The American Journal of Bioethics, 9(1): 3–13, 2009 c Andrew Fenton Copyright ISSN: 1526-5161 print / 1536-0075 online DOI: 10.1080/15265160802617829
Target Article
Ethical Challenges and Interpretive Difficulties with Non-Clinical Applications of Pediatric fMRI
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Andrew Fenton, Dalhousie University Letitia Meynell, Dalhousie University Franc ¸ oise Baylis, Dalhousie University In this article, we critically examine some of the ethical challenges and interpretive difficulties with possible future non-clinical applications of pediatric fMRI with a particular focus on applications in the classroom and the courtroom – two domains in which children come directly in contact with the state. We begin with a general overview of anticipated clinical and non-clinical applications of pediatric fMRI. This is followed by a detailed analysis of a range of ethical challenges and interpretive difficulties that trouble the use of fMRI and are likely to be especially acute with non-clinical uses of the technology. We conclude that knowledge of these challenges and difficulties should influence policy decisions regarding the non-clinical uses of fMRI. Our aim is to encourage the development of future policies prescribing the responsible use of this neuroimaging technology as it develops both within and outside the clinical setting. Keywords: Mind reading, neuroethics, neuroimaging, non-clinical fMRI, pediatric, policy
Novel technologies often bring with them new opportunities to influence people’s lives and social institutions. Few technologies, however, have captured the imagination of scientists, policy makers, and the general public like functional Magnetic Resonance Imaging (fMRI). fMRI is a rapid, non-invasive imaging technology that functionally maps the working brain by tracking changes in blood oxygenation level dependent (BOLD) responses associated with neuronal activation correlated with various behavioural functions and cognitive tasks. This technology has already had a major impact on neuroscience, and with the approval of three fMRI–specific CPT codes1 in the US (American Medical Association 2007; Bobholz et al. 2007), it is poised to have a similar impact on clinical practice. Indeed, while challenges remain with respect to validity, reliability, and standardization, it is widely anticipated that fMRI will be a useful clinical assessment tool for adult and pediatric patients alike, whether for (i) neurosurgical planning, (ii) understanding and managing neurological
disease, (iii) developing new therapies, and (iv) monitoring rehabilitation outcomes (Matthews et al. 2006; Brown 2007). For example, using fMRI, pediatric neurosurgeons will be able to characterize the brain’s functional anatomy so as to avoid eloquent areas of the brain during surgical resection (e.g., presurgical language mapping (Bookheimer 2007)). Pediatric fMRI will also be useful in providing targets for functional neurosurgery in disorders where there is evidence of overactivity in brain circuits (as Mayberg and colleagues have demonstrated for depression (Mayberg et al. 2005)). Second, with pediatric fMRI (alone or in conjunction with an electroencephalogram (EEG)) clinicians will be able to better map spontaneous brain activity and identify those regions of the brain that show changes associated with an underlying health condition; this will be useful in developing better evaluation tools and treatment options. For example, seizure localization in epilepsy could benefit from
Received 12 September 2007; accepted 4 February 2008. Acknowledgment: The research for this article was funded in part by a grant from the Canadian Institutes of Health Research. Sincere thanks are owed to Mary Pat McAndrews, Michael Hadskis, and Jennifer Marshall for helpful comments on earlier drafts. Thanks also to our anonymous reviewers at the American Journal of Bioethics. Address correspondence to Andrew Fenton, Novel Tech Ethics, Dalhousie University, 1234 Le Marchant Street, Halifax, NS B3H 3P7. E-mail:
[email protected]. 1. Current Procedural Terminology (CPT) “is a listing of descriptive terms and identifying codes for reporting medical services and procedures. The purpose of CPT is to provide a uniform language that accurately describes medical, surgical, and diagnostic services, and thereby serves as an effective means for reliable nationwide communication among physicians, and other healthcare providers, patients, and third parties [e.g., coders, accreditation organizations, medical insurance companies, etc.]” (American Medical Association 2007).
