Neuroethics & Law Blog

Reevaluating Swinburne: Neuro-interventions and the Morality of Homosexuality (Andrew Vierra)

In a recent presentation at the Society for Christian Philosophers, Richard Swinburne (Oxford) argued that homosexuality—i.e. exclusive, erotic, attraction to members of the same-sex—is a disability that ought to be eliminated. Towards this end, he suggested that we should “encourage research into how the orientation can be cured” (see the full paper here). Not surprisingly, Swinburne has met harsh criticisms from philosophers, the mainstream media, and even the Society for Christian Philosophers.

One of these criticisms, raised by Rob Hughes, a young moral, political, and legal philosopher teaching in the Wharton School at the University of Pennsylvania, targets what Hughes takes to be Swinburne’s “false and unjustified empirical assertion” that sexual orientation is or could be “to a considerable extent reversible.” Hughes claims that there is no credible evidence (at least that Swinburne cites) that suggests that sexual orientation can be changed. Indeed, to the contrary, available evidence suggests that attempting to change one’s sexual orientation through so-called conversion therapies can actually be harmful. Hughes concludes that Swinburne’s argument is unsound.

I share Hughes’ conviction that something is wrong with Swinburne’s argument, but I don’t believe it is this premise, and I think his objection misses Swinburne’s larger conceptual point. Hughes is correct that given the current state of the relevant sciences, conversion therapies cannot reorient sexual orientations. But, as Swinburne points out, “medicine has made great strides in recent years. Diseases of mind or body hitherto believed incurable have proved curable; it would be odd if sexual orientation was the only incurable condition.”   

Though I don’t believe that being gay is a disease, I agree with Swinburne that one day sexual orientation may be reversible. Indeed, as Brian Earp and I have argued elsewhere, “based on current scientific research, it is not unlikely that medical researchers – in the not-too-distant future – will know enough about the genetic, epigenetic, neurochemical and other brain level factors that are involved in shaping sexual orientation that these variables could in fact be successfully modified.”

And here is the important point. If such neuro-interventions become available, Hughes’ objection will no longer be sound, and what happens then?  

I think a more promising approach is to object to the far weaker premise that homosexuality is a disability. If homosexuality is not a disability, and it is not morally wrong to have sex with members of the same sex, then it is not clear why we ought to invest in research on conversion therapy or encourage the use of such therapies if they become available. Without this weaker premise, Swinburne’s argument is not successful.

President Obama analyzes "Obamacare," some highlights and commentary

For those who are unaware, President Obama recently published an article at the Journal of the American Medical Association. If you follow academics on Twitter, you likely saw it. President Obama is the first sitting President to publish an academic journal article, which is kind of cool, but I don't want to dwell on that observation. The article is an analysis of the effectiveness of one of the President's signature policy initiative, the Affordable Care Act (generally called "Obamacare," a term I personally loathe... but that's another story) and associated healthcare expansions. It also includes further policy recommendations.

The article falls squarely into American healthcare policy, one of my areas of interest, so I wanted to offer a short summary of the major points of the article and some comments. The article is very short, only 7-pages, and it isn't paywalled. For those who are interested, I do suggest taking a look at the original.

The key points of the analysis are in the summary, but they are also well-chewed talking points you're likely to hear on the Sunday morning talk shows. (Well, you would hear them if the guests on such shows were inclined to indulge in arcane things like facts and statistics.) I present those claims in order of their credibility, and I dispense with some of the mushy, politically expedient anecdotes the President included that make the thing read less like a scholarly article and more like a policy speech.

1. The enactment of the Affordable Care Act, particularly the Medicaid expansion provision, is responsible for the largest decrease in the uninsured rate since the creation of medicare.

2. Predictions that the Affordable Care Act would have an adverse effects on employment seem not only unfounded, but outright mistaken.

3. The quality of care patients receive under the provisions of the Affordable Care Act is measurably better than what patients received, and various research initiatives put forward by the administration will improve that quality even further.

I take it that (1) is probably the most important claim in the article, and one of the most important claims in understanding the legacy of the Affordable Care Act. While the percentage of uninsured Americans had been decreasing since 2006 (it peaked at 15.8%; about 47 million Americans, according to the Census Bureau), the President's article shows a dramatic decrease of about 5 points during enacting the Affordable Care Act. This number is uncontroversial amongst reality-oriented people; the Census Bureau and the CDC have reported all-time lows of just under 10%.

For those who are skeptical of the causal responsibility of the Affordable Care Act initiative, President Obama's article provides a persuasive case (though hardly original) based on a few significant data-points. The most important is that there seems to be an enormous difference between states that adopted the Medicaid expansion provision and states that didn't. He provides the following graphic:

Now, for the skeptic, it is important to keep in mind that there are some pretty significant sociological differences between the states that are inclined to adopt Medicaid expansion (e.g. CA, CN, MA, NY, etc.) and those that aren't (e.g. FL, GA, SC, TX). See the current list of states that have adopted medicare expansion here to get the picture.

Still, that's not a particularly compelling argument against the ACA as much as an observation that states that aren't going to provide increased access to Medicaid are going to have fewer folks in their states who are insured. That seems basically tautological.

The more interesting version of the observation has been made by groups including the Kaiser Family Foundation, that about 11 million people gained access to Medicaid following the introduction of the expansion.

I am not sure how many hardline skeptics are going to be compelled by the data that the Affordable Care Act increased access to coverage; still, these statistics seem pretty hard to dispute and the dramatic swing following the introduction of Medicaid expansion seems to be largely facilitated by this work, given that the 11 million additions to Medicaid alone contribute to that reduction in the uninsured rate.

The second point is really just a jab, so far as I can tell, at those who said that increasing mandates on employers would lead to large scale layoffs and a dramatic increase in unemployment. There's not that much to say about those claims beyond the fact that unemployment has been dropping pretty steadily since 2010 (which, coincidentally, is when the Affordable Care Act was passed). There have been a number of claims about the "true unemployment rate" being far higher, but those claims are not supported by Census Bureau or Bureau of Labor Statistics data.

Now, no one should suggest that the Affordable Care Act improved unemployment numbers, though there have been jobs added in the healthcare industry over the last six years. (The health care and social assistance industry has been consistently adding jobs, including adding 58,000 jobs last month, June '16.) At the very least, this original objection to mandates on employer coverage seems not to have come true.

The third part of the article is the one that demands the most skepticism, and is not even really defended in the article. There is no information (so far as I can tell) that suggests qualitative healthcare outcomes have improved since the implementation of the Affordable Care Act. The Department of Health and Human Services differentiates qualitative metrics for healthcare, and while one of those metrics (namely access) has decidedly improved under the ACA, for all of the reasons sketched above, the other metrics have not followed.

It is hard to map things like patient outcomes over short periods of time, because the impact of access to healthcare in 2010 may not have a clear beneficial outcome for a patient until 2020 or 2030; this is especially true when it comes to talking about young people, who were one of the major targeted demographics in the ACA reform. It just isn't feasible to make a judgment about whether the quality of American healthcare has improved. In 15 or 20 years, when we have data done on these long term metrics, like patient outcomes in life expectancy and quality of life, we can make that judgment.

During the last few months, the President's administration has talked about the expansion of medical research in pursuit of treatments for, in particular, cancer. The goal is to improve patient outcomes through an increase in research spending, and the President acknowledges this effort in his article. This project, the "Moonshot" as they're pitching it, is not particularly well founded. Oncologist and (dare I label him as such?) sociologist of medicine Vinay Prasad has an op-ed on the scientific skepticism, there have been renewed discussions about if and how to share data, and (most cynically) it seems like a political stunt preying on the hope and naivety of those who don't understand how scientific research actually progresses. The increases in spending associated with the initiative are probably going to be good for a lot of cancer researchers, but (at a minimum) have blown expectations way out of proportion.

I'm reminded of an episode of the West Wing where President Bartlett overhears some oncologists talking about prospective treatments for cancer, and decides to announce in the State of the Union that they're going to cure cancer in a decade. (I wonder what White House aid was watching that episode, aired in 2002, and thought, "Hey, we should actually do that.")

I should say, there is no evidence that healthcare outcomes have gotten worse, and very little reason to suppose that initiatives like Moonshot will do any damage to medical research. (There are issues with apportionment and opportunity costs, but those are more technical worries than just the worry of, to quote a great philosopher, "mo' money, mo' problems.")

At best, though, there isn't adequate evidence that there have been significant improvement in patient outcomes as a result of changes in the Affordable Care Act. Those qualitative outcomes, while we might be cautiously optimistic and work hard to improve them, are something that has to be assessed more in the long term. For those who are interested in the studies on the ACA, though, President Obama's article does act as a good study of the improvements in coverage brought about by the marketplaces and Medicaid expansion, and shows that the legislation has accomplished several of its most important goals in increasing access to healthcare and decreasing the number of individuals without insurance.

