5.1 Introduction
We tend to think that we are prima facie morally entitled to determine the course of our own lives to some degree, and to make our own decisions about matters that are personal to us. Dworkin speaks of our “right to make decisions about the character of [our] lives”.Footnote 1 Feinberg suggests that we plausibly have a personal domain over which we are “sovereign” and hence where we “alone” have the final say about “what is to happen”.Footnote 2 And Akhlaghi defends the idea that we have a pro tanto or defeasible moral right to “autonomous self-making” – viz. a pro tanto moral right to autonomously decide to make certain “transformative choices” that will influence how our lives will go and who we will become.Footnote 3
These differing claims all circle around the thought that we have a moral right to, what we might call, “self-determination” or “self-authorship”. They support the thought that we have a pro tanto moral right to make and pursue certain personal and/or self-regarding decisions for ourselves such that we ought not to be prevented in doing so by third parties – at least insofar as these decisions and actions are indeed self-regarding or personal and do not (threaten to) violate the rights of, or otherwise harm, others.
A legal right to self-determination is inherent in our system of human rights and explicitly recognised under Article 8 of the European Convention on Human Rights (ECHR), which “embraces, among other things, a right to self-determination”.Footnote 4 Furthermore, Article 8 ECHR has been interpreted by the ECtHR as encompassing the protection of “personal development” and “personal autonomy”Footnote 5 – two concepts closely resembling, and which have been understood to roughly equate to, the self-determination described above.
This chapter examines the case for a legal right to mental self-determination, highlighting the legal and moral rationales that support such a right, before interrogating what such a right might imply for the case of neurorehabilitation. More specifically, we are interested in the positive dimension of such a right to mental self-determination. That is, the right to voluntarily alter and exercise control over our mental states, for example, with the help of neurotechnologies, psychoactive drugs or psychological techniques, without being thwarted in these efforts by third parties. Such a right is sometimes alternatively referred to as a right to cognitive liberty.Footnote 6
The question of whether we have a right to mental self-determination has become increasingly pertinent as new and emerging tools for altering our mental experiences develop. We can now avail of psychological techniques such as cognitive behavioural therapy or mindfulness strategies should we wish to alter our patterns of thinking.Footnote 7 Various pharmaceuticals can, or may soon, aid us in supplanting our negative emotions, anxious thoughts or traumatic memories.Footnote 8 And in future years, we may be able to avoid experiencing certain mental states with the aid of closed-loop brain technology – devices that can not only detect patterns in neural activity but also respond to them by stimulating the brain. Such devices may halt particular patterns of activity before they can manifest themselves.Footnote 9 The options available to us for exercising mental self-determination are thus increasing.
The question of whether we have a legal right to mental self-determination, including by accessing neurotechnologies or psychological techniques, therefore arises.Footnote 10 And the answer to this question has relevance for our analysis of whether convicted persons have a rights-based claim to neurorehabilitation – that is, for the question of whether human rights protection of persons’ powers of mental self-determination at least sometimes supports a rights-based claim to access neurorehabilitation (and if so, when).
The plan for this chapter is as follows. In section 5.2, we examine the legal and moral arguments that have been, or might be, advanced in support of persons’ legal right to self-determine or exert control over their mental states, including by accessing neurotechnologies. We then interrogate whether and when this putative right to mental self-determination might imply a state duty to offer or provide neurorehabilitation in section 5.3.