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combining the spatial resolution of fMRI and the temporal information in EEG (Detre 2004). Pediatric fMRI could also be used to diagnose and manage disorders that cannot be understood simply in terms of structural abnormalities – such as autism – by providing a functional characterization of the disorder. As well, pediatric fMRI could be useful in the pre-symptomatic diagnosis of diseases such as childhood onset schizophrenia, as abnormalities in intrinsic neuronal networks have been shown in adults using ‘resting state’ fMRI (Bluhm et al. 2007). If one is able to characterize and validate activation profiles of specific diseases or disorders, then one could use fMRI for diagnosis in future cases. Third, the functional characterization of brain states could also be useful in developing a better understanding of the neural mechanisms associated with addictive behaviours (Matthews et al. 2006, 737). This could be particularly helpful in pediatrics when identifying and guiding treatment decisions for children2 at higher risk of addiction. Lastly, pediatric fMRI could be useful in predicting the potential for neurorehabilitation, as with the use of fMRI to distinguish patients in a minimally conscious state from patients in a persistent vegetative state (Laureys et al. 2006). It might also be useful in monitoring neurorehabilitation, as with the use of methylphenidate for children with Attention Deficit Hyperactivity Disorder (Vaidya et al. 1998) or the use of remedial training for children with dyslexia (Temple et al. 2003). In addition to these legitimate anticipated clinical uses of pediatric fMRI, there are anticipated non-clinical uses of the technology. Currently, neuroscientists are enthusiastically researching the cognitive processes involved in: (i) the storage, retrieval, and loss of memory (Braver et al. 1997; Brewer et al. 1998; Owen 1998); (ii) language acquisition (Bechtel, 2001); (iii) traits of character (Kumari et al. 2004); (iv) social attitudes, human cooperation, and competition (Ward 2006, 309–35); (v) antisocial behavior (Fu and McGuire 1999; Ward 2006, 330–34); (vi) brain differences between the sexes (Coffey et al. 1998); (vii) religious experience (Azari et al. 2001; Barrett 2000); and (viii) ethical decision-making (Moll et al. 2005), with a view to identifying distinctive neural activation patterns that correlate with certain cognitive activities and emotional experiences. As well, there is much research on lying and inference of intention (e.g., Gazzaniga 2005; Tovino 2007) that is of anticipated relevance to problems in education, law, economics, and marketing. Two attitudes toward the non-clinical uses of fMRI are present in the popular discourse. The general public is encouraged to think about the benefits of brain scans for liedetection, improving teaching, job screening, and increased public security. At the same time, there are dire warnings about the likelihood of privacy violations, discrimination and stigmatization, corporations controlling consumer be-
haviour, and threats to civil liberties as a result of excessive, unwarranted state control (for example, with preventive detention) (Olsen 2005; Tovino 2007, 49–50, 51–52; Ward 2006, 74–75). In such a climate, policy makers can expect to face considerable pressure both for and against non-clinical applications of fMRI. The peculiar vulnerability of children and the state’s interest in their protection means that pediatric fMRI applications, especially those administered by state bodies, deserve particular attention. In this article, we briefly review some of the anticipated non-clinical applications of pediatric fMRI with a narrow focus on the classroom and the courtroom—two domains in which the state has considerable control of, and responsibility for, the welfare of children.3 We then critically examine some of the possible ethical challenges with nonclinical applications of pediatric fMRI. This is followed by a detailed analysis of a range of interpretive difficulties that plague the use of fMRI and are likely to be especially acute with non-clinical uses of the technology. We conclude that knowledge of these ethical challenges and interpretive difficulties should induce policy makers to carefully delimit (and sometimes curtail) the non-clinical uses of pediatric fMRI.
2. While there are significant differences in brain development, as well as cognitive and emotive capacity, in infants, children, and adolescents, an analysis of these differences and their implications is beyond the scope of this article. Here, we use the term ‘children’ inclusively.
3. The possible use of fMRI in market research involving children raises significant ethical challenges that are beyond the scope of this article. A proper analysis would require not only consideration of the nature of free-market capitalism but also attention to the ethics of advertising.
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NON-CLINICAL APPLICATIONS OF PEDIATRIC fMRI Neuroimaging in the Classroom As DiPietro remarks, “hi-tech images of the brain have captured public and political attention in a way that decades of study of child behavior rarely has” (2000, 468). One unfortunate policy outcome reported by DiPietro was the mandate for distribution of classical music to newborns in Georgia in 1998. This policy was based on studies suggesting that exposure to classical music brought about a “short-term increase in a spatial reasoning task in adults” (DiPietro 2000, 462). Subsequent critical analyses of the relevant data, however, undermined the significance of exposure to Mozart, or the ‘classical’ music of more contemporary composers. This misguided policy notwithstanding, it is anticipated that neuroimaging technology may have a positive impact on education policy, specifically through the development of new curricula (and the introduction of individualized learning strategies) based on increasing knowledge of the developing brain in relation to such skills as learning, memorization, and reasoning (Jensen 2000, 77–79; Stern 2005). As well, there is the prospect of characterizing learning disabilities as more or less remediable and using this information to screen or stream students into appropriate educational programs, thereby better responding to the specific needs of gifted students or students with learning disabilities.
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Curriculum Development In highlighting areas where advances in our knowledge of the developing brain might impact the classroom, Jensen combines common classifications of the brain with how research in these domains might advance pedagogy (Jensen 2000, 76–77). For instance, research on ‘the musical brain’ will allow us to better understand how musical training influences memory or learning. Research on ‘the plastic brain’ will focus on how to enrich the learning environment to help shape the brain. Research on ‘the adaptive brain’ will explore how distress, cortisol, and allostatic states influence learning. Research on ‘the developing brain’ may provide ways of optimizing the value of a child’s early years by knowing what to do and when to do it. Research on ‘the remembering brain’ may yield useful data on how our memories are encoded and retrieved (Jensen 2000, 76–77). Jensen acknowledges that brain-based learning is not yet available to schools for incorporation into their pedagogy, but he cautions against dismissing possible future applications of neuroscience to the classroom. Clearly, advances in neuroscience can (and indeed already have) contributed to pedagogy—for good or ill. For example, Fast ForWord (http://www.scilearn.com/), a product created by neuroscientists Michael Merzenich and Paula Tallal and ‘inspired’ by research on how to stimulate the memory or learning capacities of young brains – is being used in some US classrooms to help students improve their reading proficiency (Doidge 2007, 46–91; Jensen 2000, 79). Though the use of this technology is controversial, the fact remains that brainbased learning is an area of research interest to educators, some of whom appear to be avid consumers of neurotechnologies. Whether neuroimaging technology should have a direct role to play in brain-based learning, with the introduction of specific educational programs, or an indirect role, through advancing our understanding of the developing brain and how it learns, remains to be seen.