Joshua Stein is a guest blogger at Neuroethics and Law. He has studied at the graduate level at New York University and is starting in the fall as a doctoral student at the University of Calgary.

Note on Neurodiversity as Method of Cases

This is a guest post by Joshua Stein; I am guest blogging through the month of June, though I've been a bit inactive during the first half of the month. Hopefully the second half will see more on this site. Thanks to Adam for inviting me.

Perhaps the best place to start is the piece of writing that got me this gig guest blogging at Neuroethics and Law this month. The article, recently published in Neuroethics, is motivated by a response to one of the most controversial sets of articles in recent ethics literature: the (in) famous after-birth abortion papers. Most importantly is Tooley's 1972 paper "Abortion and Infanticide" and the more recent rehash provocatively titled "After-birth abortion: why should the baby live?" (2013) by Alberto Giubilini and Francesca Minerva.

Like many such seminal and provocative papers, they're worth a read even if the conclusion is so wild that the argument is almost certain to be unconvincing. The purpose of the papers is to argue that there is no substantive difference in moral status between the fetus and the infant; as a result we should not regard the infant as having a prima facie right to life, since the standard philosophical view is that the fetus has no such right. I suppose that this is an interesting argument, with the caveat that individual moral status is not the only thing that determines the permissibility of killing. (Perhaps this is not obvious to everyone; I take it that there's good independent reason to accept that claim.)

The problem with these articles is that they rest on a sort of simple formulation of how moral status works: "x has moral status just in case x has some capacity c."

Different accounts of moral status have different accounts of the relevant capacities, and some allow for the possibility that there are several different capacities. For those who want my response to the particular capacity that is used by Tooley, and why it doesn't work, the article will hopefully prove a worthwhile read. However, the general concern is worth noting: For any account that requires a simple status (i.e. can be formulated in the way expressed above), especially a cognitively oriented status, there may be some actual neuroatypical adults who don't have that capacity, or at least seem to be unclear cases.

My note on the Tooley/G&M account of moral status focuses on people with certain severe varieties of depression, as their account focuses on desires directed at living; but there are other accounts that cognitive capacities ranging from psychological continuity to social capacities to linguistic capacities and on and on. It is important to regard these accounts with a critical and skeptical eye, because there is a lot of neurodiversity and, in the vast majority of cases, we recognize the moral status of neuroatypical persons. (I do note in the paper that some folks may want to deny the moral status in certain cases, and that's certainly a live option, but it also isn't the default position.) Many of the early discussions of moral status, put forward by Dennett, Warren, inter alia, are multi-conditional and avoid this issue, despite making the conversation much more complicated.

Neurodiversity is, in many cases, a thought experiment made immediate and important, and the way that we handle cognitive difference (and similarity) within members of our own species and beyond has been one of the most important ongoing discussions in both theoretical and applied ethics. There are many hard cases that I think require paper-length discussion, and perhaps even book-length discussion, and probably aren't going to see any real progress in a blog entry. (Severe cases of major depressive disorder get that treatment in my article; there are further books to be written on Alzheimers', understanding the status of children, of animals, of individuals with dissociated identities, etc.)

The depression case is one such instance; when we consider the moral status of a set of individuals based on the presence or absence of a certain cognitive feature, updates to our account of those individuals bear on the larger set of individuals, and this is the challenge with the available discussion of the relationship between infanticide and depression. One of the challenges that I want to put forward as a serious methodological consideration for those doing ethics and metaethics is to consider neurodiversity when looking at proposals for developing conceptual and normative frameworks. While there are disputes about how well the method of cases works at fleshing out logical space, getting cases in the actual world right seems like a rather important priority.

How can the public policy on cognitive enhancement be improved? (by Veljko Dubljevic)

 

In my previous post, I presented and responded to some more objections to the argument about regulation of cognitive enhancement (CE) and the economic disincentives model (EDM). Namely, there has been a considerable amount of constructive criticism regarding my proposal. Some neuroethicists took issue with my favoring prohibitive policies to dangerous CE drugs such as Amphetamine (e.g. Adderall), others took issue with the conclusion that EDM could be an option for public policy on extended release forms of Methylphenidate (e.g. Ritalin SR), and there are those that think my argument in general and EDM in particular are failing to address the relevant issues in regulation of CE. In three separate posts I have responded to these objections.

            In this post I'll explore and respond to several suggestions from neuroethicists who focus less on shortcomings, and more on suggestions on how the argument and model of public policy might be improved: Hank Greely and Forlini et al.

 

Greely on some first steps toward responsible use of CE

 

            Hank Greely starts by praising the analysis of  the safety and efficacy of Ritalin and Adderall. He finds particularly important the analysis of the differences between the extended release and the instant release forms of medications. He notes the necessity to go beyond summarizing the existing research to pointing out what further research would be useful. He points out that we know very little about the effects of long-term use, either regular or sporadic, of these drugs on healthy adults. He also notes that it is also necessary to have a discussion of mechanisms to assure that unbiased scientists would produce relevant research on various cognitive-enhancing drugs.

            After pointing out strengths of my analysis and potential areas of improvement, he briefly criticizes my dismissal of the proposal for a “Regulatory Authority for Cognitive Enhancement” (RACE).

 

Greely's objections

 

 Even though he agrees with me that creating a new statutory regulatory body like RACE is difficult and expensive, and that it might not conform to the 1971 UN Convention on Psychotropic Substances, he thinks that those flaws might be overcome. His proposal is similar to mine - the use of an existing agency, similar to the Food and Drug Administration (FDA) in the United States. He contends that FDA might be better placed not only to make comparisons between safety aspects of different drugs, but also to forecast problems for which intermediate regulatory models would respond, and examine, carefully, the match between those problems and available solutions. Greely points out that the focus of my analysis was on legitimate or appropriate policies, not about feasible politics.

He concludes that more needs to be said about foreseeable ways in non-ideal conditions of politics may affect even ideal recommendations. He does note the constraints of space and my limited case analysis is a good start for further discussion, by experts, governments, and the public. 

 

Reply to Greely

 

            First of all, I would like to thank Prof. Greely for his kind words and constructive suggestions. Indeed, he is right that more needs to be said on a range of topics, from feasible politics via other  possible models to discussing further avenues of unbiased research on CE drugs. He has also very graciously provided explanations why these shortcomings are to be expected in any analysis, and basically offered more words of praise for my whole research project. However, I do feel the need to clarify one issue. Even though he believes that RACE could be amended to outmatch EDM as a regulatory solution, the argument has not been provided yet. Furthermore, the precise reasons why EDM is more preferable to RACE go beyond a limited case analysis of two stimulant drugs and delve deep into the values of a democratic society. For example, the questions of justice and accumulation of power cast serious doubts on RACE. The provisions of EDM, on the other hand, are precisely motivated by these “ideal” concerns of respect for individual decision-making and benefiting the least advantaged, as opposed to merely efficiently regulating the market.

            The question of more substantive values beyond safety and efficacy is precisely the point which is raised by other neuroethicists with constructive suggestions.

 

Forlini et al. on stakeholder perspectives

 

    Cynthia Forlini, Eric Racine, Jochen Vollmann and Jan Schildmann agree with my case-by-case approach, but they argue that public policies on CE should not only be based on an assessment of benefits and harms of the substances but also be informed by evidence on the perceptions and views of the groups that are affected by CE (i.e., stakeholders). They point out that assessment of evidence may be influenced by the experts’ personal perceptions, experiences, and values and that the assessment of benefits and harms may well differ depending on whether a person is directly affected by a policy recommendation or not. They emphasize the fact that the involvement of stakeholders affected by policies has been incorporated as a requirement for the assessment of the quality of clinical guidelines. They add that empirical research indicates that stakeholder views on the appropriateness of a policy rest on more fundamental values that could be promoted or jeopardized by a liberal policy.

 

Objections by Forlini et al.

            Forlini et al. also point out that their research showed that effort put into an academic performance, which is linked to the authenticity of persons, is an important value to consider for stakeholders. The further point of criticism Forlini et al. Raise is that my argument did not distinguish between requirements of moral acceptability (e.g. efficacy, safety and respect for autonomy) from the requirements of moral praiseworthiness (e.g., self-realization, moral growth, justice). They conclude that research on stakeholder perspectives shows that the criterion of moral praiseworthiness captures concerns about the impact of cognitive enhancement on values beyond safety and efficacy.

 

Reply to Forlini et al.

