Must the Surgeon Take the Pill? Negligence Duty in the Context of Cognitive Enhancement
| Date | 01 January 2014 |
| DOI | http://doi.org/10.1111/1468-2230.12056 |
| Author | Imogen Goold,Hannah Maslen |
| Published date | 01 January 2014 |
Must the Surgeon Take the Pill? Negligence Duty in
the Context of Cognitive Enhancement
Imogen Goold*and Hannah Maslen**
Recently, attention has turned to the possibility of enhancing human cognitive abilities via
pharmacological interventions. Known as ‘cognitive enhancers’, these drugs can alter human
mental capacities, and in some cases can effect significant improvements. One prime example is
modafinil, a drug used to treat narcolepsy, which can help combat decreases in wakefulness and
cognitive capacity that arise due to fatigue in otherwise healthy individuals. In this paper, we
respond to calls in the philosophical and ethical literature that surgeons and other medical
professionals should be morally obliged to take cognitively enhancing drugs. We examine
whether surgeons who make fatigue-related errors during patient care might be considered legally
obliged to enhance themselves. We focus on liability for a failure to medicate, and conclude that
it is highly unlikely that surgeons will be legally obliged to address their fatigue through the use
of cognitive enhancing drugs.
INTRODUCTION
Human beings attempt to enhance their capacities in many ways. They train
their bodies through physical exercise and they develop their minds through
reading and study. In many professions, such training is a prerequisite for
employment. For example, surgeons must complete at least nine years of study
and demonstrate proficiency in a wide range of required competencies before
they may legally practice. Surgeons emerge from their training able to perform
tasks that were previously unable to perform – they have enhanced their
capacities.
Recently, attention has turned to another form of capacity enhancement – the
improvement of cognitive abilities via pharmacological interventions. Known as
‘cognitive enhancers’, these drugs can alter human mental capacities, and in some
cases can effect significant improvements. Two drugs in particular have garnered
interest for their potential as cognitive enhancers: Ritalin and modafinil. Both are
increasingly being used by people who hope to experience positive impacts on
cognitive effectiveness and efficiency, and in some cases this use is occurring in
a professional context.
To date, the discussion of cognitive enhancers has occurred mostly within the
philosophical and ethical literature. Considerable attention has been paid to
*Lecturer, Faculty of Law, University of Oxford and Fellow and Tutor in Law, St Anne’s College.
**Postdoctoral Research Fellow in Ethics, Uehiro Centre for Practical Ethics, University of Oxford,
and Junior Research Fellow at New College, Oxford. We would like to thank Professor Peter Cane,
Professor Jane Stapleton and Dr Sarah Green for valuable discussions during the writing of this paper,
and also the two anonymous reviewers for their helpful comments. We are grateful to Inbar Levy, Paul
Troop and Natasha Simonsen for the excellent research assistance they each provided. The writing of
this paper was generously funded by the Netherlands Organisation for Scientific Research (NWO),
The Faculty of Law, University of Oxford and the Uehiro Centre for Practical Ethics at the
Universityof Oxford.
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© 2014 The Authors. The Modern Law Review © 2014 The Modern Law Review Limited. (2014) 77(1) MLR 60–86
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
questions pertaining to the ‘fairness’ of their use1and whether the cognitive life
that enhancers precipitate is ‘authentic’.2Of more significance from a legal
perspective is the emerging view that certain professionals might be morally
obliged to take cognitive enhancers. This view is taken seriously by policy-
orientated working groups, by legal scholars and even by some of the profes-
sionals themselves.
For example, a report on human enhancement and the future of work,
produced by the Royal Society, Academy of Medical Sciences, British Academy,
the Royal Academy of Engineering and the Royal Society, commented that:
[O]ccupations that require particular patterns of focus could benefit from enhance-
ments that facilitate achieving such patterns. For example, surgeons may need to be
able to concentrate for extended periods, whereas other jobs such as air traffic
control can require very rapid reactions during periods of relative uniformity. As an
extrapolation to this, it is possible that in these high-responsibility occupations
enhancement could be seen as a moral obligation, or even demanded by the
public.3
Similarly, the editors of Mayo Clinic Proceedings, both medical doctors, have
argued that there are conditions under which resident physicians have an
ethical duty to take a stimulant like modafinil to reduce errors:
What if a legal stimulant that is shown to be safe could be used to improve medical
care during periods of fatigue, regardless of the number of hours worked? Would not
the more ethical choice be to promote the reduction of errors – First, do no harm?4
Writing in the Journal of Surgical Research, surgeons have also suggested that
the prospect of themselves and their colleagues having to take enhancers is not
far-fetched and may come to be required practice. They say:
The prospect of fatigued surgeons taking a prescription drug, such as modafinil, to
allow them to operate for longer, and possibly to a higher standard, is perhaps not
as far-fetched as some may suggest. This drug has already been trialled in emer-
gency physicians, when performing non-medical-related tasks at the end of a
nightshift.5
1 See, eg, J. Savulescu, ‘Justice, Fairness, and Enhancement’ (2006) 1098 Annals of the New York
Academy of Sciences 321.
2 I. Singh, ‘Will the “Real Boy” Please Behave: Dosing Dilemmas for Parents of Boys with ADHD’
(2005) 5 The American Journal of Bioethics 34.
3 The Academy of Medical Sciences and others, Human Enhancement and the Future of Work (Report
from a Joint Workshop, November 2012) 38 at http://www.acmedsci.ac.uk/p47prid102.html
#downloads (last visited 22 May 2013) (citation omitted).
4 S. H. Rose and T. B. Curry, ‘Fatigue, Countermeasures, and Performance Enhancement in
Resident Physicians’ (2009) 84 Mayo Clinic Proceedings 955. There is increasing support for
enhancement in other areas in the ethics literature. See, eg, J. Harris and A. Chatterjee, ‘Is it
Acceptable for People to Take Methylphenidate to Enhance Performance?’ (2009) 338 British
Medical Journal 1532, 1533, arguing that it is ‘not rational to be against human enhancement’.
5 O. J. Warren, D. R. Leff, T. Athanasiou, C. Kennard and A. Darzi, ‘The neurocognitive
enhancement of surgeons: an ethical perspective’ (2009) 152 Journal of Surgical Research 167, 168.
Imogen Goold and Hannah Maslen
© 2014 The Authors. The Modern Law Review © 2014 The Modern Law Review Limited. 61(2014) 77(1) MLR 60–86
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