancing drugs. We examine whether surgeons who make fatigue-related errors during patient care might be considered legally obliged to enhance themselves. We focus on liability for a failure to medicate, and conclude that it is highly unlikely that surgeons will be legally obliged to address their fatigue through the use of cognitive enhancing drugs.Goold and Maslen go on to state that
Human beings attempt to enhance their capacities in many ways. They train their bodies through physical exercise and they develop their minds through reading and study. In many professions, such training is a prerequisite for employment. For example, surgeons must complete at least nine years of study and demonstrate proficiency in a wide range of required competencies before they may legally practice. Surgeons emerge from their training able to perform tasks that were previously unable to perform – they have enhanced their capacities.
Recently, attention has turned to another form of capacity enhancement – the improvement of cognitive abilities via pharmacological interventions. Known as ‘cognitive enhancers’, these drugs can alter human mental capacities, and in some cases can effect significant improvements. Two drugs in particular have garnered interest for their potential as cognitive enhancers: Ritalin and modafinil. Both are increasingly being used by people who hope to experience positive impacts on cognitive effectiveness and efficiency, and in some cases this use is occurring in a professional context.
To date, the discussion of cognitive enhancers has occurred mostly within the philosophical and ethical literature. Considerable attention has been paid to questions pertaining to the ‘fairness’ of their use1 and whether the cognitive life that enhancers precipitate is ‘authentic’. Of more significance from a legal perspective is the emerging view that certain professionals might be morally obliged to take cognitive enhancers. This view is taken seriously by policy-orientated working groups, by legal scholars and even by some of the professionals themselves.
For example, a report on human enhancement and the future of work, produced by the Royal Society, Academy of Medical Sciences, British Academy, the Royal Academy of Engineering and the Royal Society, commented that:
[O]ccupations that require particular patterns of focus could benefit from enhance- ments that facilitate achieving such patterns. For example, surgeons may need to be able to concentrate for extended periods, whereas other jobs such as air traffic control can require very rapid reactions during periods of relative uniformity. As an extrapolation to this, it is possible that in these high-responsibility occupations enhancement could be seen as a moral obligation, or even demanded by the public.
Similarly, the editors of Mayo Clinic Proceedings, both medical doctors, have argued that there are conditions under which resident physicians have an ethical duty to take a stimulant like modafinil to reduce errors: What if a legal stimulant that is shown to be safe could be used to improve medical care during periods of fatigue, regardless of the number of hours worked? Would not the more ethical choice be to promote the reduction of errors – First, do no harm?
Writing in the Journal of Surgical Research, surgeons have also suggested that the prospect of themselves and their colleagues having to take enhancers is not far-fetched and may come to be required practice. They say: The prospect of fatigued surgeons taking a prescription drug, such as modafinil, to allow them to operate for longer, and possibly to a higher standard, is perhaps not as far-fetched as some may suggest. This drug has already been trialled in emergency physicians, when performing non-medical-related tasks at the end of a nightshift.
￼They also emphasise that the concept of surgeons risking their health to benefit patients is not an alien one. They cite operating on patients with blood-borne transmissible diseases as an example of where the risk to the surgeon is considered justifiable to improve the patients’ chances of recovery. Having noted that there are ‘useful and warranted forms of coercion’ forcing surgeons to undertake practices such as hand washing and sterility prior to and during surgery, they ask:
What will our employers feel about a drug that makes us less prone to error, able to work longer hours, or to operate more efficiently? Employers are able to request certain behavioral standards from their employees, dictate rest periods, and insist on abstinence from certain drugs to ensure that their doctors perform well – will a day arise where they can recommend or even insist on surgeons’ being artificially enhanced? This may seem fanciful, but recent work has suggested that a mixture of napping and caffeine attenuates fatigue in interns and thus should be adopted by hospital administration. Why not other types of stimulant?
Whether such insistence will be legally enforceable is a question that has also received a tentative ‘yes’ from legal scholarship. Chandler has argued that civil law might indirectly require surgeons to enhance following changes to what is viewed as delivering reasonable care. She suggests that such changes could have the effect that a surgeon’s failure to adopt novel neurotherapies that remedy cognitive limitations would be negligent if it could be shown to have led to harm. She emphasises the indirect way in which this could occur:
Cognitive deficits may also raise the risk of liability if they cause a physician to make errors that would not be made by the reasonably prudent practitioner in the field, or to fail to keep up with developments in the field to an extent that is considered to fall below the reasonable standard of care in the profession. In such cases, the courts would simply find there had been a failure to maintain the standard, without necessarily commenting on cognitive deficits or therapeutic methods to alleviate them.
Given that the routine use of enhancers by professionals is seen as a real possibility, and potentially even a future requirement, legal analysis needs to examine what implications this will have. As the professional use of enhancers becomes more prevalent and expected, the potential for legal claims emerges. In our view, the most likely contexts in which legal claims involving enhancers may arise are clinical practice and driving. Thus, and in this paper, we focus on potential claims of negligence, and specifically whether a duty of care could require someone to take a cognitive enhancer. We do so in part because at present the most widely used cognitive enhancing pharmaceuticals can be used to combat decreases in wakefulness and cognitive capacity that arise due to fatigue. Where the injured parties allege that their injury occurred due to the driver or surgeon’s fatigue, the argument that a fatigue-related error resulting in harm could have been avoided by taking an enhancer might be appealing when targeting a tired surgeon or professional driver. This will be increasingly conceivable as knowledge and availability of these enhancers grows, especially if there are suggestions that medical professionals are morally obliged to self- medicate in this way. We focus our discussion on the possible use of enhancers by a group of professionals for whom their use might be especially attractive – surgeons – and examine questions of liability through the example of a fatigued surgeon. However, the majority of our conclusions about obligations in this context could be extrapolated to other situations in which a fatigue-related error has occurred. We focus our discussion around the use of modafinil, as there is growing evidence of its efficacy in addressing fatigue.
