Must the Surgeon Take the Pill? Negligence Duty in the Context of Cognitive Enhancement

Abstract

Recently, attention has turned to the possibility of enhancing human cognitive abilities via pharmacological interventions. Known as ‘cognitive enhancers’, these drugs can alter human mental capacities, and in some cases can effect significant improvements. One prime example is modafinil, a drug used to treat narcolepsy, which can help combat decreases in wakefulness and cognitive capacity that arise due to fatigue in otherwise healthy individuals. In this paper, we respond to calls in the philosophical and ethical literature that surgeons and other medical professionals should be morally obliged to take cognitively enhancing drugs. We examine whether surgeons who make fatigue‐related errors during patient care might be considered legally obliged to enhance themselves. We focus on liability for a failure to medicate, and conclude that it is highly unlikely that surgeons will be legally obliged to address their fatigue through the use of cognitive enhancing drugs.

The Multiplicity of Memory Enhancement: Practical and Ethical Implications of the Diverse Neural Substrates Underlying Human Memory Systems

“…But it is unlikely these problems will vex all memory systems equally. For instance, there are obvious competitive advantages to enhancing semantic, working, and procedural memory, in academic, medical, athletic, military, and various other settings (Appel, 2008;Beddington et al, 2008;de Sio, Faulmüller, & Vincent, 2014;Goold & Maslen, 2014). On the other hand, it is difficult to imagine a situation in which an employer (for instance) might coerce an employee into enhancing autobiographical memories of purely personal events.…”

Responsible Innovation 2

“…In particular, it has focused on the modest claim that there could be some limited circumstances-where the surgeon is very fatigued and the only person available to perform the surgery-in which it might be thought that the surgeon has an obligation to take a cognitive enhancer (see Goold and Maslen 2014b). In general, English law is very reluctant to impose omissions liability.…”

“…Further, subsequent to the decision in Bolam the court now has the authority to independently assess the reasonableness Goold and Maslen (2014b) and Goold and Maslen (2014a) of the way in which the surgeon acted. In Bolitho v City and Hackney Health Authority, 5 the Court held that in determining the standard of care, that the Court must be '… satisfied that, in forming their views, the experts have directed their minds to the questions of comparative risks and benefits and have reached a defensible conclusion on the matter'.…”

Cognitive enhancement kept within contexts: neuroethics and informed public policy

“…What posture should be assumed when (a) certain people seek optimal functioning in pursuit of what they personally deem as the apex of the good life, and/or (b) society sets requirements that individuals in special roles (such as physicians, pilots, peace officers, or warfighters) must attain some level of optimal functioning? (Giordano et al, 2013 ; Goold and Maslen, 2014 ) Medicine’s laudable work in service of living a good life isn’t automatically extendable to living a great life, or to achieving great performance in a socially-sanctioned service. Justifications for specialized enhancements for enabling idiosyncratic lifestyles or for extraordinary public service will not necessarily be obtained in and from medical principles.…”