Three brief clarifications before we begin. First, in this chapter, as in elsewhere in the book, our interest is in examining the case for a legal right (henceforth, just right) to mental self-determination, but we explore both legal and moral rationales for such a right. By a legal rationale, we mean the sort of rationale that establishes the existence of a right by drawing on existing law. By a moral rationale we mean a rationale that appeals to moral reasons or principles in defending the case for embracing and accommodating a given right.Footnote 11 Second, when discussing the human rights protection of private life, we use the phrases “respect for private life” and “respect for privacy” interchangeably. Third, in this chapter, we focus on the positive right to exert control over one’s thoughts, including with the aid of neurotechnologies, but note that, in the literature, the right to mental self-determination has been invoked to denote both this positive right, and the negative right against third party interference with a person’s mental states – which we understand as the right to mental integrity.Footnote 12
5.2 Legal and Moral Rationales for a Human Right to Mental Self-Determination
5.2.1 Introduction
There are a number of routes by which we could defend the existence – or argue the case for embracing – a right to mental self-determination, four of which we shall consider below. The first three routes advance legal rationales for a right to mental self-determination, respectively, (1) by claiming that such a right implicitly suffuses liberal legal and political orders, or could be derived specifically (2) from the right to freedom of thought or (3) from the more general right to self-determination, as protected in the right to respect for private life pursuant to Article 8 ECHR and Article 17 ICCPR. The fourth route advances a moral argument for accommodating a right to mental self-determination within our systems of human rights. This route involves arguing, firstly, that we have moral reasons for thinking that states have a defeasible moral duty not to thwart people’s attempts to alter and exercise control over their own mental states, including with the aid of neuro- and other technologies. This route then makes a case for the desirability of enforcing this moral duty by accommodating a right to mental self-determination within our systems of human rights.
We shall unpack these routes in turn but, note, that only two of them specify how persons’ powers of mental self-determination might find concrete protection in human rights law – the routes that see the right to mental self-determination as either a derivative right of the right to respect for private life or a derivative right of the right to freedom of thought. In the discussion that follows, we work on the assumption that the rationales discussed are capable of supporting, either that a legal right to mental self-determination already exists, or that it can be accommodated in existing law. We assume this while acknowledging that some scholars have appealed to one or more of these rationales when defending a need to recognise a self-standing right to mental self-determination.Footnote 13
5.2.2 A Right to Mental Self-Determination as Implicit in Law
Turning now to the first rationale, the idea is that a right to mental self-determination is implicit in liberal legal and political orders. Bublitz makes this kind of argument, in a seminal paper co-authored with Merkel, and then again in later work.Footnote 14 Bublitz’s reasoning is as follows. His first claim is that liberal legal orders are premised on the idea that persons are freely-deciding beings and the principal authors of the preferences on which their decisions and actions are based. He justifies this claim by highlighting how the law holds people accountable for their actions and “antecedent mental states” as if they are freely deciding.Footnote 15 His second claim is that legal orders premised on the idea of freely deciding persons must legally protect persons’ powers of mental self-determination if they are to avoid “internal incoherences”.Footnote 16 The point is that a legal order that treats people as though they are freely deciding or mentally self-determining when they lack legal powers to be so would be an incoherent one. And insofar as our legal orders are not incoherent, Bublitz argues we must have legal powers in the form of a right to mental self-determination. Importantly, Bublitz emphasises, this is not a matter of our legal orders having to grant us a right to mental self-determination. Rather, our legal orders are simply “bound by reasons of inner consistency to (…) embrace” a right to mental self-determination,Footnote 17 owing to the fact that mental self-determination is “among the basic assumptions on which liberal legal orders are built”.Footnote 18
The idea that a right to mental self-determination is somehow implicit in the law is also suggested by Farahany,Footnote 19 Sententia,Footnote 20 and BoireFootnote 21 – though these authors do not appeal to reasons of internal consistency when making their claims. Instead, they appeal to the idea that a right to mental self-determination is necessary for the enjoyment of all other rights and freedoms the law protects. Farahany insists that:
a careful reading of the Universal Declaration of Human Rights (UDHR) suggests that an individual right to self-determination is a necessary precondition for all the individuals rights in enumerates, including the right to be equal in dignity (Article 1 of the UDHR); to be free from discrimination (Article 7); to privacy (Article 12); freedom of expression (Article 19); and the right to one’s own personality (Article 22, which secures to an “individual economic, social and cultural rights indispensable for his dignity and the free development of his personality”).Footnote 22
