ABSTRACT: The appointment of a healthcare proxy is the most common way through which patients appoint a surrogate decision maker in anticipation of a future time in which they may lack the ability to make medical decisions themselves. In some situations, when a patient has not previously appointed a surrogate decision maker through an advance directive, the healthcare team may ask whether the patient, although lacking the capacity to make a healthcare decision, might still have the capacity to appoint a healthcare proxy. In this article the authors summarize the existing, albeit limited, legal and empirical basis for this capacity and propose a model for assessing capacity to appoint a healthcare proxy that incorporates clinical factors in the context of the risks and benefits specific to surrogate appointment under the law. In particular, it is important to weigh patients’ understanding and choice within the context of the risks and benefits of the medical and interpersonal factors. Questions to guide capacity assessment are provided for clinical use and refinement through future research.

Source: The American Journal of Geriatric Psychiatry 21:4, April 2013, pp. 326-336.By Jennifer Moye, Ph.D., Charles P. Sabatino, J.D., Rebecca Weintraub Brendel, M.D., J.D.

[Read the full paper]

Recently, Massachusetts Attorney General Martha Coakley took the unusual step of warning the Massachusetts elderly about a widespread telephone scam. In these so called “grandparent scams,” someone who claims to be a relative calls to say that a grandchild or family member is in trouble and instructs the target to wire money in order to help. To back this claim, callers offer demographic information easily obtained on the internet, or information inadvertently provided by the victim while on the telephone. Continue reading »

Decision-making is a complex executive function that draws on past experience, present goals, and anticipation of outcome, and which is influenced by prevailing and predicted emotional tone and cultural context. Functional imaging investigations and focal lesion studies identify the orbitofrontal, anterior cingulate, and dorsolateral prefrontal cortices as critical to decision-making. The authors review the connections of these prefrontal regions with the neocortex, limbic system, basal ganglia, and cerebellum, highlight current ideas regarding the cognitive processes of decision-making that these networks subserve, and present a novel integrated neuroanatomical model for decision-making. Finally, clinical relevance of this circuitry is illustrated through a discussion of frontotemporal dementia, traumatic brain injury, and sociopathy.

Source: The Journal of Neuropsychiatry and Clinical Neurosciences 2012; 24:266–277. Authors: Michael H. Rosenbloom, M.D.; Jeremy D. Schmahmann, M.D.; Bruce H. Price, M.D. [Read the article]

Dr. Judith Edersheim, co-founder and co-director of the Center for Law, Brain and Behavior at Massachusetts General Hospital, explores how neuroscience can enhance the pursuit of justice.

“If neuroscience could shed light on mental states, it might be able to illuminate whether someone meant the crime or intended to harm someone,” Edersheim told approximately 200 students, faculty, staff and community members who filled Northeastern’s Raytheon Amphitheater on Tuesday for the 13th annual Francine and Michael Saferstein Memorial Lecture in Forensic Science.

The lecture series — which is co-sponsored by the Barnett Institute of Chemical and Biological Analysis and the School of Criminology and Criminal Justice — was established by forensic scientist Richard Saferstein in memory of his wife and child, who were killed in 1978 when a bomb discharged inside the family’s garage.

Barry Karger — the James L. Waters Chair in Analytical Chemistry in Northeastern’s College of Scienceand director of the Barnett Institute of Chemical and Biological Analysis — introduced Edersheim by praising her for “performing a broad range of psychiatric evaluations in criminal and civil forensic settings.”

Edersheim, who holds both an MD and JD, said “neurolaw” is similar to  “neuropolitics” and “neuromarketing,” in that the field tries to incorporate both neuroscience and psychology into a more established practice.
Continue reading »

Brandon Monroe for the New York Times

I. Mr. Weinstein’s Cyst When historians of the future try to identify the moment that neuroscience began to transform the American legal system, they may point to a little-noticed case from the early 1990s. The case involved Herbert Weinstein, a 65-year-old ad executive who was charged with strangling his wife, Barbara, to death and then, in an effort to make the murder look like a suicide, throwing her body out the window of their 12th-floor apartment on East 72nd Street in Manhattan. Before the trial began, Weinstein’s lawyer suggested that his client should not be held responsible for his actions because of a mental defect — namely, an abnormal cyst nestled in his arachnoid membrane, which surrounds the brain like a spider web.

The implications of the claim were considerable. American law holds people criminally responsible unless they act under duress (with a gun pointed at the head, for example) or if they suffer from a serious defect in rationality — like not being able to tell right from wrong. But if you suffer from such a serious defect, the law generally doesn’t care why — whether it’s an unhappy childhood or an arachnoid cyst or both. To suggest that criminals could be excused because their brains made them do it seems to imply that anyone whose brain isn’t functioning properly could be absolved of responsibility. But should judges and juries really be in the business of defining the normal or properly working brain? And since all behavior is caused by our brains, wouldn’t this mean all behavior could potentially be excused?

Read the full article in the New York Times. By Jeffrey Rosen, CLBB Faculty member, commentator on US legal affairs, and President and CEO of the National Constitution Center in Philadelphia. Published March 11, 2007.