 

            I would like to thank Forlini et al. for pointing out aspects that need to be included to increase democratic legitimacy of any proposal regarding regulation of CE. Indeed, the analysis of social harms of stimulants should include the points of view of general practitioners who prescribe stimulants and those who use stimulants, whether to deal with a medical condition or as a study aid. Not only would that provide valuable information, but it would also further promote values of the democratic society. As I have noted above, I also agree with the need to go beyond safety, efficacy and autonomy – the questions of justice and not jeopardizing self-realization (e.g. the right to an open future) are indeed important. However, I strongly disagree with their conclusion regarding authenticity and moral growth as criteria for public policy. Namely, as I argued in my first post and article, these could be included at the level of personal or even institutional (e.g., University) choice, but not at the level of society.

 

A general thank you

 

            Having responded to all comments on my article, I would like to thank everyone who engaged with my research, whether they are neuroethicists who commented on my published work or readers of this blog who were interested in the arguments. A special thank you to Prof. Adam Kolber for inviting me to be a guest blogger at the Neuroethics and Law Blog.

            If you are interested in more of my neuroethics research and arguments, you can check out my recent article in American Journal of Bioethics – Neuroscience. Other than that, I can only say, stay tuned. There is more to come on a range of topics: from regulation of CE technology and neuroscientific challenges to ideals of democracy to “neuroscience of ethics” and moral heuristics.

Does the Economic Disincentives Model fail to address the right issues? (by Veljko Dubljevic)

 

In my previous post, I presented and responded to some more objections to the argument about regulation of cognitive enhancement (CE) and the economic disincentives model (EDM). Namely, there has been a considerable amount of constructive criticism regarding my proposal. Some neuroethicists took issue with my favoring prohibitive policies to dangerous CE drugs such as Amphetamine (e.g. Adderall), while others took issue with the conclusion that EDM could be an option for public policy on extended release forms of Methylphenidate (e.g. Ritalin SR). In two separate posts I have answered these objections.

In this post I'll explore and respond to several objections from neuroethicists who think my argument on policy options in general and EDM in particular are failing to address the relevant issues in regulation of CE: Jamie Nicole LaBuzetta, Brewer & De Grote, and Jessica Flanigan.

 

LaBuzetta on the ethics of a better “Smart Drug”

 

Jamie Nicole LaBuzzeta argees that the case for regulation of Ritalin and Adderall is compeling. However, she thinks that it can nevertheless problematic when the same rationale is applied to other drugs with improved risk to benefit ratios. When applied to safer ‘smart drugs’ such as modafinil, an evidence-based regulatory model might actually seem to compel their use. Such a compulsion would be contrary to the very idea of liberty and autonomy, but perhaps there are other ideas and values that should take precedence.

She argues that it is plausible and reasonable to demand from individuals working in high-responsibility roles, such as military, medical, and aeronautical professions to use a safe and effective cognitive enhancing medication, such as modafinil. She considers different principles that could support her conclusion and opts for Utilitarianism.

 

Reply to LaBuzetta

 

First of all, I am well aware that, due to reasons of space, my article on Ritalin and Adderall, left out some very important CE drugs, such as Modafinil. However, I believe that EDM can be successfully extended to most new CE drugs that are not too dangerous and/or addictive. The reason for this is that newer CE drugs are likely to have many unknown effects. Even if clinical studies prove they are safe and effective for specific pathologies, the data on effects of prolonged use needs to be somehow generated. EDM, with the requirement of annual medical testing and additional insurance is specifically designed to fill that gap.

 

Limits of Utilitarianism

 

Regarding mandatory use by certain professions such as military pilots, LaBuzetta is right to note that these are issues that EDM did not tackle. Indeed, military pilots are frequently ordered to take even dangerous amphetamines on prolonged combat missions. However, I think that her choice for Utilitarianism as the right ethical framework for regulating these specific cases is problematic, because it demands too much information and cognitive resources for decision making which is not available and thus is not feasible.

 

Foreseeable consequences are not enough

 

Utilitarianism requires that all alternative responses are considered, to calculate all consequences of all identified options, to predict and develop contingency plans for all unintended consequences, and to calculate the probability that a certain response sets a precedent for other circumstances where the information may be less reliable. All this creates a nice optimization model, but no mind or machine can solve moral problems in this way. In the real world, even with “safer” smart drugs we just don't know enough to rely on foreseeable consequences alone. That is why in any discussion on regulatory options, in addition to consequences, we need to take rights and virtues seriously.

However, others have different objections: even if we opt for deontological principles, such as justice, EDM may fail to promote it.

 

Brewer and De Grote on EDM and social inequality

 

Cameron Brewer and Heather De Grote argue that if principles of bio-medical ethics are considered more thoroughly (specifically, the principles of justice and non-maleficence), EDM must be rejected. They claim that EDM is at odds with the “fair opportunity” rule: it would deny the social benefits of enhancement on the basis of undeserved disadvantageous properties. They grant that some form of “discourage use” model might be applicable, but that it should not be as costly to the consumer as EDM.

 

Brewer's and De Grote's other objections

 

According to Brewer and De Grote, EDM would almost certainly create an even greater gap between the haves and have-nots. It would effectively deny the social benefits of extended release formulas of methylphenidate to the economically disadvantaged. Furthermore, they argue that EDM would harm the interests of the disadvantaged, as it would exacerbate the already increasing academic achievement gap between the rich and the poor. EDM would ensure that only those with higher incomes would be able to buy and use methylphenidate, while the poor would have to keep their uphill struggle for academic achievement without it.

 

Reply to Brewer and De Grote

 

Since EDM has been developed precisely as a means to protect the rights and interests of the disadvantaged, this is a serious objection. However, Brewer's and De Grote's argument would only be convincing if EDM would make CE drugs so expensive as to be unaffordable for the poor. Consider once more the analogy with tobacco: discourage use policies on tobacco introduces taxes, which are sometimes very high. In Norway, they amount to 200%. And yet, even though cigarettes are not cheap, most smokers in Norway live in poorer regions and earn low incomes. Now, it is obvious that extra taxation did not make tobacco unaffordable to the poor. Indeed, EDM envisions that the prices of CE drugs would be regulated: they would contain the standard costs of production and distribution, the profit margin would be limited and an additional tax would be imposed. This means that regulation could be fine-tuned if it turns out that the poor are disadvantaged in academic achievement due to the price of CE drugs.

 

Do CE drugs offer advantages or disadvantages?

An additional problem for Brewer's and De Grote's objection is that they seem to assume that CE drugs would offer only a competitive advantage, and no health disadvantages. This is problematic in several respects. Even though nicotine can also be seen as a mild cognitive enhancer, it offers mostly health disadvantages. Given that stimulants are known to cause nervousness, drowsiness, insomnia, adverse effects during pregnancy, and even serious cardiovascular adverse events, ignoring these effects as potential disadvantages seriously undermines the argument. Indeed, EDM's requirements of training and licensing for CE users actually protect the interests and rights of the disadvantaged, who are frequently targeted by promotional practices of industry which promise social and other advantages by use of their product. That is why I find the argument that EDM would be rejected based on the principle of fair opportunity unconvincing.

But, maybe autonomy should take precedence over justice, and perhaps my argument for different regulatory responses fails to respect autonomy sufficiently.

 

Flanigan on respect for autonomy and epistemic position of regulators

 

Jessica Flanigan argues that even amphetamine and instant release forms of methylphenidate should be legally available because 1) prohibitions of recreational drugs are disrespectful to users 2) even addicts are sufficiently autonomous with respect to their choice to use drugs and 3) regulators are not in the best epistemic position to judge whether the risks of amphetamine and instant release forms of methylphenidate warrant prohibition. She insists that even though some drugs reliably undermine users’ life-plans and autonomous capacities, policymakers should nevertheless permit drug use because the appropriate response to the value of autonomy is respect, not to promote autonomy.

 

Flanigan's other objections

 

Flanigan also thinks that my argument rests on a dubious characterization of the psychology of addiction, as some empirical evidence suggests that addicts are autonomous when they choose to use drugs. Finally, she claims that it is illiberal to permit or prohibit drugs based on a judgment about whether the potential benefits to the user justify the risks users face. Her view is that consumers have the authority to decide for themselves whether it is worth it to risk their health for the sake of pharmacological benefits, either for enhancement or recreation.

 

Reply to Flanigan

 

Even though I agree with Flanigan that autonomy is very important, and that the state needs to respect it, I disagree with her view on what such respect entails. Consider the following analogy: many individuals might find explosives and rocket-launchers helpful or fascinating for their rational life-plans, and these could be used responsibly (e.g. as a part of weapons collection or for leveling the ground). However, the threat of irresponsible use of such objects is such a danger to others that the state is justified in prohibiting possession of rocket launchers and explosives by members of the general public. As it is reasonable to endorse a system in which people are not allowed to walk around with explosives and rocket-launchers, it is perfectly rational and in accordance to autonomy to limit availability of amphetamines.