Farahany further claims that the importance of mental self-determination for the realisation of all of our other rights and freedoms has been noted by the U.S. Supreme Court, albeit not in these exact words. She points, for example, to the Supreme Court’s comment in Ashcroft v. Free Speech Coal., that “the right to think is the beginning of freedom”, and to their comment in Palko v. Connecticut that “freedom of thought (…) is the matrix, the indispensable condition, of nearly every other form of freedom”.Footnote 23 And she insists that the right to self-determination includes, among other things, a right to mental self-determination or “the right to choose how we will change our own brain and mental experiences”.Footnote 24
Farahany’s claim that mental self-determination is “essential to all other legal rights” and for “securing our most cherished freedoms” also surfaces in the work of Sententia and Boire.Footnote 25 Sententia describes a right to mental self-determination as “fundamental” and “the necessary substrate for just about every other freedom”.Footnote 26 Boire likewise pronounces mental self-determination as “the quintessence of freedom” – as something that must be afforded legal protection if notions of freedom, so central to our legal and political orders, are “to mean anything”.Footnote 27
These observations parallel a qualification made by the France representative René Cassin during the drafting of the Universal Declaration of Human Rights. Speaking about the right to freedom of thought specifically, Cassin suggested this right was “the basis and the origin of all other rights”.Footnote 28 The UN Special Rapporteur on Freedom of Religion or Belief likewise emphasised, in their recent report to the UN General Assembly, “the essentiality of ‘freedom of thought’ for the dignity, agency and existence of the human being”.Footnote 29 And while the protection of persons’ powers of mental self-determination may be broader than the protection of freedom of thought (as noted in section 5.2.3), conceptual affinities between freedom of thought and mental self-determination as we have defined it clearly exist. This renders the above comments relevant for a defence of the claim that a right to mental self-determination is implicit in law, owing to its importance for individual freedom.
5.2.3 A Right to Mental Self-Determination as Protected by the Right to Freedom of Thought
A second, though related, route by which we might defend the existence of persons’ right to mental self-determination is by seeing it as a derivative right of the right to freedom of thought pursuant to Article 18 ICCPR and Article 9 ECHR.Footnote 30
Although we acknowledge the relevance of the right to freedom of thought for the protection of mental self-determination, we do not focus on this particular way to carve out space for a right to mental self-determination for two reasons. First, because we think it more straightforward to understand persons’ right to mental self-determination as inherent in the more general right to self-determination (section 5.2.4). And second, because we do not wish to limit our analysis to the protection of self-determination over ‘thoughts’ alone. Rather, we are aiming to identify the contours of a more holistic right that may also apply to the self-determination of mental phenomena that are not plausibly covered by the right to freedom of thought, including feelings, behavioural control and empathic abilities – which are (also) potential targets of neurorehabilitation.Footnote 31
Furthermore, deriving a right to mental self-determination from the right to freedom of thought faces another complexity, as the latter is often considered to be an absolute right. However, it seems that if mental self-determination is to find protection within the law, then it should take the form of non-absolute protection. Bublitz and Merkel say something similar when defending a right to mental self-determination.Footnote 32 Accepting that the right to freedom of thought protects against “severe” interferences with contents of opinion, thinking processes and patterns of thought, they claim that “there ought to be another, presumably non-absolute right protecting the mind”.Footnote 33 Deriving a right to mental self-determination from the right to freedom of thought may render the right absolute, meaning that persons could never be legally prevented from altering or exerting control over their thoughts, including with the aid of neuro- and other technologies, under any circumstances. And affording mental self-determination this kind of legal protection seems to be too strong, while potentially giving rise to some counter-intuitive implications. It could mean, for instance, that states may never block a person’s access to mental self-determination-enhancing neurotechnologies, even when accessing such technologies risks occasioning great harm to that person and/or others.Footnote 34 This seems to be an undesirable implication, and hence provides another reason not to harness the right to freedom of thought as the vehicle by which to afford a right to mental self-determination concrete legal protection.
5.2.4 A Right to Mental Self-Determination as Protected by the Right to Privacy
A third way a right to mental self-determination might be defended involves arguing that such a right is derivable from – and hence protected by – the right to respect for private life, as enshrined in Article 17 ICCPR and Article 8 ECHR.Footnote 35 This possibility has been noted by Michalowski in her suggestion that “a prima facie right to use mind-changing tools (…) is an argument that can potentially be made under Article 8(1)” ECHR.Footnote 36 We expand on this possibility in the paragraphs that follow, first by drawing on the case law that interprets the relevant legal provisions as protecting a general right to self-determination. We then argue that persons’ right to self-determination contains or implies a right to mental self-determination. This line of argument finds support in some remarks made by the relevant treaty bodies.
