ECAP7 - abstract by Nicole Vincent

ECAP7 Università Vita-Salute San Raffaele

Ethics, Human Enhancement and Genetics Workshop – Sunday, September 4th 2011

Nicole Vincent Cognitive Enhancement and Responsibility

Suppose that you are a surgeon who is about to perform a very delicate, challenging, lengthy and ultimately risky operation. For most surgeons, the chance that the operation will be a success and that the patient will walk away cured rather than injured (or maybe even die), is only around 30%. But a few really skilled surgeons consistently show a success rate of around 50%, which is attributed to their perceptiveness, mental clarity and superior ability to stay focussed throughout this lengthy procedure. But suppose further that you, an average surgeon, could take certain medications that would have no bad side effects, but which would increase your wakefulness, mental acuity and your ability to stay alert throughout this lengthy procedure, and which as a result could raise your own success rate to around 50%. Should you not take these ‘cognitive enhancement’ medications to give your patients the best chance of recovery and survival? Turning the table, suppose instead that it is your own child who is about to be operated on by another average surgeon who could also take these cognitive enhancement medications – wouldn’t you want the surgeon to take these medications for your child’s benefit? And if they didn’t do so and the operation was a failure, wouldn’t you feel aggrieved because they didn’t do all that it was reasonable to expect them to do, and mightn’t you even feel that this made them negligent or maybe even reckless?

Bio: • Nicole Vincent conducts research into theories of responsibility, and she studies how these theories inform ethical, political and legal debate. In 2007 she obtained her PhD in philosophy of law from the University of Adelaide, Australia, with a dissertation entitled ‘Responsibility, Compensation and Accident Law Reform’. From late 2007 until early 2011 she worked solely at Delft University of Technology in The Netherlands on a research project entitled ‘The Brain and The Law’. Since February 2011 Nicole has been a Research Fellow at Macquarie University in Sydney, Australia, where she is working on a research project entitled ‘Reappraising the Capacitarian Foundation of Neurolaw’ that has two components. One, it investigates whether capacitarian intuitions about the relationship between mental capacity and responsibility still obtain in contexts where

mental capacity has been restored or enhanced. Two, she is also developing an Australasian Neurolaw Database. In addition, Nicole is also in charge of a large research project based at Delft University of Technology in The Netherlands entitled ‘Enhancing Responsibility: the effects of cognitive enhancement on moral and legal responsibility’ which addresses two questions. One, might some people have a responsibility to cognitively enhance themselves, and would their failure to do this constitute negligence or even recklessness? Two, might cognitively enhanced people have greater responsibilities, and should breaches of such responsibilities attract sanctions?

abstract

We normally think that responsibility tracks mental capacity — i.e. that people’s responsibility diminishes when mental capacities are lost, and that responsibility is restored when those capacities are regained. This capacitarian idea underlies a range of our intuitive responsibility ascriptions in lay, legal and philosophical contexts. For instance, capacitarianism plausibly explains why children, the senile, and the mentally ill are thought to be less than fully responsible for what they do (i.e. because they lack the right kind and/or degree of mental capacity), why children can acquire more and/or greater responsibilities as they grow up (i.e. because their mental capacities develop as they mature), and how responsibility is reinstated on recovery from mental illness (i.e. because the needed mental capacities are recovered).

But if capacitarianism is right – i.e. if responsibility really does co-vary with mental capacity – then how might responsibility be affected when mental capacities are extended beyond their normal range through cognitive enhancement? For instance, might some people – e.g. surgeons working long shifts in hospital – have a responsibility to take cognitive enhancement drugs to boost their performance, and would they be negligent or even reckless if they failed or refused to do this?

Alternatively, once enhanced, would people acquire new and possibly greater responsibilities in virtue of now being more capable? Could they be blamed for failing to discharge those greater responsibilities, and does this make them more vulnerable to liability if things go wrong? In other words, does responsibility track hypercapacity as well as capacity?

The off-label use of prescription drugs such as Modafinil and Ritalin is on the rise, but although the current literature covers issues such as safety, effectiveness,

coercion and justice, these drugs’ effects on people’s responsibility have not been investigated. The standards which the law currently uses to assess people’s responsibility presuppose that human mental capacities are capped at a particular level. But if humans can surpass this level of mental capacity through cognitive enhancement, then this might call for a re-assessment of those standards.

After (i) describing the basic capacitarian idea and explaining why it is attractive, I will then (ii) argue that cognitive enhancement affects our moral responsibility in a range of different ways, (iii) suggest some ways in which cognitive enhancement is likely to impact on legal responsibility, and (iv) discuss some reservations about the claim that responsibility tracks hypercapacity as well as capacity.