 

Respect for autonomy suitably defined

 

Namely, a substance for which there is overwhelming empirical proof that it can impair cognitive and volitional capacities (the presuppositions of autonomy), and cause aggression, erratic and violent behavior, is not (and should not be) subject only to the authority of the consumer. However, in my article I do note the need to respect even some of the more self-destructive wishes of competent adults. Indeed, I have concluded that when a person does voluntarily and autonomously choose to consume amphetamines with full knowledge of their addictive properties and harmful physiological and social consequences, the society would only be legitimate in punishing the producers and distributors of these drugs, but not the users.

 

Having answered the questions and issues raised by the authors who find faults with my argument and EDM, it is time to respond to additional points of view. Namely, instead of focusing on shortcomings, some neuroethicists have offered constructive suggestions on how the argument and model might be improved. So what do they suggest? And how do I respond? Stay tuned to find out...

 

Is the Economic Disincentives Model too permissive? (by Veljko Dubljevic)

 

In my previous post, I presented and refuted some of the objections to the economic disincentives model (EDM). Namely, not everyone agreed with my conclusions. There has been a considerable amount of constructive criticism regarding my proposal. Some neuroethicists took issue with my favoring prohibitive policies to dangerous CE drugs – recall that previously I concluded that all forms of Amphetamine (including Adderall) need to be prohibited, However, others took issue with the conclusion that the economic disincentives model (EDM) could be an option for public policy on extended release forms of Methylphenidate.

In this post, since it makes sense to group similar objections together, I'll explore and answer several objections from neuroethicists that think EDM is too permissive: Hall et al., Faulmüller et al., and Van der Eijk.

 

Hall et al. on constraints for regulatory options

 

Wayne Hall, Brad Partridge, and Jayne Lucke claim that my proposal sounds plausible but that there is a number of major problems with it. They insist that it should not be assumed that sustained release forms of drugs will be safer than immediate release forms when these drugs are widely used in the community. They also have doubts about the feasibility and effectiveness of EDM. Namely, they think that tight regulations, licensing and high taxes would be major disincentives for both the pharmaceutical industry and would-be stimulant users, so EDM may actually boost grey- or black-market for stimulants.

 

Other objections of Hall et al.

 

Hall et al. also contend that EDM would require a modification of the 1971 UN Convention on Psychotropic drugs. Furthermore, they think that the bioethical debate about enhancement use of stimulants might have disastrous consequences. Namely, proposals for liberalization of enhancement use of stimulants might actually lead to severe restrictions if not prohibition even of medical use of these substances, because society might recognize such use as an increasing social problem. This would make the population that really needs these medications as treatment for ADHD and other conditions vulnerable.

 

Reply to Hall et al.

 

I agree with Hall et al. that it should not be taken for granted that sustained release forms of drugs will be safer than immediate release forms. Indeed, in my proposal I have insisted that the danger profile of methylphenidate would have to be carefully analyzed and empirical studies confirmed by independent researchers before any change in current prohibitive policy is allowed. As for the worry that EDM may actually boost grey- or black-market for stimulants, it is safe to assume that it will not boost it any more than prohibitive policies do. On the contrary, if there are legal means of marketing or obtaining a commodity, the majority will prefer to act within the bounds of the law.

 

On repercussions of advocating liberal policies

 

Regarding the conclusion that EDM, or any other liberal policy, would require a modification of the 1971 UN Convention, their argument is not convincing. Article 3 of that convention states that a preparation may be exempted from the current regulatory regime if it is compounded in such a way that it presents no, or a negligible, risk of abuse and the substance cannot be recovered by readily applicable means. As I noted above, whether this is the case with extended release forms of methylphenidate is an empirical question which can be settled with sufficient research.

Finally, adverse reactions by conservative factions are hardly reason enough to censor the bioethical discussion. Indeed, different policies are (and should be) judged by their merits – including the ability to provide reliable information on the prevalence of use. Therefore, even if there was a rash prohibitive response to liberal policies on stimulants that would restrict medical use, such responses would be short-lived, as they benefit no one and harm the interests of many citizens.

But others have different objections: cognitive enhancement can cause more harms then just physiological dangers.

 

Faulmüller et al. on the indirect psyhological costs of cognitive enhancement

 

Nadira Faulmüller, Hannah Maslen and Filippo Santoni de Sio argue that new cognitive enhancers are psychologically different from other, well-known drugs such as caffeine, because they are perceived negatively by the public. They point out that psychological valence accounts for much. Namely, some of the “old” substances like alcohol might be objectively more dangerous than methylphenidate. However, they are loosely regulated because they are perceived more favorably, and even as socially desirable. Moreover, new enhancers are not only judged negatively, but their efficacy is strongly exaggerated by lay people. Independently of any direct negative physiological effects, enhancers might generate some indirect psychological costs, such as: attribution of performance (any success users might achieve would be attributed to the enhancer), dehumanization (users might be perceived as being more similar to automatons), and ostracism (enhancement users may be shunned by others).

 

Reply to Faulmüller et al.

 

I agree with Faulmüller et al. that views of the lay public need to be taken into account. However, these views can also be changed as a result of sufficient information. Consider yet again the example of tobacco: smokers used to be considered socially more apt and/or desirable, but thanks to the information on objective harms of tobacco, nowadays smoking is more likely to be seen as a sign of weakness or poor taste. Indeed, smokers are increasingly ostracized, and that is precisely the point of any „discourage use“ policy, including EDM. As for dehumanization and misattribution of performance, even though some people might have such exaggerated reactions to the use of enhancers, these concerns are generally matters relevant for individual choice, but not relevant for public policy. Public policy in democratic societies usually protects autonomous choice of individuals, as long as this does not harm others.

However, some are convinced that my analogy with tobacco is precisely the reason to support a more prohibitive response.

 

Van der Eijk on the analogy with tobacco

 

Yvette van der Eijk claims that arguing for EDM based on an analogy with tobacco might not be persuasive, since tobacco control policy is taking a turn toward prohibition. She explains the idea of a “tobacco endgame”, the complete phasing out of tobacco consumption by prohibiting sale to newer generations even when they reach the age of adulthood. Apparently, this idea has become popular in the tobacco control literature in recent years, and is already being considered in several countries. She defends such prohibitive responses by pointing out the addictive properties of nicotine, and further distinguishing between recreational and „addiction maintenance“ use. The addictive properties of nicotine guarantee a high proportion of „maintenance smokers“, which in turn means that discouragement policies are unlikely to have much effect. Hence the only really feasible solution would be to prevent people from becoming addicted in the first place by prohibiting the substance for the newer generation and „phasing out“ the „old“ users.

 

Reply to Van der Eijk

 

I agree with Van der Eijk that smoking is a nasty habit that causes considerable amount of harm and often leads to dependance. Indeed, most long-term smokers need substantial interference by outside factors in order to get rid of the habit, and even if they are successful there is the danger of relapse. However, we should keep in mind that protecting autonomy and life-plans of some should not be done by severely restricting autonomy and life-plans of all. A harm that is restricted to self should not be made illegal lightly - that would mean that for example a “tattoo free” generation might be the next move of some conservative factions.

 

More is needed to justify prohibition

 

Van der Eijk's argument on „addiction maintenance“ has more merit. However, not every dependance is the same. In another article I provide a longer argument, but in this context I think it suffices to note that dependance on nicotine does not entirely disrupt all other rational life-plans a person might have, whereas addiction to say heroin does. For instance, while smoking a person can also be meaningfully socially connected in various capacities. Opposed to that, full-blown heroin addicts will often engage in risky, degrading and illegal activities, which is not acceptable as a rational life plan under fair terms of social cooperation. If smokers want to keep their habit in the privacy of their homes, society is hard pressed to find faults in their right to do so.

The question of arbitrary discrimination of younger adults is an additional reason to believe that „end games“ or any other prohibitive policy on tobacco would be a failed and illegitimate social policy. Indeed, even though the idea is being considered in several countries, such a response would be short-lived, at least in liberal-democratic countries.

 

Having answered the questions and issues raised by the authors who think EDM is too permissive, it is time to respond to additional points of view. Namely, some think that the shortcomings of EDM are not that it is too permissive, or too conservative, but that it ultimately fails to protect the values of democratic society it purports to defend. To what do they object? And how do I respond? Stay tuned to find out...

Is the Economic Disincentives Model too conservative? (by Veljko Dubljevic)

 

In my previous post, I analyzed the dangers of using Adderall and Ritalin for cognitive enhancement (CE). I concluded that anything beyond the prescribed therapeutic use of any form of Amphetamine, including Adderall, needs to be prohibited, while the economic disincentives model (EDM) could be an option for public policy on extended release forms of Methylphenidate (like Ritalin-SR). However, not everyone agreed with my conclusions. There has been a considerable amount of constructive criticism regarding my proposal, written by some influential neuroethicists. In this post, I'll explore and answer several objections.