The idea that persons’ right to respect for private life protects a general right to self-determination has received most attention in the European context. Recall that the ECtHR in Parillo/Italy explicitly recognised that the concept of “private life” within the meaning of Article 8 ECHR embraces a “right to self-determination”.Footnote 37 Relatedly, as indicated in previous chapters, the ECtHR’s case law on Article 8 ECHR interprets “private life” broadly, interpreting it as covering, for instance, the physical and psychological integrity of the person,Footnote 38 “multiple aspects of the person’s physical, social and ethnic identity”,Footnote 39 and persons’ freedom to lead a “private social life”.Footnote 40 The protection of private life under Article 8 ECHR has also been interpreted as implying a right to personal autonomy and personality development – two concepts that, as said, closely resemble self-determination as we have defined it. Personal autonomy, just like self-determination, “evokes the image of a person in charge of” and “part author” of their own lives – at least on one understanding of personal autonomy.Footnote 41 Personal or personality development is plausibly also a large component of what it means to self-determine the course of one’s life and to become the person one wants to be.
Some cases prior to Parillo/Italy made room for a right to self-determination by emphasising how a right to personality development is protected under Article 8 ECHR. In an early case of the European Commission of Human Rights (EComHR), the Commission, though rejecting the applicant’s claim that the freedom to keep a dog was protected under the “private life” of Article 8 ECHR, observed that “the right to respect for private life comprises, to a certain degree, the right to establish and to develop relationships with other human beings, especially in the emotional field for the development and the fulfilment of one’s own personality”.Footnote 42 This position was reiterated in Bruggermann and Scheuten/Federal Republic of Germany, where the Commission ruled that although not every state action that limits an “individual’s possibility of developing his personality (…) constitute[s] an interference with private life in the sense of Article 8 of the Convention”, Article 8 guarantees the individual “a sphere within which he can freely pursue the development and fulfilment of this personality”.Footnote 43 These early cases thus carved out a space for a right to self-determination by emphasising how private life encompasses personality development, at least to a certain degree.
Other cases of the ECtHR likewise made room for a right to self-determination by emphasising how personal autonomy is protected under Article 8 ECHR. In these cases, the ECtHR has gradually moved from talking about personal autonomy as merely an important notion or principle underlying the interpretation of Article 8 to talking about personal autonomy as a right of persons. The reference to personal autonomy in Pretty/the United Kingdom – a case concerning assisted suicide – is an example of the former.Footnote 44 Here, the Court asserted that while “no previous case has established as such any right to self-determination as being contained in Article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees”.Footnote 45 It is exactly this consideration to which the Grand Chamber referred in Parrillo/Italy when holding that a right to self-determination is covered by the right to respect for private life in Article 8 ECHR.Footnote 46
References to a right to personal autonomy then began in the case of M.C./Bulgaria – a case concerning the positive duties arising under Articles 3 and 8 ECHR with respect to effective legal protection against rape – when Judge Tulkens proclaimed that “rape infringes not only the right to personal integrity (…) but also the right to autonomy as a component of the right to respect for private life”.Footnote 47 Subsequent judgments of the ECtHR reaffirmed this relationship between the right to respect for private life and the right to personal autonomy.Footnote 48 For instance, the ECtHR in Evans/the United Kingdom observed that private life “encompass[es], inter alia, aspects of an individual’s physical and social identity, including the right to personal autonomy [and] personal development”.Footnote 49 At the same time, some other judgments of the Court specifically proposed a connection between the rights protected under Article 8 ECHR and persons’ self-determination.Footnote 50 For example, the ECtHR in Connors/the United Kingdom stipulated that Article 8 concerns, among other things, “rights of central importance to the individual’s identity [and] self-determination”.Footnote 51
Similar developments have happened internationally and in the inter-American context with regard to the interpretation of Article 17 ICCPR and Article 11 American Convention on Human Rights (ACHR). The Inter-American Court of Human Rights has identified a similar range of rights inherent in the protection of privacy (guaranteed by Article 11 ACHR), as have been identified as covered by the right to the respect of private life in the European context. To quote from the Inter-American Court’s espousal of the point in ArtaviaMurillo v. Costa Rica (a case concerning in-vitro fertilisation):
