The Legal Ethics of Memory Supressants

This is a rather interesting article about an issue I hadn't even known was on the horizon: the legal issues surroudning memory dampening. Apparently, there is some reason to believe that the beta blocker propranolol, typically used to treat hypertension, may also be effective at preemptive treatment of Post-Traumatic Stress Disorder - by blocking the formation of memories of the triggering event. This is based on some double-blind experiments done on people admitted to hospitals after severe accidents. Members of the group given propranolol withing 6 hours of the experience were markedly (though results did not reach statistical significance) less likely to show effects of PTSD several months later (it is my understanding that treatment with propranolol was continued over 10 days under the assumption that recalling a memory, apparently even a dampened one, enhances it) than members of the placebo group.

Propranolol only dampens memories - it does not erase them entirely - by retarding their formation. So not only does propranolol not offer complete freedom from traumatic memories, it also has to be administered rather quickly. The article (which is from a legal journal) concludes that this makes the legal issues less accute. But of course it's worth thinking about them now all the same because the day may come when more effective - in the sense of "selective and total" - memory blockers are available.

The author - UCSD law professor Adam Kobler - identifies these specific legal issues:

(1) Informed consent - since propranolol has to be administered relatively quickly, the patient is usually not in a state where he can give a completely detached judgment about whether he wants his memories dampened. However, this is the case with a number of medical issues, so Kobler doesn't see this being the major concern.

While memory dampening is a more novel and unfamiliar therapy than is amputation, every significant medical innovation is novel and unfamiliar for some period of time, and that is not ordinarily enough to vitiate the quality of patient consent. In any event, a patient's state of trauma cannot be a complete hindrance to obtaining his informed consent, for if we truly thought a patient incompetent to consent, we typically still seek consent from close relatives or the courts.

I'm not a legal scholar, and so I don't know how seriously PTSD and so on are taken relative to decisions to amputate, but I wouldn't be as dismissive of legal complications as Kobler is here. It seems to me that a complicating factor in all of this is likely to be that it's harder to draw a causal inference between trauma and PTSD than it is between injury and physical debilitation. The psychological mechanisms underlying PTSD aren't well-understood enough to allow us to reasonably predict which individuals will suffer from it under which circumstances. Some people deal better iwth mental trauma than others. So I would imagine there are a whole host of legal wrinkles (that can be exploited for lawsuits) out there where "consent" to have one's memory dampened soon after an accident is an issue.

(2) Obstruction of Justice - This is probablly the most interesting one. Can the government hold people responsible for retaining their memories - at least long enough to testify in a criminal trial? Apparently, the definition of obstruction of justice is deliberately broad to as to cover "novel and creative schemes" that people might come up with - i.e. beyond threats or tampering with evidence or getting a witness drunk, etc. Obviously, it was intended for just the kind of situation that propranolol imposes. For largely this reason, and also on the basis of United States v. Neiswender (1979) 590 F.2d 1269, Kobler thinks it possible that witnesses and even crime victims will be charged with (probably some mild form of) obstruction of justice for taking propranolol to supress memories of the violent events they witnessed or were victims of.

This is one of those issues that's harder for a libertarian, I think, than for adherents to other political philosophies because we generally have a greater concern for bodily integrity and individual autonomy. If the individual owns his memories - and surely we libertarians agree that he does, especially as regards those physically encoded in his brain (in contrast with those written down or related to another or whatever) - then surely there is a property and an automony issue in allowing him to supress them, even if that's a hindrance to legitimate state efforts to incarcerate violent offenders. My own personal instinct on this - not having thought too much about it - is, however, pretty unlibertarian. I don't really mind prohibiting memory tampering in the interest of furthering police investigations. This is mostly, I admit, because I'm pretty skeptical of mental trauma issues in general. I would add that memory is a notoriously tricky thing anyway, and that witness testimony is known to be unreliable, so I doubt this is going to be as big an issue as it might, at first, seem, especially as forensic technology improves and every square inch of the planet comes to be filmed.

(3) Mitigation of Emotional Distress Damages - Apparently refusing reasonable medical treatment has been used to lessen damages in owed to plaintiffs in lawsuits. This is for cases involving a victim who is a religious goofball of some sort - say, a Jehovah's Witness - who thinks that God forbids certain kinds of medical treatment. The courts have (thankfully) held that such decisions are the plaintiff's responsibility, and damages are generally awarded on the basis of what more ordinary people would choose to do in the same situation. For this reason, Kobler speculates that defendants in damage lawsuits may try to have emotional distress damages lessened on the grounds that the plaintiff refused memory-dampening treatment. However, he considers the danger minimal that courts will take such claims seriously, especially as memories are usually essential to the fact-finding process in such suits. I agree, and would in any case add that what constitutes "reasonable treatment" will evolve as memory dampening does (or doesn't) become generally accepted.

All-in-all, a very intersting issue that I hadn't even known was out there.