 

            Since it makes sense to respond to similar objections together, I'll first review the objections coming from the Oxford “pro-enhancement group”: Anders Sandberg, Neil Levy, and Julian Savulescu.

 

Sandberg on the value of CE and proper information

 

            Even though Sandberg does not entirely disagree with my analysis, he insists that there could exist other enhancers besides psychostimulants that might have very different usage and risk profiles and that are likely to lack autonomy-impairing addiction properties. According to him, they are likely even safer than the extended release methylphenidate and are not legislated by any UN Convention. As such, they should hence be regulated even more permissively. He contends that the greatest problem for regulation is insufficient information, and that the method used to regulate enhancers will affect what information will become available for fine-tuning policy.

 

Sandberg's other objections

 

            Even though we both agree on the point that bans and laissez-faire approaches do not provide the necessary information, Sandberg argues that adding taxes and fees as suggested in EDM does not give much feedback except usage statistics. Even though he acknowledges that having licensed users undergo regular medical tests (as envisioned by EDM) would provide more relevant information, he considers that EDM would risk creating principal-agent problems between the interests of users, companies, testing bodies and society in general. Society would benefit from extensive and careful testing, while users would not be interested in paying too much money and privacy for it. He concludes that the way to minimize harm would be to accumulate relevant information as early and accurately as possible, which entails a liberal permissible regulation of safer enhancers.

 

Reply to Sandberg

 

            I heartily agree with Sandberg that regulatory models which could provide the missing information would be more effective, even if their preliminary assumptions turn out to be incorrect in the long run. I also agree that there might be more CE drugs to which a moderately liberal regulatory approach could be applied (e.g. Modafinil). However, Sandberg failed to provide a realistic alternative model, so, apart from extending EDM, there is no feasible alternative option from which to choose. Even though EDM might need lots of fine tuning, that can only be done once it (or a similar model) is implemented and the information on the health costs associated with CE drug use becomes known.

 

Licensing defended

 

            His other concern is with the acceptability of the licensing procedure and other measures in EDM. However, similar requirements are accepted worldwide in the case of vehicles: in order to use them, a person must pay fees for a training course and pass an exam as proof of competence. Then, when the vehicle is bought, taxes should be paid. In order to use the vehicle, an appropriate insurance must be taken and both the vehicle and the driver should be registered by a government agency. Finally, while using the vehicle, taxes on fuel, tolls and appropriate fees for regular technical check-ups must be paid. Since all these measures are readily accepted, there is no reason to doubt the acceptability of similar measures in EDM.

            But others have different objections: CE can be achieved in more ways than one. Instead of medical drugs, people might be using trace elements, vaccines or medical devices.

 

Levy's objections

 

            Neil Levy agreed that EDM may be appropriate for regulating extended release forms of Methylphenidate and that Amphetamines need to be prohibited. After this endorsement, he took issue with my ruling out of mandatory use for other forms of CE. He argued that in other instances, the costs can be low enough, and the benefits great enough, to make it appropriate to require enhancement. He gives the examples of vaccination and fluoride in the water supply, which allegedly override any informed choice regarding use.

 

Reply to Levy

 

            As for Levy's comments about the applicability of mandatory cognitive enhancement use and his example of fluoride, there is a huge difference in providing trace elements that might increase the health of the population and providing mind-altering drugs. That being said, the use of fluoride in his example is actually not mandatory. Many people purchase bottled water or use carbon filtering, and the coercive power of the state is not brought to bear on them to change these practices. Mandatory use is indeed very hard to justify. Even vaccination is mandatory mostly for minors – in this case the state could sometimes override the wishes of the parents because the life and interests of a person not yet capable to make autonomous choices is at stake, and the parent's choice could be dictated by religious or other reasons that the minor might not endorse. However, in the case of adults, barring a major health disaster (e.g., plague outbreak), coercion backed by the immense power of the state needs to be limited, even if society and individuals might perhaps benefit by state intrusion.

 

Autonomy defended

 

To give one example, governments that have historically made mind-altering drugs mandatory (e.g., Togo militarists in Japan during the 2^nd world war) have found it easy to make such legal requirements. Making something mandatory is easy – a law that suits the purposes of the elite is just enforced and backed by sanctions. However, such a law would not be legitimate or democratic. Levy is right in that I have dismissed mandatory use without too much space allocated to discussing the issue. However, I have relied on democratic values and the overwhelming demand to respect the autonomy of citizens as being tacitly assumed.

            However, some are unconvinced that my conclusions regarding autonomy are sound, and presume that a liberal-consequentialist perspective would render any prohibitive response illegitimate.

 

Savulescu's objections

 

            Savulescu contends that my proposal is too conservative and too prohibitive when viewed from a liberal consequentialist perspective. He relies on the argument from Mill's On Liberty to show that any intrusion of the state is illiberal and undemocratic.

            He takes issue with my claim that the use of amphetamines (like Adderall) would lead to the undermining of autonomy and addiction, and argues that addiction is primarily imprudent pleasure seeking and that addicts are not incompetent and need not be harming anyone else. Consequently, they should be free to harm themselves, and the state should not interfere with their freedom.

 

Reply to Savulescu

 

            First of all, Savulescu's claim that my proposal is too conservative is problematic. Since “conservative” is defined as “Holding to traditional attitudes and values and cautious about change or innovation” and the EDM proposes a drastic change in regulation of methylphenidate, my proposal is everything but conservative. He might be opposed to prohibition of amphetamines, but since Amphetamine can cause aggression, impulsivity, manic behavior and psychotic episodes, and so can cause considerable danger to users and others, a form of prohibition might be legitimate even based on a liberal-consequentialist reading. However, if an individual, for whatever reason, voluntarily and autonomously chooses to consume illicit drugs with full knowledge of their addictive properties and harmful physiological and social consequences, the society would be legitimate in punishing the producers and distributors of illicit drugs, while drug addicts might need to be treated and not punished. To conclude, an argument based on autonomy does exclude certain types of prohibition (prohibition of possession and use) but not others (prohibition of production and sale).

 

            Having answered the questions and issues raised by the Oxford group, it is time to respond to other points of view. Namely, not everyone thinks that my proposal is too conservative. Quite to the contrary, some think it is too permissive. To what do they object? And how do I respond? Stay tuned to find out...

How to regulate Ritalin and Adderall (by Veljko Dubljevic)

 

            In my previous post, I presented an analysis of different regulatory environments. The economic disincentives model (EDM) proved to be the most efficient option for public policy on cognitive enhancement (CE). As with smoking regulation, the EDM provides a framework in which both CE-users and non-enhancers can follow their personal preferences. The remaining question was whether we should use the EDM for all available CE drugs.

In my paper "Prohibition or Coffee-shops: Regulation of Amphetamine and Methylphenidate for Enhancement Use by Healthy Adults", I returned to the question of side-effects. I analyzed available information on two of the most commonly used CE drugs: Adderall and Ritalin. The question that was left unanswered in the first post (and article) was: is the use of Adderall and Ritalin most like using coffee, cocaine, or tobacco? In previous posts, I argued against their use being similar to coffee use and argued for the EDM, which is similar to and yet more profound than our current regulation of tobacco. To cut a long story short, while the use of Ritalin is more ambiguous, the use of Adderall is more like using illicit drugs such as “speed”, since the substances are more or less the same: Amphetamine.

 

            What is the fuss all about?

 

Even if we take the danger of Amphetamine at face value, the use of both Adderall (Amphetamine) and Ritalin (Methylphenidate) for CE has to be distinguished from both therapeutic and ordinary illicit uses (i.e. to get high). They work on dopamine levels in the brain, which is the reason why they are prescribed in the first place. To simplify things, people with ADHD don't have enough dopamine, so the drugs help. Healthy people can “boost” their performance as well, especially when they are tired. However, meddling with dopamine can be dangerous, since too much dopamine can cause a lot of bad side-effects, including addiction.

That is why both Ritalin (and all other forms of Methylphenidate) and Amphetamine are currently on controlled substance lists all over the world. In fact, the United Nations 1971 Convention on Psychotropic Substances explicitly lists Methylphenidate as a Schedule II drug (dangerous substance with known medical uses).

 

So, what is the danger?

 

Even though they can be useful, the side-effects are dangerous. Apart from nervousness, drowsiness, insomnia, and problems during pregnancy, both Ritalin and Adderall could cause serious heart trouble and addiction. The most immediate effect is the increase in blood pressure, which could be dangerous and may even cause sudden death. They are especially dangerous if they are used in high quantities, injected directly into the bloodstream, or inhaled. Namely, the standard oral use (in moderate quantities) of both these drugs is more or less safe. However, if injected or inhaled, the drug can create a “rush”, euphoria (“high”), and even manic episodes similar to schizophrenia. Not nice.