The protection of private life encompasses a series of factors associated with the dignity of the individual, including, for example, the ability to develop his or her own personality and aspirations, to determine his or her own identity and to define his or her own personal relationships (…) [It] encompasses aspects of physical and social identity, including the right to personal autonomy, personal development (…) The effective exercise of the right to private life is decisive for the possibility of exercising personal autonomy on the future course of relevant events for a person’s quality of life (…) and [it] is an essential condition for the free development of the personality.Footnote 52
The Inter-American Court elsewhere links the right to respect for private life to “a person’s right to self-determination and to freely choose the options and circumstances that give meaning to his or her existence, in accordance with his or her own choices and convictions”.Footnote 53 And the UN Human Rights Committee’s development of Article 17 ICCPR – while not specifically relying on the concepts of self-determination or personal autonomy – nonetheless suggests, in an opinion appended to the Committee’s views in Hertzberg et al./Finland, that the right to privacy pursuant to Article 17 ICCPR protects “the right to be different and live accordingly”.Footnote 54 This perhaps suggests a right to personal autonomy or self-determination. As Nowak/Schabas write in their commentary on Article 17 ICCPR, “privacy covers that area of individual autonomy in which human beings strive to achieve self-realization by way of actions that do not interfere with the liberty of others. This liberty of action inherent in private self-determination may be exercised alone or together with others”.Footnote 55
All of the above illustrates that the right to respect for private life – a right most extensively developed in the case law pertaining to Article 8 ECHR – has been interpreted as protecting a right to personal autonomy, self-determination or something similar to these concepts. Precisely what the right to self-determination amounts to – that is, its precise substance or the specific kinds of interests it covers – is still very much a matter of debate for the courts. Clearly, and to quote from Gross, “not every curtailment of autonomy is a compromise of privacy”.Footnote 56 We must therefore ascertain the kinds of incursions on autonomy or self-determination that could raise an issue under the right to respect for private life, before we can comment on whether the right to personal autonomy/self-determination implies a right to specifically mental self-determination.
Some remarks of the ECtHR prove instructive here. In particular, the observation that the right to self-determination protects the most “intimate” aspects of how we conduct our lives.Footnote 57 The idea that intimacy considerations demarcate just which exercises of personal autonomy or self-determination qualify for protection under the right to privacy is also espoused by a number of philosophical and legal scholars, and by the U.S. Supreme Court in its assessment of the U.S. Constitution’s protection of privacy. Both Gerety and Inness assert respectively that “intimacy is the chief restricting concept”Footnote 58 and “the common denominator”Footnote 59 of privacy. The U.S. Supreme Court likewise characterises privacy as an “interest in independence in making certain kinds of important decisions”Footnote 60 – those that deal with matters “involving the most intimate and personal choices a person may make in a lifetime”Footnote 61 which include “decisions relating to marriage (…); procreation (…); contraception (…); family relationships (…); and childrearing and education”.Footnote 62
Evidently, the kinds of matters that count as “the most intimate and personal” is still a further question, and the above comment of the U.S. Supreme Court – referencing marriage, procreation, family and so on – names but a few candidates. The ECtHR has clearly disqualified some acts from the category of intimate and personal. In the case of Friend and Countryside Alliance and others/the United Kingdom, for instance, it ruled that a ban on hunting “was too far removed from the personal autonomy of the applicants (…) for the hunting bans to amount to an interference with the rights under Article 8”.Footnote 63 This remained the case notwithstanding that the applicants derived “an obvious sense of enjoyment and public fulfilment” from participating in hunting.Footnote 64