Screening and Streaming We can imagine at least three possible future uses of fMRI in the educational system: the use of fMRI (i) to identify students who could benefit from the provision of additional resources; (ii) to stream students into programs that are appropriate to their ‘perceived’ cognitive abilities; (iii) to identify potentially disruptive social traits, such as violent or aggressive dispositions. Currently, we screen students at various stages using different standardized tests. The most familiar tests include IQ testing and SATs. Because these tests reflect particular (often monistic) views of the nature of intelligence and are culturally situated (i.e. they reflect the dominant culture in which the questions are significant or indicative), worries have been raised about their validity in testing intelligence in children from certain disadvantaged cultural or socio-economic backgrounds (Santrock 2001, 288–91, 295– 99).4 In the belief that brain images could provide objective 4. Some advocates of IQ testing believe the tests to be objective, others acknowledge the potential for bias but remain convinced
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data about thought processes, there are those who would champion the use of fMRI to screen for traits relevant for effective learning such as memory and the ability to focus or multi-task.5 Reasoning along similar lines, at some future time some might even consider the use of pediatric fMRI or other neuroimaging technology to screen students for a disposition to violence or aggression. Neuroimaging in the Courtroom Current and proposed uses of fMRI in the justice system in the United States are many and include imaging for the purposes of determining competence to stand trial and, for juveniles, determining competence to stand trial as an adult (Beckman 2004). As well, it is anticipated that neuroimaging technology could be used in establishing full, diminished or absent criminal responsibility (Goodenough 2004), and in detecting lying (Gazzaniga 2005, 108–14). Arguably, the motivation for the inclusion of such technology in criminal and civil law is its perceived objectivity grounded in the belief that fMR images bypass the less reliable behavioural or physiological indices of diminished responsibility or deceit (such as gaze deviation, galvanic skin response, and pupil dilation) by providing direct evidence of a person’s beliefs, desires, thoughts and intentions (Gazzaniga 2005, 87–102, 108–14; O’Hara 2004; Tovino 2007, 46–47).
Determining Competence to Stand Trial Recent discussions of the competency of children to stand trial as adults, or even to receive adult punishments like the death penalty, reflect an increased understanding of the development of the juvenile brain. Levin writes, Socioemotional control is governed by the limbic system while the frontal lobe exercises cognitive control. The prefrontal cortex governs impulse and future orientation. Adolescence, which is distinct from puberty, is the transition from youth to adulthood and the last period of major neural change and development. Maturation of the prefrontal cortex results in greater ability to inhibit responses and increased capacity for complex thought and behavioral control. . . . During the transition, however, adolescents are more compulsive, more easily swayed by peer influences and short-term gratification, and more inclined to take risks. Gaining the behavioral control of which adults are capable may happen with time (usually by the late teens), but these categories change at different rates and at different times in each child’s life (Levin 2006, 10).
Though at the present time neuroimaging technology cannot alone determine a juvenile’s competency to stand trial as an adult, there is little doubt that as sensitivity and specificity of findings improve and confidence in the interpretation of neuroimaging data increases, efforts will be that this is an artefact of current testing that can be eradicated (Freedle 2003; Santrock 2001, 295–99). We are less sanguine about the prospect of eradicating social, cultural, or economic bias in IQ testing. 5. For a similar worry see Hinton 2004, 465.
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made to use this technology to make this type of determination. This will be particularly true of imaging technology that purports to reveal the state of development or function of brain regions and connections implicated in the voluntary control of behavior and rational decision-making.
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Criminal Responsibility In the last twenty-five years, neuroimaging technologies, including computerized tomography, positron emission tomography (PET), MRI, and most recently fMRI have been (and are being) used in civil and criminal trials in the United States. Initially these neuroimaging technologies were used in criminal trials to assist in determining whether a person possessed full or diminished capacity while committing a crime (Kulynych 1997, 1251–54; Pratt 2005, 1). In the trial of John Hinckley Jr., who shot US President Ronald Reagan in 1981, computerized tomography brain images showing enlarged sulci, a finding seen more frequently in schizophrenic patients than in healthy controls, were introduced as evidence of Hinckley’s schizophrenia and hence lack of guilt by reason of insanity (Pratt 2005, 1). While it is difficult to gauge how much weight the available brain scans enjoyed in the decision, the final judgment was that Hinckley was not guilty by reason of insanity. In 1992, PET scans of Herbert Weinstein’s frontal lobes were admitted as evidence in the People v. Weinstein (People v. Weinstein, 591 N.Y.S.2d 715 (Sup. Ct.) 1992). Weinstein was accused of strangling his wife and then throwing her body from the thirteenth floor of the building in which they lived in order to make her death look like suicide. Weinstein’s defense team argued that a subarachnoid cyst pressing on his left frontal cortex had brought about metabolic imbalances in that region of his brain as evidenced by the relevant PET images. They argued that these metabolic imbalances adversely affected Weinstein’s ability to distinguish right from wrong (President’s Council on Bioethics 2004). While Kulynch suggests that this putative evidence of Weinstein’s insanity inclined the prosecution in the case to accept a plea of manslaughter (Kulynych 1997, 1251, 1253), there is a dissenting view (President’s Council on Bioethics 2004). These two cases show how the presence of brain images has been (and so may continue to be) relevant to court decisions with respect to criminal responsibility and convictions. Though the cases cited above involve adult defendants and none involve fMRI, the judicial reasoning presumably would apply to cases involving children deemed competent to stand trial and likely would apply regardless of the neuroimaging technology admitted into evidence.6 6. Here it is worth mentioning that there have been legal cases involving fMRI evidence. For example, O. Carter Snead has described the admission of fMRI evidence to show a putative relationship between playing violent video games and aggressive behaviour in a recent suit involving a video game trade association and the State of Illinois. The fMRI evidence was presented in support of the claim that the State had a compelling interest in regulating violent games (Snead 2007, 25; Entertainment Software Ass’n v. Blagojevich, 404 F, Supp. 2d 1051 (N.D. Ill. 2005)).
