4. Applications of existing and upcoming concern
reintegration into society. This approach has been
referred to as ‘neuroprevention’ by experts Ruiz and
Muñoz in a recent article.207
When offering neurological interventions in place
of conventional sentencing or incarceration, it may
be questionable whether full and informed consent
can be provided. Especially in cases where the
consent to the use of neurotechnology could be
used transactionally for sentence reduction or an
earlier parole period, it could be argued that the
offender is formally consenting to treatment despite
their preference not to.208 However, there is debate
as to whether ‘coercion’ of this kind is enough to
invalidate consent. Analogising to a patient suffering
from a severe illness, consent would not be
considered invalid in circumstances where a patient
is choosing between lifesaving treatments, despite
the severely limited options and invasive nature.209
Offenders need to agree to such interventions
voluntarily as they involve an invasive
biological intervention compared to traditional
psychotherapies, which are undertaken
collaboratively with the patient, and other medical
correctives.210 However, in a study published in 2019
surveying participants convicted of sexual offences,
the participants believed that their freedom of
choice would not be compromised on account of
potential coercion of legally motivated treatment.211
Participants highlighted that there would need to
be requirements for ‘thorough explanation[s] of
the purpose, risks and benefits of the treatment
options’, and ’adequate time to process this
information’ so that they could receive medical
advice.212 The treatment offered should therefore be
the least invasive neurointervention, ensuring that
the treatment prescribed is not disproportional to
the severity of the crime committed.
Australian Human Rights Commission
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