Reported by Sophia Ismail
On 12th June 2021, RWC Community Series organised a Webinar titled “Introduction to Neurolaw” via Facebook live. The speaker was Dr Tsee Leng Choy, a neuroscientist with past experience in academia and currently a Director at LeadWomen Sdn Bhd. It was moderated by Richard Wee.
Neurolaw: an overview
In the introduction, Dr Choy described neuroscience as the interdisciplinary study of the brain. It can feed into many areas in the sciences but excitingly, it is also finding its way into other areas that, on the outset, would not pair very well. For example, how neuroscience findings can inform the law. Since law is about governing behaviour and society, Dr Choy believes in order to do that practically, there needs to be a good understanding of human behaviour which all originates in the brain.
The speaker explained that a common misconception about neurolaw is that most think it only applies to criminal law because of television, media, and a perceived direct link between the two areas. For example, in determining whether or not an accused is guilty, a brain scan can be used as evidence. However, she asserted that it can also lend itself to many other different areas. The rest of the webinar primarily focused on sports, criminal defence and mitigation, employment law, health law, and elder law.
Mr Wee introduced the concept of sport science research and studies have been made on athletes to determine patterns formed in their brain when they play sports. He used the example in badminton, where a player may consistently play a smash, smash, smash, and drop sequence. Mr Wee asked the speaker whether it is accurate to suggest that this sequence translates to a pattern formed in the brain.
In response, Dr Choy explained that this would work in the form of neurofeedback. The brain has electrical activity that is ongoing and these devices measure that activity. When feeding it back to a screen or watch, those brain waves can be viewed simultaneously as you do something. Dr Choy then remarked that in sports like badminton, a lot of it is mental and touched on the concept of “choking” where a skilled athlete underperforms. This is not due to lack of skill but rather because of tremendous pressure. In that regard, these devices and feedback systems would allow athletes to train their bodies by regulating behaviour and movement. This is because there are patterns that can be ascribed to certain movements and strokes, which can be useful to realise weak spots.
In the next part of the webinar, Mr Wee prompted the discussion on criminal defence, starting with the mental state of an accused. He asked the speaker whether the minds of some criminals work in ways where they cannot refrain from unlawful behaviour. In reply, Dr Choy set out 3 main clusters to clarify how neuroscience can help the law;
- Improvement. In particular how neuroscience can help improve current definitions for certain terms and concepts that are archaic. She gave the example of free will, behaviour and control, and consciousness.
- Input. For example, a psychopath has killed a person and the question to be determined is whether he was in complete control of his behaviour. Dr Choy suggests that in a case like this, lawyers could present brain scans or tests as evidence which would show any structural differences and abnormality.
- Intervention. Neuroscience can help intervention at the punishment stage by looking into whether a condition is curable or treatable. She also noted that psychopathy exists on a spectrum and is not clear cut. Therefore, there needs to be careful thought when deciding the extent of punishing someone deemed a psychopath.
Following that, Mr Wee raised an issue that may arise in criminal law. A crime consists of two elements, the actus reus, which is the act, and the mens rea, the mental element. For example, whether there was intent or reckless intent to commit the crime of assaulting or killing someone. He suggested that neuroscience may negate the intention element of mens rea. If it does, there is no crime.
Dr Choy then spoke about a case where a man showed paedophilic tendencies and sexually abused his step daughter. When a brain scan was conducted, authorities found a tumour. When it was removed, it was observed that his behaviour went back to normal. However, after a few years the tumour came back and his behaviour regressed. Purportedly this man’s counsel was able to use this as evidence and it was argued that a dormant trait was exacerbated by the tumour. The man was not given the full sentence. Due to this, the speaker noted that neurolaw can be a double edged sword and susceptible to abuse. Thus, it must be approached with care. Even so, Dr Choy is optimistic that neuroscience has the potential to help with rehabilitation and therapy for criminals. It may be more effective than a prison sentence because a person may reoffend without mental health support.
