We’ve written as lot about “brain malfunction” [aka “did my brain make me do it?”] defenses here but this is a new twist on the neurolaw question. Deep brain stimulation (“DBS”) is a well-accepted treatment for a number of serious and treatment resistant neurological conditions from Parkinson’s Disease to depression and obsessive-compulsive disorder. As effective as DBS can be, there are also concerns about how, in some patients, it changes one’s personality to cause “undesirable or even deviant behavior”. The behavioral/personality changes depend on the location of the deep brain stimulation (and the functions carried out by that portion of the brain).
So. You have a condition for which everyday treatment is ineffective or causes side-effects worse than the condition itself. Your doctor suggests a brain implant to offer deep brain stimulation (DBS). You are unfortunately, one of those for whom DBS creates behavioral reactions and you do something illegal. Are you responsible? Or is it your brain implant? […]
The article is very complex and the ideas in it are provocative. We cannot do justice to the questions raised by these writers in a brief blog post. It’s a very serious question.
"When you agree to a cutting-edge treatment and you are informed that for some people, behavioral changes may occur, do you thereby accept responsibility for any actions you take under the influence of that treatment?
"Or, since the behavior is completely different than anything you have previously displayed and is thus believed due to the treatment (which can be shut off) is it fair to deny responsibility?
"And if you encounter aberrant behavioral effects but decide to not shut off the DBS because you appreciate the ways in which it helps you function, are you then more responsible for any illegal act you committed since you are choosing to continue down the same path?"
Yes. This is a new question. Not, “did my brain make me do it?” but “did my brain implant make me do it?”. Ultimately, however, the larger question remains the same. Where does our personal responsibility end?