4. Applications of existing and upcoming concern
A key difficulty highlighted here is that users of
implanted BCIs require significant and continued
support for the life of the device, irrespective of the
economic viability of the product itself. This may
leave people with limited support if they are left
with redundant technology in their heads, with little
means of seeking remittance or support.
Informed consent and impaired
decision making
Article 12 CRPD recognises that people with
disability enjoy legal capacity on an equal basis with
others in all aspects of life. Article 12 directs State
Parties to ensure that all measures relating to the
exercise of decision‑making capacity provide for
appropriate, effective and necessary safeguards.
It is critical that this be applied in the context of
neurotechnological treatments.
International treaty bodies and experts, such as
Special Rapporteurs, continue to recommend
targeted and concrete measures to reduce and
eliminate medical coercion and forced psychiatric
treatment. It is imperative that the provision of
neurotechnological treatments aligns with human
rights obligations.
Generally speaking, inappropriate expectations
about a product or device have been identified
as a genuine impairment to informed consent.145
Users of BCIs may also have pre‑existing cognitive
impairment which can adversely impact their ability
to provide initial and continuing informed consent.
More concerning is the proposition that, by way
of the implantation process, associated cognitive
changes may disrupt such informed consent
processes.146 A person should be supported to make
informed decisions, consistent with article 12.
In the exercise of informed consent, power
asymmetries at play in the context of medical
decision‑making need to be addressed.147 Power
imbalances can affect users as active right holders.
Informed consent is especially important in this
context as it allows people to choose whether or
not to engage with neurotechnology. Consent may
be illusory when people with disability must make
a choice that is starkly binary: either consent to the
conditions set, or do not receive the technology.
The issues surrounding consent are further
complicated by the question of whether
neurotechnical procedures are classified as medical
treatment or mental health treatment – as differing
laws apply to the two applications. Where treatment
is for ‘mental health’ purposes, it is more readily
permissible for treatment to be provided on an
involuntary basis.148
Many people who are considered ‘neurodivergent’,
or someone with disability, may not consider
neurological treatment necessary or desirable. The
medical profession should respect their needs and
desires. It should not be assumed that all people
with disability are in need of treatment, or wish to
be treated.
In addition to being provided with the necessary
supports in decision‑making, any treatment
provided to people with disability/mental health
disorders should align with a recovery‑based model
and preferably be provided in a community setting.
The Special Rapporteur on Health has previously
recommended concerted efforts continue to be
exercised globally to shift mental health care away
from the predominant medical model.149
People with disability must not be presumed to
lack decision‑making ability on the basis of having
a disability. All people should be provided with
the appropriate supports to exercise their legal
capacity, and a person’s decision‑making ability
must be considered in the context of available
supports. In practice, this would mean that a
person is considered to have decision‑making
capacity if they can exercise that capacity with the
provision of supports. Supported decision‑making
is encouraged to support people with disability to
make, communicate and participate in decisions
that affect their lives.150
Given the risks associated with informed
and impaired decision‑making, stringent
risk assessments must be conducted before
implantation or usage of neurotechnical devices
to minimise the harms discussed throughout this
background paper (noting that there are also other
potential harms not discussed here that should also
always be taken into account).
Australian Human Rights Commission
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