Dr Choy distinguished between malingering and mental disorders in the workplace. Sometimes it is hard to determine whether a client is malingering, by exaggerating the severity of physical or mental conditions to reap benefits such as time off or compensation. On the other hand, mental disorders linked to employment like PTSD and depression are legitimate but can be hard to prove or believed by others because of stigmatisation.
Adding to that, Mr Wee asked how neuroscience can help with the human resource manager and the employment law lawyer. In both cases, Dr Choy stated that when dealing with these, having an open mind is most important because mental harm exists in varying ranges. That includes brain damage. Even though evidence is not as easily obtainable, there are many possibilities in neuroscience that have not been explored before that could benefit employment law.
When asked if the speaker has seen or read if neurolaw is practiced in any part of the world, the speaker noted that neurolaw is hard to specialise on your own. This is because it is part of many areas and you need to consult different experts. However, she particularly commended the work of MacArthur Foundation Research Network on Law and Neuroscience in the USA. Dr Choy also touched on efforts by Massachusetts General Hospital and the University of Oxford. The speaker also mentioned a neurolaw conference held in Melbourne and ongoing research in Latin America but did not refer to them by name.
In addition, Mr Wee made reference to a paper written by Arian Petoft and the potential scope of neurolaw in practice. In addition to criminal law and employment law, Petoft viewed that neuroscience may be considered in various areas such as intellectual property law, tort law, consumer law, health law, and constitutional law.
Dr Choy talked about a movie documentary called Fed Up released in 2014 about the obesity of Americans, in both adults and children. By large, this is contributed by high levels of corn syrup contained in food products. Oftentimes people do not realise that a lot of food that we consume has hidden sugars bad for their health. Large food companies and corporations are able to bypass laws by maintaining that people make the freedom of choice to buy their products. However, because of insufficient information, most of the time it is unknown what extent the food we consume contains harmful ingredients.
In considering how to address this issue, the speaker admitted that it will not be straightforward to sue these corporations. A suggestion was to present the number of years a certain type of product has been consumed and support it with a medical report which shows that a certain area of the brain is affected. If that harm has resulted in inability to work, this has potential compensation benefits.
In the last topic of the webinar, Dr Choy discussed the difficulties that arise when an elderly person made their will when senile and families argue over inheritance. In itself, determining senility is hard because there are different types of dementia and it’s not just about forgetfulness. As a lawyer, neuroscience could be beneficial by providing insight into how certain clients should not be given large responsibilities. Other issues surrounding the elderly that were considered include abuse in nursing homes and whether they have the capacity to understand consent.
Mr Wee then suggested the possibility of developing neurolaw to confirm the mental ability of a person. As an example, a person’s brain activity can be used to trigger a certain law to prohibit the elderly person to drive because they no longer possess adequate cognitive abilities to continue driving. For this reason, the moderator submitted that this development would be more conclusive and fair, instead of having a sweeping blanket where automatically all 60 year olds and above cannot drive. Following that, Dr Choy argued that it could also be helpful in cases of younger people and determining the correct age to classify someone as an adult. There is research that shows the prefrontal lobe is not fully matured until 25 years old, which suggests that the threshold may be too young. Even so, times are changing and children are going through puberty faster, so more research needs to be made.
In summing up the talk, Dr Choy expressed that sometimes neuroscience can provide a piece of the puzzle and sometimes it can be the piece of the puzzle, though it is not a magic pill. Like anything else, it can be abused and used for different purposes to confuse and obliterate. Practitioners need to be mindful of this because neurolaw does not only apply to clients. The speaker asserted that lawyers, judges, and jurors themselves, are also susceptible to bias. More attention should be given to partiality in decision making because it affects society as a whole. She suggested that awareness can start through continuous education so that improvements can be made. Neuroscience provides an opportunity for that.
Published on 30 June 2021