In claims of negligence involving cognitive enhancement, two main claims might be made: that harm occurred as the result of a person having taken an enhancer; or that a person could have avoided causing harm by having taken an enhancer. The first claim would be a relatively straightforward question of whether the act of taking an enhancer fell outside the ambit of what a reasonable, fatigued, surgeon would do, albeit a question fraught with issues of policy. In this paper, we examine the more difficult, latter situation – the claim that a professional ought to have taken a cognitive enhancer, and in failing to do so, should be held liable for the harm that resulted from that failure. We do so in part as a response to calls for recognising a moral duty for surgeons to self-enhance, and because determining how the law would (and should) approach such claims is far from clear and hence demands exploration prior to any such claims arising.
We note that both claims would also face significant causation barriers, but do not examine these here, instead focusing on the fundamental prior question of whether a duty to take such an enhancer would, or could, arise in negligence. We acknowledge, of course, that if it is impossible to establish causation, this precludes findings of liability. It might be thought that this renders the question of duty redundant. However, we do not think this is the case.
First, whether one thing caused another is an empirical question which in some cases can be very difficult or even impossible to answer. Whether there is a duty or not, however, is a normative question about what one should do. The conclusion that there is no duty to enhance is importantly different from the conclusion that there is a duty but that no individual will ever be held liable for breaching it due to epistemic limitations.
Second, the separate analysis of duty is important because it has implications for practice. As demonstrated above, various commentators, including surgeons, are of the view that there might be a duty to take cognitive enhancers. Legal analysis that explained why there was no legal duty would offer a more satisfactory counter to this view than analysis that explained that whether or not there is a duty is inconsequential because no one could prove that not enhancing resulted in harm. Practitioners who may be conflating prudential, moral or legal motivations to enhance will be able to better understand why the law, at least, would not hold them liable for omitting to enhance, even if the causal ramifications were perfectly determinable.
Third, given that other legal scholars have suggested that the law will indirectly oblige surgeons to enhance – that there could be a duty – this claim requires further analysis and consideration to elucidate the nature of this (potential) duty and its plausibility.
We examine the possibility of liability by first explaining what cognitive enhancers are and how they might be used. We then present a scenario of a fatigued surgeon who contemplates using modafinil to combat her tiredness during surgery. Following a brief explanation of the relevant principles of medical negligence, we apply these to two versions of the scenario and draw some preliminary conclusions about possible liability. The concluding section of the paper presents four arguments to support our contention that it is highly unlikely that the English courts will find a surgeon to be obliged to take a cognitive enhancer. We look to what might be expected of a surgeon who has assumed responsibility for a patient’s care, and argue that such a duty would not extend to include an obligation to self-medicate with a cognitive enhancer. We draw this conclusion in part because the safety of such enhancers remains uncertain. This, combined with added uncertainty about how predictably efficacious these drugs are, suggests that the courts would be unlikely to require a surgeon to assume the risk that the enhancer might be harming to her when the benefits to the patient are far from clear. Indeed, the law’s resistance to obliging anyone to risk his or her safety solely for the benefit of another person speaks against the courts requiring a surgeon to take a relatively untested drug solely for the benefit of another. Following cases such as St George’s Healthcare NHS Trust v S, the common law’s commitment to protecting individual bodily integrity further bolsters the view that it is extremely unlikely that a court would find a surgeon negligent for failing to ingest a medication for another’s benefit. Finally, we explore some analogous cases relating to self-medication and becoming impaired in some way. There are very few closely analogous cases, but in those relating to failure to medicate and resultant harm to others, the wrong is generally framed as a negligent act (such as driving) while unmedicated, rather than as a failure to medicate. We contend that the same approach would be taken to our hypothetical surgeon who does not take an enhancer. We further contend that where she has no option but to undertake surgery while dangerously tired, or to take the enhancer, that these cases are no longer analogous and other rules, such as those relating to a doctor’s standard of care and rules around rescue/triage situations, would apply. In our view, neither area of law would place an obligation on the surgeon to take the pill.'The regulation of cognitive enhancement devices: extending the medical model' by Hannah Maslen,Thomas Douglas, Roi Cohen Kadosh, Neil Levy and Julian Savulescu in (2014) 1(1) Journal of Law and the Biosciences 68–93
presents a model for regulating cognitive enhancement devices (CEDs). Recently, it has become very easy for individuals to purchase devices which directly modulate brain function. For example, transcranial direct current stimulators are increasingly being produced and marketed online as devices for cognitive enhancement.Despite posing risks in a similar way to medical devices, devices that do not make any therapeutic claims do not have to meet anything more than basic product safety standards.We present the case for extending existing medical device legislation to cover CEDs. Medical devices and CEDs operate by the same or similar mechanisms and pose the same or similar risks. This fact coupled with the arbitrariness of the line between treatment and enhancement count in favour of regulating these devices in the same way. In arguing for this regulatory model, the paper highlights potential challenges to its implementation, and suggests solutions.