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Lying One of the most widely discussed future uses of neuroimaging technology (including fMRI) is its introduction into the interrogation room and the courtroom by way of lie detection (see, for example, Gazzaniga 2005; Olsen 2005; Tovino 2007). Indeed, companies such as No Lie MRI (http://www.noliemri.com/index.htm) and Cephos (http://www.cephoscorp.com/) offer high-tech liedetection services based on research comparing neuronal activation patterns of liars and truth-tellers, even as they continue to research the technology so that it may one day be admitted in court as scientific evidence. Tracking lying using fMRI requires empirically tractable classification and markers of lying that third parties can use to detect lying with near perfect accuracy and reliability. Ganis and colleagues, for example, use fMRI to distinguish between spontaneous lying and lying using a memorized scenario (Ganis et al. 2003, 831). Thus far, this research has shown “that different patterns of brain activation arise when people tell lies than when they tell the truth, and the type of lie [spontaneous versus memorized] modulates these patterns” (Ganis et al. 2003, 833). Daniel Langleben’s fMRI research, though similar, is distinct. Langleben uses a guilty knowledge test to compare the brain activity of liars and truth tellers (Langleben et al. 2005, 263). Research participants are instructed to lie in response to specific questions and on this basis Langleben is able to track different neural activation patterns in the same individual when telling the truth and when lying (Langleben et al. 2005, 267–71). A central problem with research on lying is whether research participants understand their speech acts as lies (rather than, say, as role playing in a game that involves misleading an interlocutor). A concomitant worry (one that, ironically, Langleben admits (Wolpe et al. 2005, 42)) is whether the behaviors of research participants in test situations properly qualify as lying (Talbot 2007, 60–61). These challenges are particularly acute when the research participants are young children, who may not yet have a firm grasp of the demarcation between truth-telling and lying, especially in situations involving honest confusion or a desire to tell someone what they want to hear. Further difficulties include limitations with respect to a child’s imaginative capacity to successfully engage in lying in test situations. ETHICAL CHALLENGES WITH NON-CLINICAL APPLICATIONS OF PEDIATRIC fMRI The anticipated widespread clinical use of fMRI raises a number of ethical challenges, some of which apply to all patients, some of which are specific to pediatric patients, some of which apply to all types of healthcare interventions, and some of which are specific to fMRI. The discussion below highlights likely ethical challenges in the clinical setting that can be expected to carry over to the non-clinical setting. Moving from the ethics of clinical applications of fMRI to consider the ethics of non-clinical applications of fMRI is not a frivolous exercise in science fiction, but rather a responsible exercise of our moral imaginations. This exercise is crucial
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if we are to usefully influence the development and responsible use of this neuroimaging technology both within and outside the clinical setting. While others embrace the technological imperative to aggressively adopt (or, at the very least, uncritically accept) any and all future applications of fMRI, we embrace the moral imperative to carefully and critically assess the relevant ethical aspects of these possible future applications especially as applied to children.
