Abstract
Behavioural variant frontotemporal dementia (bvFTD) is characterized by an absence of obvious cognitive impairment and presence of symptoms such as disinhibition, social inappropriateness, personality changes, hyper-sexuality, and hyper-orality. Affected individuals do not feel concerned enough about their actions to be deterred from violating social norms, and their antisocial behaviours are most likely caused by the neurodegenerative processes in the frontal and anterior temporal lobes. BvFTD patients present a challenge for the traditional notion of autonomy and the medical and criminal justice systems. Antisocial behaviour is often the earliest recognized manifestation of bvFTD. Given that the symptoms are not specific and that atrophy of the frontal lobes is only observable with structural neuroimaging in the later stages of the disease, it is hard to ascertain their autonomy. Recently proposed re-conceptualizations of autonomy (Dworkin’s, Jaworska’s, and Dubljević’s) can, however, be sufficiently redefined to provide explicit rules and offer nuanced guidance in such cases. A combination of notions of autonomy gives the most nuanced guidance with three modifications: 1) including socio-moral judgement in the notion of “normal cognitive competence,” 2) excluding in-principle un-endorsable ideals from the notion of “capacity to value,” and 3) redefining ideal-typical degrees of compulsion (mild, severe, and total).
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Notes
This “default” approach is shared by many jurisdictions in the West, most notably in countries with the common law tradition. As succinctly formulated by Hardcastle “Western law assumes that all adults are rational beings who act for specific reasons … In other words, courts do not care about issues of impulse control, impaired executive functioning, and the like” (Hardcastle 2018, 325).
An argument could possibly be made (by strong supporters) to salvage the usefulness of the Frankfurtian concept of autonomy in bvFTD. However, that would take a strong supporter actually doing the work of re-conceptualizing, which may or may not be fruitful. Either way, there is a strong presumption that re-conceptualizations (some of which draw on Frankfurt) may be more appropriate in application (see discussion below). In fact, Dworkin’s view may be seen as an extension of Frankfurtian autonomy, informed by neurology and neuroscience and applied in the context of dementia. As such it avoids some of the unfortunate language that is traditionally used, while better aligning the principle of autonomy with relevant scientific findings and intuitions in the specific case of dementia.
Even though Alzheimer’s disease (AD) and FTD share certain symptoms, the onset and progression are different. Thus, socio-moral decision-making deficits do occur in AD but at a much later stage. I am grateful to an anonymous reviewer for prompting me to make this clear.
This is very clear in the example of Tommy McHugh: “ … a heroin addict incarcerated for violent offenses … addiction has persisted until a cerebral hemorrhage altered his personality. After suffering damage to frontal and temporal lobes, he was effectively cured of his addiction but he developed a compulsive interest in painting, sculpting, and writing. Unlike his previous condition (addiction), he is committed to his current compulsions, and claims that life is 100% better’. [ … ] [T]he idea of a rational life-plan clarifies the difference in these two compulsions. Namely, addiction to heroin cannot be incorporated into a long-term rational life-plan whereas compulsive artistic interest can” (Dubljević 2013, 48). Unlike addicts, however, bvFTD patients usually don’t see any issues with their anti-social behaviour, and feel that their lack of inhibition is basically liberating and good. In the words of one bvFTD patient “I’ve never felt better in my life” (see Dubljević 2019).
Such guidance is familiar in the philosophical literature. For instance, Kitcher contends that “[d]esires are endorsable just in case there are possible environments in which they could be satisfied for all our fellows” and “ … the desire to have adequate food is endorsable, whereas the desire to monopolize reproduction is not” (Kitcher 2011, 223).
As people with Alzheimer’s disease (AD) also exhibit failures of socio-moral judgement and commit crimes, and for reasons of expedience, I am not arguing for establishing a diversion court specifically for bvFTD. I presume that most of the cases will be from the bvFTD population, specifically because criminal behaviour is recurrent in bvFTD. For instance, a Swedish study reported instances of criminal behaviour in 14.9 per cent of AD patients and 42 per cent of FTD patients, whereas the criminal behaviour was recurrent in 56.4 per cent of AD patients and 89 per cent of FTD patients (see Liljegren et al. 2019). I am grateful to an anonymous reviewer whose constructive comments prompted me to consider socio-moral deficits in AD and generalization of findings of this article to how autonomy is embedded in the legal system.
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Dubljević, V. The Principle of Autonomy and Behavioural Variant Frontotemporal Dementia. Bioethical Inquiry 17, 271–282 (2020). https://doi.org/10.1007/s11673-020-09972-z
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DOI: https://doi.org/10.1007/s11673-020-09972-z