Neurotechnologies, personal identity and health in the patient-physician relationship: a private law perspective
The development of neuroscience and neurotechnologies gives rise to several problems that are relevant for the law.
My presentation will deal with the important issue of those interventions on the human body that aim to fulfil personal interests such as one’s health. This issue will be discussed from the perspective of the private law with special regard to the Italian legal system. More specifically, interventions on the human body will be considered with respect to the therapeutic relationship where it is necessary to take into account both the patient’s position and the physician’s obligation to guarantee the interests of the patient.
Furthermore, I will consider the role that could be played by the reference to identity, within the framework of private law, when regulating the relationship between physician and patient, who are viewed as subjects acting in the exercise of their own “private autonomy”. In this sense, it will be useful to identify the different forms and functions that reference to identity can have in relationship with other personal interests protected by the law.
I will focus on the relationship between the development of the concepts of health, self-determination, psychophysical integrity and more widely on the inviolability of the person and the changes in the social perception of the values correlated to each of these concepts.
In this perspective, I will identify what the current legal tools are and how they can tackle the issues arising from the most recent developments in neuroscience.
As a matter of fact, there are important research projects that have been testing the actual therapeutical opportunities stemming from neuroscience and applications of new technologies for the treatment of degenerative diseases (e.g. Parkinson disease) or for the replacement of lost senses like vision or hearing. Moreover, some studies on the functioning mechanisms of the human mind are directed to the enhancement of human performances by means of drugs, genetic modifications and technical devices which aim to strengthen and/or stimulate the brain structures.
From a normative point of view, interventions on the human body with therapeutical purposes are different from interventions aimed to fulfil other personal interests. Nevertheless, it is sometimes difficult to say whether or not an intervention actually affects one’s health (think about remedies for age related cognitive decline), especially if one considers the weakening of the borders between health and illness.
I will analyse some general and traditional issues, such as the individuation of the trade-off between risks and benefits and the role of the informed consent in the patient-physician relationship, that give rise to new questions in these different contexts.