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Informed Choice Informed choice, key elements of which include competence, disclosure, and voluntariness is one of the most salient and familiar ethical issues in pediatrics. Consider first the issue of competence to make health care decisions. This arises not only with developmentally delayed or disabled children, or children with neurobehavioral or psychiatric disorders, but also with healthy children who may not yet have developed decisional capacity. The health care provider must decide whether the child is capable of informed choice or whether authorization for the fMRI must be sought from the parents (hereafter understood to include guardians), with the child’s role limited to that of informed assent (Hinton 2002, 456–57). No doubt, the role of children in decision-making will be at the centre of policies regarding the use of fMRI in an educational or legal context. Next, there is the issue of full disclosure. Prior to making a decision to refuse or consent to fMRI, the child (or parent) should understand the nature and purpose of fMRI. To be precise, there should be a basic understanding of how fMRI works and whether fMRI is being offered for surgical planning, for diagnosis, for monitoring rehabilitation, or for some other reason. Whether fMRI is being offered as part of clinical care, innovative practice or research should also be well understood. As with other health care interventions, fMRI offered in a clinical setting may not be intended as a clinical intervention. Understanding on this point will be equally important for non-clinical applications of pediatric fMRI in order to avoid the possibility of therapeutic misconception (where there is misunderstanding regarding the purpose and potential benefit of fMRI). Full disclosure is also important with respect to both the potential benefits of fMRI and the potential harms (Hinton 2002, 456–57), regardless of whether fMRI is offered in a clinical or non-clinical context. Despite efforts to help children prepare for the experience of having to lie still in the scanner (which for some is a claustrophobic environment), children may nonetheless experience fear, stress and anxiety. These harms may be particularly acute for children who are neurologically or psychiatrically impaired and may lead to the use of physical or chemical restraints to reduce motion (e.g., pillow packing, taping of the forehead, body straps, mild sedation). If sedation is used, there is the risk of allergic reaction, respiratory arrest, seizure and, very rarely, death. As well, common post-sedation side effects include nausea and vomiting, sleep disturbance, and nightmares (Hinton 2002, 458–59). The child (or parent) must understand both the magnitude and probability of the above potential harms
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(e.g., some of the harms though very serious may be very rare; other harms may be very minor and very common). Full disclosure is a controversial matter, however, with respect to incidental findings. When an unexpected brain anomaly is identified in a clinical context many believe that there is an obligation to disclose this information to the patient (or parents). Given the potential for psychological and social harm, however, there is no consensus on what should be disclosed, to whom, and under what circumstances (Illes and Raffin 2005). The controversy is likely to be particularly acute when the fMRI is done for non-clinical purposes. If a child (or parent) consented to (or authorized) an fMRI in an educational or legal context, for example, and a brain anomaly unrelated to the purpose of the fMRI was identified, difficult questions would most certainly arise concerning who should be told what and when. Hinton provides a useful example of this type of situation where, on cranial ultrasound, an intraventricular hemorrhage is found in an asymptomatic child. Though evidence of intraventricular hemorrhage in a neonate correlates with a later expression of mental retardation and cerebral palsy, it need not be predictive of developmental problems for any particular child. When there is such a finding, worries arise about how to communicate the relevant information to parents without biasing the long-term outcome for the child who may be treated as if she is, or will be, disabled (which, in turn, may adversely affect her selfconception). As well, there are worries about whether the technician who identifies the intraventricular hemorrhage will recognize that what may look bad on a diagnostic image may not actually reveal an adverse condition (Hinton 2002, 463–64). While the example provided by Hinton does not address fMRI directly, it effectively illustrates the kind of difficulties that might arise, perhaps with different conditions, with fMRI. Further, in the non-clinical context, concerns about voluntariness are likely to be particularly acute. Consider, for example, how children (or parents) might be subtly coerced into neurological testing for school admission and placement, if universal neurological screening becomes normalized in the educational setting. Similarly, children (or parents) might be coerced into providing ‘brain image evidence’ in support of legal testimony. Policy makers must be alive to the coercive power of such screening if they are to protect and promote informed choice. Confidentiality Though issues of privacy and confidentiality often overlap, they can be usefully distinguished: privacy demands discretion in the collection of information about others; confidentiality demands respect for the wishes of persons about whom private information has been collected as regards the management (e.g., storage, disclosure, and distribution) of that information. With fMRI issues of confidentiality will apply to the diagnosis of a neurological disease or a neurobehavioral or psychiatric disorder. The potentially harmful consequences for children of unwanted disclosure of private
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health information include the familiar risks of discrimination in health insurance, life insurance, future employment, and education. As well, there is the risk of labelling, potentially resulting in discrimination and stigmatization. As Hinton astutely notes, “A child may be labelled, treated differently, denied benefits, (such as enrolment into competitive schools or medical insurance for presumed pre-existing illness), and subjected to the downward spiral of low selfesteem” (Hinton 2002, 464). Furthermore, concerns about confidentiality are exacerbated outside the clinical context by increases in the acquisition and accumulation of personal data, particularly where such data is both available to third parties and open to potentially damaging interpretation. This is a particularly gnarly issue if one imagines that it would be possible for a neuroimager to gain access to (and possibly use without consent) data about a person’s thought processes that would not otherwise be available. Consider, for example, neurological testing to screen for potential behavioral problems. Such testing would inevitably capture children with the relevant neurocorrelates, but no actual behavioral symptoms (Hinton 2002, 461, 463). This possibility raises at least two problems. The first problem is that of labeling and potential discrimination. The second problem is that of the self-fulfilling prophecy (Hinton 2002, 464). That children tend to live up to the expectations that others have of them suggests real dangers in identifying them as at-risk for developing behavioral problems (Illes and Raffin 2005). Given these risks to children it is difficult to see how policy makers could endorse looking at images of brain states correlated with certain behaviors across a population rather than looking at the behavior of individuals. All of this is further complicated by the fact that the use of fMRI does not do away with the problem of cultural or class bias, so the perception of objectivity attaching to the use of fMRI must be offset by a vigilance to avoid potential negative inferences. State institutions in democratic societies have a particular obligation to guard against procedures that effectively discriminate against already marginalized groups and such considerations must inform policy decisions concerning non-clinical uses of fMRI.