 

What to do with them?

 

Again, we must remember that, even though most people have no idea how dangerous Ritalin and Adderall can be, they are not using them to get high. They use them to be able to work longer. But the danger identified above make it clear that we cannot regulate them like coffee, but, even though the picture may be clear for Amphetamine, which is extremely dangerous, there is a difference between various formulas of Methylphenidate. Time-release technology can make Ritalin safer, so that it can only be used as a pill that would guarantee no rush, no high, and less danger of addiction. Amphetamine is just too dangerous in all forms.

 

 

But what about the UN Convention?

 

States that have signed it can't just ignore the 1971 UN Convention. Even if they did, most countries have made laws that reflect the provisions of the Convention. For example, in the United States, the Psychotropic Substances Act of 1978 explicitly ensures compliance with the convention: “It is the intent of the Congress that the amendments made by this Act, together with existing law, will enable the United States to meet all of its obligations under the Convention and that no further legislation will be necessary for that purpose” (21U.S.C.§801a). So, is that it? Prohibition for all CE drugs?

 

CE use does not have to be abuse

 

The UN Convention of 1971 regulates abuse of drugs. It also states that a preparation may be exempted from prohibition if it is compounded so that it presents no, or a negligible, risk of abuse and that it does not give rise to a public health and social problem. Since extended release formulas of Methylphenidate (e.g. Ritalin-SR) might meet this criterion, this might make a “discourage use” type of policy like the EDM more or less appropriate. However, the Convention requires the following measures: a) licenses for manufacture; b) statistical records of quantity, date, supplier and recipient; c) prohibition of and restrictions on its export and import; d) inspection of manufacturers, distributors and users; e) statistical reports of use, abuse and commerce for the UN and f) criminal prosecution of illicit manufacture and sale.

 

            Economic Disincentives Model has all that

 

The Economic Disincentives Model (EDM) includes all the requirements from the Convention and more because the dangers should not be taken lightly. Recall that EDM envisions a licensing procedure for users including a course about known effects and side effects, passing an exam as proof of knowledge, additional medical insurance, and obligatory annual medical tests. Recall that the issue was the right to use and not to use certain substances. Similarly to smokers, would-be CE users, if they know what they are doing, should have the right to do it. Similarly to non-smokers, no one should be forced to bear the effects of such use unwillingly. EDM guaranties the rights of all.

However, not everyone agrees. There has been a debate on my conclusions among some influential neuroethicists. To what do they object and how do I respond? Stay tuned to find out...

 

How to model indirect coercion to use cognitive enhancement? (by Veljko Dubljevic)

 

In my previous post, I presented the economic disincentives model (EDM) as the most legitimate public policy on cognitive enhancement (CE). I argued that such measures could appropriately protect the interests of all citizens from indirect coercion. The open question was how can we be certain that there is or might be indirect coercion to use CE.

In my paper "Cognitive Enhancement, Rational Choice and Justification" I analyzed whether the fears about social pressure or indirect coercion are founded by using rational choice modeling. I used a qualitative modeling strategy because of the lack of reliable data for quantification.

 

The How and Why of CE use

 

Currently available data on prevalence varies greatly among different surveys and ranges from 5% to 35%. Furthermore, the lack of adequate information on long term effects and even short term benefits (the issue how laboratory findings of improvement in cognition relate to everyday performance is far from clear) further complicates the matter. A purely quantitative rational choice modeling strategy would require reliable data, which is not available. Bearing all this in mind, numerical payoffs in the design of dilemmas could not be assigned, and we have to make do with a qualitative analysis. This also points toward the conclusion that regulatory models which could provide the missing information would be more effective, even if their preliminary assumptions turn out to be incorrect in the long run. So how can this be modeled at this moment? The social pressure to enhance could be modeled as a multi-person Prisoners´ Dilemma.

 

Should Alison use CE?

 

Let's assume that Alison is assessing her options before an important cognitively demanding test, which could influence the availability of certain options in the future. (I have deliberately left Alison's situation as vague as possible, since this approach should be able to model choices for a diverse class of rational agents in a competitive setting – from students to employees of a corporation.) Her options could be modeled as a game in which Alison is playing against all other competitors:

 

Display 1: A Basic Multi-Person Prisoners´ Dilemma on CE

 

	Many others do not use CE	Most others use CE
Alison uses CE	Alison gains competitive advantage over others, but pays the associated health costs	Alison gains no advantage, and pays the associated health costs.
Alison refrains from using CE	Alison does not gain any advantage. She competes on equal footing with those that do not use CE. However, if resources are very scarce, her chances are reduced if at least one competitor is using CE.	Alison does not gain any advantage, and in fact she is disadvantaged.

 

Chain reaction of CE use

 

As can be seen from Display 1, the decision is influenced by the choices of others, and uncertainty about the use of others leads to using CE being the dominant choice under the circumstances. Furthermore, regardless of whether Alison wants to maximize her maximum payoffs or just maximize the minimum, she would have to use CE. And this does not presuppose any stance on CE. Taking CE has not been labeled as cheating nor preferable – the Prisoners´ Dilemma has been neutral toward personal preferences. When these are introduced this analysis also explains the finding that many people who would otherwise refuse to give CE to their children, would reluctantly do that if other children in the same school are using CE. The conclusion is that if a sufficient number of people expect others to use CE in a given competitive environment that might be enough to start the chain reaction. So why don't we just prohibit CE and be done with it?

 

Prohibition doesn't work

 

Consider the situation in Germany – CE is nominally prohibited there: the possession and use of stimulants such as Ritalin without a prescription is a criminal offense which could be sanctioned by up to three years in prison. Prescribing stimulants to healthy adults is also a criminal offense. And yet according to available data 33.4% of Ritalin is used off-label, while 12.6% is used without any diagnosis. Perhaps this ineffectiveness of prohibition could be offset in the future by random testing procedures, which are currently not in place.

Let´s try to model this situation again with Alison. Let´s assume that most others do not use CE (as it is prohibited) and that there is a procedure of random testing for CE (since doping tests on every exam would be too costly). Alison´s options should be modeled now as a game in which she is playing against the system:

 

Display 2: Dilemma on CE in a Prohibitive Environment

 

	There is no test	There is an appropriate test
Alison uses CE	Alison gains competitive advantage over others, but she pays the associated health costs.	Alison gets caught. Depending on the sanctions she is either merely disadvantaged or severely limited in available options, and pays the associated health costs.
Alison refrains from using CE	Alison doesn´t gain any advantage. She competes on equal footing with those that do not use CE. However, if resources are very scarce, her chances are reduced if at least one competitor is using CE.	Alison doesn´t gain any advantage. She competes on equal footing with others.

 

Prohibition wouldn't work in any case

 

As it can be seen from Display 2, the decision depends on the chance of being caught and the severity of sanctions, which pushes the associated costs to ever higher limits. Namely, if tests could be circumvented in any way (e.g. by bringing someone else´s clean urine samples) or if sanctions are not high enough, using CE would again be the dominant choice under the circumstances. Therefore, it would also most likely lead to the chain reaction of social pressure. But would any other policy be better?

 

Why don't we let doctors decide?

 

The so called “gate-keeper” approach - relying on health professionals to act as “gate-keepers” of CE) is a prominent proposal for regulation of CE. However, it is unclear whether such an approach would solve the problem of social pressure (or just create others) and whether it could be justified to all citizens. Let's try to test this claim by modeling the options in yet another dilemma. Alison's choice is now constrained with the decision of a Medical Doctor (MD):

 

Display 3: Dilemma on CE in a “Gate-keeper” Environment

 

	MD´s of many other competitors do not prescribe CE	MD´s of many other competitors prescribe CE
Alison´s MD prescribes CE	Alison gains competitive advantage over others, but she pays the associated health costs	Alison gains no advantage, pays the associated health costs, but at least she is not disadvantaged.
Alison´s MD refrains from prescribing CE	Alison doesn´t gain any advantage. She competes on equal footing with those that do not use CE. However, if resources are very scarce, her chances are reduced if at least one competitor is using CE.	Alison doesn´t gain any advantage, and in fact she is disadvantaged.

 

Who should have the right to decide?

 

It is important to note here that the decision is made by the health professional, not by Alison whatever she might prefer. On the one hand, if her preference is not to use CE, she does not consult her MD and is most likely disadvantaged. Otherwise she needs to consult a health professional. The MD makes the relevant decision: if he or she thinks that Alison's particular case is justified, CE will be prescribed, but if not, Alison has the option to go “doctor shopping”, until she finds access to CE. Now, that could be circumvented by introducing a model with sterner regulation by the state or regulatory bodies. Perhaps Alison could be limited to only one second opinion. MDs would be very careful not to overprescribe CE, while a certain amount of prescriptions would be approved. That way only some would get access, which would be unfair. So what other options are there?