Misinterpretations Finally, there are the ethical challenges associated with the potential misinterpretation of fMRI data (e.g., the misconstrual of association as causation) and the potential negative consequences of this for the future clinical and social treatment of children who have been imaged. Misinterpretation of fMRI data puts children who are diagnosed with a neurological problem, a cognitive deficit, or perhaps even an unacceptable social trait at risk of inappropriately aggressive care, over-protectiveness by parents, health care providers, and educators, as well as labelling and stigmatization (Downie and Marshall 2007, 153–55). Consider, for example, the possibility that a child is misdiagnosed with a permanent cognitive disability (or conversely misdiagnosed
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as gifted) and inappropriately treated or streamed in the school system on the basis of misinterpreted data. In the non-clinical context, the primary worry is the misperception that neuroimaging technology can provide uniquely direct and less fallible knowledge of someone’s beliefs, desires, thoughts, and intentions. This misperception may encourage educators, officers of the court, policymakers and others to by-pass various traditional and effective ways of assessing another’s beliefs, etc. Much the same point is made by Fuchs who discusses “the apparent objectivity of visualizing the ‘brain in action”’ (Fuchs 2006, 601) and a troubling tendency to “search for the self in states of the brain” (605). He notes “[t]he widespread misunderstanding of brain scans as direct measures of psychological states or even traits . . . carries the risk that courts, parole boards, immigration services, insurance companies and others will use these techniques prematurely” (601). We now turn our attention to this discrete issue. INTERPRETIVE DIFFICULTIES WITH NON-CLINICAL APPLICATIONS OF PEDIATRIC fMRI: DISTINGUISHING ‘BRAIN READING’ FROM ‘MIND READING’ A full appreciation of the dangers of the misinterpretation of, or misguided confidence in, fMRI data, requires a critical perspective on some of the assumptions about the extent to which ‘brain reading’ (i.e., imaging and interpreting brain activity) can function as effective ‘mind reading’ (i.e., ascribing specific beliefs, desires, thoughts, and intentions). As we will argue, an adequate appreciation of brain plasticity as well as brain variability across the human population precludes drawing any meaningful conclusions about an individual’s beliefs, desires, thoughts and intentions solely from images of brain activity. It is exceedingly unlikely that there will ever be an autonomous science of ‘mind reading’ based solely on brain imaging. Cognitive neuroscience will always need to rely on first person reporting and the cooperation of the imaged individual in order to successfully ascribe any socially, politically, or ethically significant content to any particular cognitive or affective state. The potential for misinterpretation when using neuroimaging data to understand another’s cognitive or affective states calls for diligence on the part of neuroimagers to ensure that nonspecialists and specialists alike understand both the significance and limitations of what neuroimaging data convey about the imaged brain. Failure to understand and appreciate both the significance and limitations of neuroimaging data poses significant ethical challenges for the future development and use of neuroimaging. Thus, future policy must be guided by these in principle limits to the purported mind-reading capacities of fMRI. Brain Plasticity The human brain has considerable adaptive capacity, or brain plasticity, expressed in the brain’s ability to restructure itself in response to trauma or even invasive surgery (Galaburda and Pascual-Leone 2006, 86–87; Santosh 2000, 417;
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Ward 2006, 177). Consider, for example, cases involving children who have had hemispherectomies—where a portion, or all, of one brain hemisphere has been surgically removed, typically to prevent the reoccurrence of debilitating seizures that are unresponsive to drug therapy. The recovery of functions associated with the missing brain tissue depends on such factors as the nature of the underlying condition, the age of onset for the seizures, and the age of the patient at the time of surgery. Some patients with hemispherectomies have gone on to excel in sports or post-secondary education and, perhaps astonishingly, one child recovered her ability to talk after the removal of her left hemisphere (Kenneally 2006). Another striking example of brain plasticity involves children with Callosal agenesis (a complete or partial absence of the corpus callosum) who show no functional impairment in common behavioural or cognitive tests and are only later diagnosed following an MRI in adulthood for other reasons (Taylor and David 1998, 132, 133). This plasticity highlights the limitations of any appeal to general brain templates to interpret images of malformed, damaged, surgically altered or even ‘normal’ brains. While neuroscientists can identify neural regions with certain functional capacities in both ‘normal’ and ‘abnormal’ brains, such identifications do not—and cannot be reasonably expected to—yield particularly precise or contentful cognitive or affective ascriptions.7 Interpretive difficulties are not limited to imaging applications that depend on comparisons between ‘normal’ and ‘abnormal’ brains, however. Even comparisons between structurally similar brains are complicated by plasticity. As an individual matures, her brain (regardless of whether it is considered normal, malformed, damaged or surgically altered)8 undergoes micro-structural changes (e.g., changes in synaptic potentiation) in response to learning that occurs over a lifetime (Galaburda and Pascual-Leone 2006, 86). Arguably, this means that two individuals from the same family, even identical twins, will have different micro-structural changes in their respective brains that reflect their different experiences over time and across contexts (Goldblum 2001, 17–19). We also know that past experience can affect how we perceive events within our sensory fields as they occur. This is not only evidenced by hollow-mask illusions and priming experiments (see http://www.richardgregory.org; Ward 2006, 181), but in what we know about selectivity of attention and awareness (Passer et al. 2005, 185–86, 189– 90). For example, an individual’s familiarity with a particular route to and from school informs what she perceives as she goes to school. Similarly, sensitivity to a friend’s philo7. For similar worries see Olsen 2005, 1550; Robinson 2004, 0716; Uylings et al. 2005; Ward 2006, 66-67, 74-75. 8. There is uncertainty with regard to the proper reference point for normal, healthy pediatric brain structure and function (Santosh 2000, 416; Wilke et al. 2003). One reference point is the CCHMC pediatric brain templates but these have not been evaluated or approved by the U.S. Food and Drug Administration, or any other agency (see Cincinatti Children’s Hospital Medical Center 2001).