 

How does EDM fare with rational choice modeling?

 

Recall (link) that I presented the economic disincentives model (EDM) as the most legitimate public policy on cognitive enhancement (CE). Would that work? Could EDM be equally acceptable to both sides and in the best interest of everyone? Let´s assume that Alison would prefer not to use CE, and the reverse for Betty. Their choices can again be modeled as a game in which each agent is playing against all others:

 

Display 4: Dilemma on CE in the EDM Environment

 

	EDM is in place so many others do not use CE	There is no regulation and most others use CE
Alison (or Betty) uses CE	She gains competitive advantage, but pays the costs for it (financial burdens, institutional inconveniences and health costs)	She gains no advantage, but pays the related health costs.
Alison (or Betty) refrains from using CE	She doesn´t gain any advantage but she doesn´t pay health costs and advantage of competitors is not significant as they pay additional costs	She doesn´t gain any advantage, and in fact she is disadvantaged.

 

 

Now someone could object that regulation policy would be justified only from Alison´s point of view, who doesn't want to use CE anyway. But that is clearly not the case. It has been assumed that Betty actually wants to use CE as a matter of personal preference. She has weighed advantages and health costs and she thinks the health costs are a reasonable trade-off to achieve her goals. But notice (on Display 4) that in case there is no regulation, Betty doesn't get the advantage (which is the reason she wants to use CE in the first place) but merely endures the costs. Clearly, EDM is rational and in the best interest of both Alison and Betty, and actually provides a framework in which both can follow their personal preferences.

 

Should we regulate all CE drugs like that?

 

That depends on the drug in question. Some of the CE drugs could be dangerous if introduced as a legally available commodity for the general populace. Although many assume that some (e.g. Ritalin) are safer than others (e.g. Adderall) even Ritalin has been “accused” of creating all sorts of physiological and social harmful effects, from addiction to maintaining racial inequality by overmedicating and pacifying youth of minorities. So, how to regulate these drugs? In another article I provide the answer. In the meantime, stay tuned for more...

 

How to regulate cognition enhancement drugs? (by Veljko Dubljevic)

 

In my previous post, I presented the argument that discouraging the use of cognitive enhancement (CE) would be the most legitimate public policy. I argued that taxation and other measures could appropriately protect the interests of all citizens and even generate funds for medical needs; however the question of how that might be achieved remained.

In my paper "Toward a Legitimate Public Policy on Cognitive Enhancement Drugs" I argued that CE drugs could further disadvantage and impoverish people already lacking basic necessities. The two most important reasons for this are long-term side-effects (which are mostly unknown) and indirect coercion. I will have more to say about the first reason in future posts, but for now I'd like to elaborate a bit on the second.

 

Short term positional gains

 

CE drugs are used by individuals as a means to obtain undeserved positional advantage. Furthermore, they could be used to ensure the positional advantage of corporate actors. If students use Ritalin during an exam because they are diagnosed with ADHD they are merely being given a fair opportunity to compete with other students on an equal footing. However, if they use it as enhancement, they are taking a chance with the unknown long-term side-effects in order to gain advantage over others. Such practices could lead to a situation in which all students need to use CE drugs to be able to compete. A more problematic scenario is if employers subtly coerce employees to use these drugs. In this scenario, employees would have to take on the risks of long-term effects because they are not in the position to refuse. At the same time, they are robbed of the ability to decide for themselves whether or not to use enhancements and forced to bear consequences of their use. Is this far-fetched? Surely, who would do that?

 

The example of truck drivers

 

Consider the example of logistics companies in a more or less laissez-faire market economy. Let's say that the most profitable trucking route is 1250 km long. The run could be achieved in just one day, but the stress and the fatigue are too much to handle. As such, without enhancement drugs, companies offer the service of two-day transport. Accommodations for the truck-driver are included in the price. That would make the return trip last 4 days.

Let´s say that company A decides to hire to truck-drivers who have no problem using Modafinil (the medical treatment for narcolepsy) in order to stay alert and make the run in just one day. The company offers the service for the same price, thus gaining extra profit, but for half the duration. Company B, the chief competitor of Company A, responds by offering the “overnight express” service and accordingly gives current employees the following choice: either they will start using Modafinil in order to cope with the requirements of the job, or they will be laid off.

The effects on the market are not hard to foresee. Other companies would either adopt similar policies, or go out of business. The truck-drivers would either use Modafinil (or some other drug) or be out of work. Their choice is dictated by market forces completely beyond their control. So what could be done to prevent such abuse?

 

Is there a solution?

 

In my last post, I discussed available policies and identified “discourage use” as an approach that might help. However, it is unclear how exactly to regulate CE drugs and whether this would achieve the socially desirable effects. For example, prohibitive policies on alcohol have proved to be disastrous, even though very real social problems are caused by alcohol abuse. On the other hand, “discourage use” policies use taxes, fees, insurance requirements and other measures as economic disincentives for the use of certain substance. This in no way infringes on the rights of those that would like to use these substances, but this, along with other measures such as the prohibition of use in certain places or situations, ensures that the rights of others are respected as well. Smoking is a case in point here – cigarettes are heavily taxed and smokers are subject to other disincentives (e.g. more expensive insurance) and forms of regulation (e.g. no smoking indoors). A similar policy might do the trick with CE drugs.

 

The Economic Disincentives Model (EDM)

 

Under the economic disincentives model (EDM) an already existing government agency (e.g. FDA) would offer a licensing procedure to pharmaceutical companies to market CE drugs for healthy adults. This way all citizens could have legal access to CE drugs, but with the imposition of taxes, fees and additional insurance requirements, it creates financial and regulatory burdens for their use.

EDM envisions an additional licensing procedure for users - in order to use CE drugs citizens would have to pay fees for a course about known effects and side effects, and pass an exam as proof of knowledge. Furthermore, additional medical insurance and obligatory annual medical tests would need to be taken in order to obtain (and renew) a license to use CE drugs.

 

Is this just a ploy to make the pharmaceutical industry even richer?

 

Recall that a very important issue in the debate on CE was justice. Justice demands that funds obtained from those who seek advantage by enhancement be allocated to the least advantaged. That is why under EDM the prices of CE drugs would be regulated – they would contain the standard costs of production and distribution, the profit margin would be limited and an additional tax would be imposed. The companies earning profits obtained from CE would be further taxed and obliged to invest extensively in “orphan drugs”. The funds gained by such policy would be invested in providing medical necessities for the least well-off and any remaining funds would be allocated to finance education.

 

Is EDM realistic?

 

It could be objected that EDM could have considerable drawbacks: The procedures could turn out be expensive and bureaucratic and involve considerable work and time from the would-be users. However, this objection fails to undermine the model. For example, the licensing procedure for driving vehicles is bureaucratic and involves considerable time and work from would-be drivers, and it is still efficient and legitimate. Furthermore, EDM would function as an addition to - and not a further drain on - public funding. This policy would efficiently and legitimately ensure that all citizens could have legal access to CE drugs, and with the imposition of taxes, fees, and requirements of additional insurance, it would offset any positional advantage from using CE drugs.

A different objection could be that such a model is not necessary. Is there really danger of indirect coercion? In another article I provide the answer. In the meantime, stay tuned for more...

 

How (not) to argue about cognitive enhancement (by Veljko Dubljevic)

 

In my paper “Principles of justice as the basis for public policy on psycho-pharmacological cognitive enhancement”, I analyzed the debate on cognitive enhancement drugs. The conclusion was that some arguments (e.g., authenticity, posthumanist, “playing God”, etc.) instead of being convincing merely lead to a strong disagreement. That is because they presuppose religious, ethical or metaphysical comprehensive doctrines. So what kind of argument could help us sort the disagreement? To answer that question, it is important to understand what the debate entails. Ultimately, it is about the regulation of cognitive enhancement (CE), not about what individuals might prefer, meaning that not every kind argument has equal weight. Only arguments that appeal to the interests and values of society as a whole (as opposed to only part) are strong enough. So what options for regulation are available?

 

CE: same as coffee or same as cocaine?

 

Proponents of enhancement insist that new substances offering enhancement are similar to old ones, and base their argument on the appeal to the fairness of treating like cases alike. Nevertheless, policy options in a democratic society are not limited to taking a laissez faire approach (like in the case of coffee), as pro-enhancement authors want, or to banning the technology (like in the case of cocaine), as opponents of enhancement want. There is also the option of regulating the technology so that individual use is encouraged via government incentives or discouraged via taxation. An additional option is to make the technology mandatory.

These policy options rest on the familiar distinctions in moral philosophy between actions that are a) morally required, b) morally desirable and permissible, c) morally neutral and permissible, d) bad but nevertheless still morally permissible, and e) morally impermissible. The fairness of treating like cases alike depends on defining sufficiently like cases. Are new cognitive enhancement drugs more like coffee or more like cocaine? That depends on the drug in question (and I'll have more to say about that in later posts), but it is also important to stress which principles should guide our arguments.

 

How not to argue

 

Why is coffee allowed and cocaine prohibited? Does that have something to do with authenticity, human nature or the good life? Not really, these are generally adequate criteria for individual choice, but not adequate for public policy. Furthermore appeals to comprehensive doctrines like some religious or political ideologies will not work, because they are not shared by everyone. Mid-level principles of beneficence, non-maleficence (i.e. non-harm), autonomy and justice show more promise.

 

How to argue

 

However, not all of them are strong enough to support a certain policy. Let's take beneficence for example. If something is good for you, perhaps this should be mandatory. Maybe coffee is good for concentration but we can't make coffee mandatory because that would conflict with the principle of autonomy – the right to choose. This is also the case with prohibited substances. The case must be very strong indeed to prohibit something, because that would infringe on the right to choose. So why is cocaine prohibited? With a measure of simplification, it is prohibited because it is very harmful (non-maleficence) and infringes on autonomy by itself (by causing unreal perceptions about one's abilities and addiction).

 

Is regulation of smoking hypocrisy? The rights of smokers and non-smokers

 

But what about smoking? That's harmful and can also cause addiction, right? Yes, but the picture is more complicated here. Again, to simplify things, tobacco is not a mind altering substance. It might be harmful in the long run and it might cause addiction, but a democratic state can only discourage its use with taxation and other measures, not prohibit it entirely. There is one other important issue: there is no injustice involved in smoking if you do it in your home and the rights of non-smokers are protected in public places.

 

How does this relate to CE?

 

All this has set the stage for the issue of regulating CE drugs, in both the relevant principles and policy options. I argued that justice is the relevant issue to have in mind for regulating use of CE drugs for the healthy. That does not mean that other issues are irrelevant – merely that justice is really important. The common claim of authors opposing enhancement is that treatments are obligatory and permissible while enhancements are not. The principle of justice explains why this is the case in CE. Using Ritalin (or some other drug) for enhancement is not an issue of providing basic necessities for those who are lacking, benefiting the least advantaged or restoring citizens to a position of equal opportunity and liberty, while in the case of citizens suffering from say ADHD it certainly is.

 

Justice anyone?

 

Furthermore, providing drugs as a means of enhancement to gain positional advantage could cause erosion in the fabric of society - people would see that medical resources are diverted into controversial enhancements, while clear cases of disease and impairment are left untreated. This means that justice could be used to draw the line between cases in which it is permissible and obligatory to provide drugs in private or public health insurance schemes and those that it is not. Moreover, as resources in most societies are too limited to meet all needs for the treatment of disease or impairment, justice requires that we meet most important medical needs first. Only if all medical needs are taken care of could any public finance for enhancements be allowed.

 

“Justice Trumps Beneficence”

 

This can be neatly summarized with the version of the “Justice Trumps Beneficence” Argument:

1. Enhancement is not required by justice but only by the value or principle of beneficence;

2. The widespread use of enhancement would create a serious risk of injustices to citizens choosing not to enhance due to their comprehensive doctrine;

3. Justice trumps beneficence (when the pursuit of beneficence creates a risk of serious injustice, the avoidance of injustice should take precedence);

4. Therefore, public funds should not be allocated to enhancement purposes, and/or measures should be taken to compensate those citizens likely to suffer injustices.

 

The rights of non-enhancers

 

As non-smokers are sometimes very upset about smoking, so non-enhancers are upset about the use of CE in certain contexts. The issue of justice explains what they are upset about – they might think CE is unjust because it undermines the equality of rights and liberties of citizens wishing to enhance and those that do not. Furthermore, they could claim that using CE is cheating in certain instances, such as exams, as it violates fair equality of opportunity, and that the use of drugs might be justified in instances of poor health, but not when seeking positional advantage. So far so good. But does this mean that CE must be entirely prohibited?

 

What kind of policy?

 

Not really. Like smokers, people that want to use CE have rights. Smoking is regulated in public spaces and discouraged with taxation and other measures. Some non-smokers call for a total ban, but that is overkill, and not really legitimate. Similarly to that, the analysis of requirements of justice points to a conclusion that discouraging the use of CE would be the most legitimate public policy. Taxation and other measures could appropriately protect the interests of all citizens and even generate funds for medical needs. So what might that look like? In another article I provide the answer. In the meantime, stay tuned for more...

On Concussions, the NFL, and Neuroethics (Goldberg)

First, thanks to Adam for the chance to guest-blog here again.

As we gear up for the Stupor Bowl [sic], the newswires exploded with news of the latest study of chronic traumatic encephalopthy ("CTE") in a former professional football player.  A bit of context here:

What if the risks of traumatic brain injury that stem from playing football are much closer to the risks of TBI from combat sports (like MMA, which I have personal experience with, or professional boxing)? The rules and regulations for the latter are quite strict regarding neurological trauma, as the career of Joe Mesi amply illustrates.

In contrast, there are no rules and regulations regarding the treatment of concussions in the NFL, or mild TBI ("mTBI").  The story here is extremely complicated, involving structural features of occupational medicine in the NFL, rampant conflicts of interest, and profound uncertainty regarding the sequelae of even a few concussions.  Despite this uncertainty, the evidence is mounting that neuropathological effects of concussions are protracted (such that even when persons appear uninjured 15 minutes after a concussion, they may in fact suffer neural damage), and that severe long-term neuropathology can be caused by relatively few concussions (though no one knows how many, it is very likely less rather than more), among other recent findings.

The latest findings stem from the efforts of Chris Nowinski, a former Harvard football player and professional wrestler, who has devoted much of his time and energy to this particular issue.  He co-founded the Sports Legacy Institute, which sponsored the latest study. 

In any case, the NFL is clearly on the defensive on this issue, as, IMO, they ought to be.

For some reason, Adam was kind enough to permit me to borrow this blog for some shameless self-promotion, so I can say that readers interested in knowing more about this issue are invited to check out an article of mine recently published in HEC Forum:

"Concussions, Professional Sports, and Conflicts of Interest: Why the National Football League’s Current Policies are Bad for Its (Players’) Health," HEC Forum 20, no. 4 (2008): 337-355.

Those among you with no interest in this issue should still check out HEC Forum, as the issue is a theme issue on Clinical Neuroethics Consultation, guest edited by Paul Ford.  Lots of articles in there that the readers of this blog will probably find interesting.

Why's everybody always picking on me?

Marcia Angell, formerly Editor-in-Chief of the New England Journal of Medicine, has a detailed piece in the New York Review of Books entitled Drug Companies & Doctors: A Story of Corruption.  In the article, she reviews three books:

• Side Effects: A Prosecutor, a Whistleblower, and a Bestselling Antidepressant on Trial by Alison Bass
• Our Daily Meds: How the Pharmaceutical Companies Transformed Themselves into Slick Marketing Machines and Hooked the Nation on Prescription Drugs by Melody Petersen
• Shyness: How Normal Behavior Became a Sickness by Christopher Lane

What is notable is that two of the books focus on the intersection between Big Pharma and psychiatry (I have previously written about Christopher Lane's book Shyness here), and Marcia Angell does an admirable job of reviewing the recent travails of the field.  She does point out that we should not be too hasty to condemn one field at the expense of others:

"The problems I've discussed are not limited to psychiatry, although they reach their most florid form there. Similar conflicts of interest and biases exist in virtually every field of medicine, particularly those that rely heavily on drugs or devices."

It seems easy to agree with Angell's conclusions, especially when she notes that,

"To promote new or exaggerated conditions, companies give them serious-sounding names along with abbreviations. Thus, heartburn is now "gastro-esophageal reflux disease" or GERD; impotence is "erectile dysfunction" or ED; premenstrual tension is "premenstrual dysphoric disorder" or PMMD; and shyness is "social anxiety disorder" (no abbreviation yet).

The most important question that the Angell piece raises is whether the field of neurosciences (writ large) is at least partly cupable for this incursion into psychiatric disease by promulgating the notion that all diseases of the brain are due to disordered chemistry.  Don't get me wrong: I am a dyed-in-the-wool neurobiologist who is fully convinced that, on some level, all diseases of the brain are due to disordered chemistry.  But it is one thing to say that a disease is caused by altered chemistry and something else entirely to know what that altered chemistry is.  I can think of no disease of the brain for which we have developed a mature and robust understanding of the underlying pathophysiology (suggestions welcome).  Absent that, all that the pharmaceutical industry can offer are chemical band-aids.  The problem is that the general public wants - no, expects cure-alls.  And the marketing arms of the pharmaceutical industry are all too eager to depict their latest offerings as such.