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sophical or political perspectives may incline one to interpret his/her statements differently from those of a stranger, even when the same ideas are expressed (see Butler and McManus 1998/2000, 21–25; Passer et al. 2005, 189–90). How (and whether) these differences in mental states can be tracked in brain activity is a matter of dispute. Nevertheless, a scientific approach to the brain suggests that some differences in the underlying neural substrate correspond to some of the features of the mental states alluded to above (e.g., familiarity). Identifying specific mental states or their content, then, must take into account how differences in experience affect brain activity and the information it is believed to represent. It follows that non-clinical uses of fMRI directed toward youth crime or child witnesses, for example, must either be rejected or, at most, depending on the context or the state of the science, only ever used as corroborating evidence. Cooperation and First-Person Reporting The limitations on applications of neuroimaging technology created by brain plasticity are further exacerbated by the need for cooperation on the part of the individual being imaged and the need to rely on first-person reporting (Olsen 2005, 1550; Anonymous 2006). These requirements for accurate ‘mind reading’ presumably would be in play with initial brain imaging experiments to which research participants would have consented, but they may or may not obtain in subsequent non-clinical applications. Consider, for example, the use of neurogimaging technology for lie-detection. With an uncooperative participant, it will not be possible to acquire information with specific content as this requires first-person contextualization (see Ganis et al. 2003, 832; Anonymous 2006). With a cooperative participant who will report on relevant past experiences and occurrent states, a neuroimager can better accommodate idiosyncrasies in what and how brain activity correlates with specific beliefs, desires, etc. Greater precision in ‘mind reading’ requires increasing the weight accorded to various details of a person’s life. In our view, the anticipated breakthroughs in ‘brain reading’ (i.e., imaging and interpreting brain activity) in the service of ‘mind reading’ (i.e., ascribing specific beliefs, desires, thoughts, and intentions) imply an independence from the cooperation of the imaged individual and first-person introspection that is unrealistic. Beliefs, Desires, Thoughts and Intentions While many cognitive neuroscientists are enthusiastic about the usefulness of fMRI to detect neural correlates of elementary aspects of cognition, such as memory traces, or emotional valence, there are some who believe that their research demonstrates that “very basic forms of mind reading can be achieved with brain imaging” (Fox 2006, 32). Such perceptions of the power of fMR images imply that it is possible to make precise judgments about mental states such as beliefs, desires, thoughts and intentions through neuroimaging. These perceptions, however, are confounded by
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the ambiguity of ordinary mental state terms such as ‘belief’. The point can be made with the following example. Marcus Ross, an avowed ‘young earth creationist ’, recently successfully defended a dissertation on marine life in the Cretaceous period that reflects the timeline and evolutionary perspective of contemporary geology. Ross claims to be able to successfully navigate his creationist sensibilities and his professional training by recognizing and deferring to the relevant standards of rational belief as he moves from one context to the other. While among creationists he talks and thinks like a creationist and while among geologists he talks and thinks like a modern geologist (Dean 2007). If we take Ross at his word, and accept that he can navigate his creationist sensibilities and training in evolutionary geology, what are we to make of his stated ‘belief’ that mosasaurs vanished at the end of the Cretaceous? How do we track or even find evidence for this putative belief in his neural net? Is it properly regarded as a belief? Is it strongly believed, held as literally true, or meant allegorically? Who decides? Is there a fact of the matter here that is decidable merely using neuroimaging technology—i.e., independent of Ross’s own judgement about his degree of belief? Belief ascription, like the ascription of many other types of mental state, is a complicated matter. This limitation implies that mental states such as beliefs, desires, thoughts and intentions are not easily amenable to neuroimaging because there is fundamental uncertainty as to the ordinary meaning, and to the contextual sensitivity, of these terms. These uncertainties cannot be resolved by appeal to imaging data or by advances in imaging technology. It follows that non-clinical uses of fMRI which purport to provide evidence of beliefs, desires, thoughts and intentions overstate what is in the realm of the possible. Thus, agents of the state should take an extremely circumspect approach to any technologies purporting to so function, if not dismiss them outright. Communication and Misrepresentation Even if future applications of fMRI are designed to avoid the problems of discerning mental states and mental content described above, interpretive difficulties arising from the complex technologies that produce the colorful and visually striking pictures of the brain will still apply. Understanding and assessing the meaning of fMR images (or, indeed, EEGs, retinal maps, etc.) is a complex matter that touches on both the way in which the image is produced and the way in which the viewer interprets that image. In a limited sense, looking at an fMR image is just the same as looking at other pictorial images. Whenever we look at marks on a surface and see in them objects and situations we are drawing on a range of psychological capacities and background knowledge and making use of certain pictorial conventions.9 These visual experiences have a kind of dual nature in that we look at 9. This perspective is inspired by, and consonant with, Kendall Walton’s “principles of generation”—see Walton 1990, 40-41, 138-40. A
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mere marks on a surface and perceive a pictured state of affairs (Willats 1997, 221). These perceptual activities are often so automatic that their nature is hidden from the viewer herself (Walton 1990, 41) but the underlying perceptual skills are, in fact, gradually developed and learned and are often culturally specific. Scientific images are products of and instruments in scientific practice.Their content can only be fully deciphered by the trained judgement of the expert eye, which is inevitably culturally and historically situated (Daston and Galison 2007). As Illes and Raffin note, “one must be mindful of the . . . professional and cultural attitudes that the experimenter brings to design and interpretation” (2005). Generally, pictorial images allow for various degrees and depths of understanding. Examples are familiar both from art and science. Without the relevant background knowledge, an individual viewing a medieval painting of Christ’s crucifixion will miss the significance of a great deal of what is depicted. Nonetheless, if she is familiar with the conventions of other types of Western art and is a mature viewer with basic perceptual skills, she will glean some of the content, recognizing the people in the picture as people and the act of crucifixion as torture. X-rays are a similar, familiar example in the scientific sphere—most of the lay public can recognize certain x-rays as being of a hand, foot, torso, or head. Recognizing the anomalous, novel or pathological, even something as mundane as a fracture, requires the trained judgment of the expert (Daston and Galison 2007, 344). Thus, as in the case of medieval Christian art, members of the general public will typically be able to grasp some, but not all, of the content. It is the fact that pictures allow for different depths of understanding that makes them ideal for conveying scientific knowledge across disciplinary boundaries and to the lay public (Roskies 2008, 29). Insofar as we often share background knowledge, viewing conventions and perceptual capacities, we will tend to perceive similar things in various pictorial images. Thus, in both educational and legal contexts, images can be used to effectively convey information or act as evidence. The same features that make pictures powerful devices for communication make them prone for misrepresentation, however. Because pictures allow many different degrees of understanding, lay viewers will typically not know when they are overlooking or under-appreciating important information (e.g., the fact that fMR images picture oxygenated blood flow and not synaptic activity). Lured by apparent similarities to photographs, lay viewers tend to treat fMR images as epistemically transparent, when, in fact, there is a considerable inferential distance between the raw data and what appears on the screen (Roskies 2008). Compared to the lay viewer, the neuroscientist is able to draw upon more viewing skills when examining brain images. As an expert viewer, a neuroscientist is typically in a better position to
more detailed account of Walton’s theory and its application to scientific images, albeit in other domains, is given in Meynell 2008.
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judge not merely the content of the image but its status as evidence because she knows more about the causal processes that created it. But even ‘expert viewers’ may themselves lack a certain degree of understanding when utilizing data taken from their field of expertise (Bechtel and Stufflebeam 2001, 55–56; Roskies 2008, 23–9). The individuals who design and build scanners and those who program the data analysis and process the data manipulate specific processes and utilize analytic procedures that transform certain kinds of physical states into certain visual outputs or brain images. Briefly, for fMRI this includes quantum mechanical phenomena that produce radio emissions from the brain, which are recorded as data and processed to produce images (Bechtel and Stufflebeam 2001, 68), as well as the theoretical correlations linking oxygenated blood flow to cognitive states. As Betchel and Stufflebeam describe, new imaging technologies prompt periods of negotiation about the appropriate analytical procedures and norms for interpreting the images produced. These negotiations rely on a detailed knowledge of the processes that produced the image from the brain. Once certain protocols for use and interpretation are generally accepted, however, the basic viewing skills required to glean the content of the images will tend increasingly to operate independently of the knowledge of these processes and analytical procedures (Bechtel and Stufflebeam 2001, 56). Thus we can expect that, over time, many of the individuals using brain images as evidence, even expert interpreters of these images, may lack a complete and nuanced understanding of the features of the processes producing the images that justify treating them as evidence. As such, they may not be able to recognize and diagnose anomalous images and may fail to distinguish aspects of images that are artifacts of the equipment or the subject from real phenomena. The difficulty of acquiring a deep and nuanced understanding of fMR images and their production combined with the ease of gaining a superficial understanding of the images makes the danger of misinterpretation particularly pressing (Roskies 2008, 19). This can only be exacerbated if fMRI applications move beyond the clinical context to situations (e.g., the classroom and the courtroom) where fMR images are interpreted by individuals with only a limited grasp of the relevant science who are at risk of being seduced by the persuasiveness of pictorial information. The pictorial nature of fMR images means that they can serve as powerful communication devices, but we must be particularly wary of their potential to be misinterpreted and thus mislead. It follows that policy makers must themselves be guided by ‘expert viewers’ who not only maintain a high degree of expert knowledge, but also cultivate the skills required to be good educators (Bobholz et al. 2007). CONCLUSION The anticipated clinical benefits of pediatric fMRI are considerable, notwithstanding certain familiar ethical challenges and interpretive difficulties. In contrast, with the anticipated non-clinical applications of pediatric fMRI in the classroom and the courtroom there are additional ethical January, Volume 9, Number 1, 2009
challenges and the potential for misinterpretation is particularly acute and risky. Moreover, there is the worry that non-clinicians, including the lay public, may believe (and so act as if) ‘brain reading’ and ‘mind reading’ are one and the same, thereby failing to appreciate the difficulties attached to any empirical project that reduces beliefs, desires, thoughts and intentions to brain activity. In our view, the ethical challenges and interpretive difficulties with non-clinical applications of pediatric fMRI, suggest that policy makers should be vigilant in protecting children from the possible harmful consequences of fMRI and be prudent in endorsing or employing this technology beyond the clinical setting.
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