Other activities have been suggested to be sufficiently personal or intimate as to qualify for protection under the right to self-determination. Activities and choices pertaining to bodily matters, for one, seem to have acquired such a status, so long as these activities and choices are (i) purely self-regarding and do not involve non-consensual bodily interference with others; and (ii) do not risk rights violations or human error and abuse, if protected in law. So, for instance, the ECtHR has observed that personal autonomy under Article 8 ECHR protects “the right to make choices about one’s own body” including choices pertaining to sexual relations which are among “the most intimate in the private sphere” – so long as the other parties involved in these sexual relations validly consent to them.Footnote 65
The ECtHR has likewise observed, in the case of Pretty/the United Kingdom, that the principle of personal autonomy enshrined in Article 8(1) ECHR includes a “right to make choices about one’s own body”.Footnote 66 It did this while also noting the caveat mentioned earlier: that an interference with the exercise of an Article 8 ECHR right could be compatible with Article 8(2) ECHR if (i) it is in accordance with the law, (ii) pursues a legitimate aim and (iii) is necessary in a democratic society for that aim.Footnote 67 The Court in Pretty considered whether a blanket ban on assisted suicide violated the applicant’s right to respect for private life. The conclusion was that, while the personal autonomy of the applicant was at stake in this case, the United Kingdom’s blanket ban on assisted suicide was not disproportionate to protect the rights and freedoms of others – and hence did not involve a violation of Article 8 ECHR – because “clear risks of abuse” would exist if such a provision were relaxed.Footnote 68 The upshot of this reasoning thus seems to be that bodily choices are protected under the right to respect for private life up to a certain point – so long as they do not violate or risk future violations of the rights and freedoms of others.Footnote 69
Further observations of the ECtHR go beyond characterising the intimacies of personal autonomy or self-determination solely in bodily terms. Some remarks indicate a broader understanding of these intimacies – as those choices and aspects of our lives where, to use Rubenfeld’s words, “our identity or self-definition is at stake”.Footnote 70 The ECtHR has observed that matters pertaining to the development and expression of one’s gender identity come under the ambit of private life and hence self-determination.Footnote 71 Decisions to take steps to become a genetic parentFootnote 72 or to endeavour to discover one’s genetic originsFootnote 73 also come under Article 8 ECHR’s ambit. Furthermore, the ECtHR held that a person’s “ability to exercise a conscious and considered choice regarding the fate of her embryos concerns an intimate aspect of her personal life and accordingly relates to her right to self-determination”.Footnote 74
Regardless of whether the right to self-determination is understood solely in terms of bodily autonomy, or in terms of self-authorship or identity-creation more generally, the prospects for deriving a right to mental self-determination from it seem promising. From one vantage, taking steps to exert control over what is in or on one’s mind is an exercise of bodily autonomy – or more precisely, it is an exercise of bodily autonomy insofar as we assume that the body (brain) and mind are intimately related. From another vantage, a person’s mental life seems as crucial to that person’s identity as something can get. The mind, just like the body, is often considered to be very closely linked to a person’s self. Bublitz and Merkel assert, for instance, that “what is even more constitutive of a subject than her body is her mind”.Footnote 75 And on some views of the nature of the self, the mind, or some portion of it, is the self. Descartes famously identified the mind with the self,Footnote 76 and indeed some physicalists, in identifying the mind with the brain, also see the mind/brain as akin to the self.Footnote 77
But even if the mind is not coextensive with the self, it is plausible that a certain, minimal degree of control over one’s mental life is necessary for a person to play some role in determining and developing their own personality, identity or self.Footnote 78 How, after all, could an individual make authentic choices about the kind of person they wish to be unless they possess at least some ability to exert control over their choices and the thoughts or mental states from which these choices stem? We can imagine a person who, for instance, due to severe mental illness or supreme environmental stressors,Footnote 79 cannot focus their mental states in the direction they wish, cannot reject or seek to divert their attention away from unwanted mental states, and cannot change their mental states even when this is something they desire. In this situation, it seems obvious that the relevant person cannot even partly author their own decisions at this point in time. Consider, more specifically, how a person who struggles to control their urge to lash out aggressively has less control or authorship over their personality, identity or life than they might otherwise have done, notwithstanding that they can still exert control over other aspects of their personality – for example, whether they are compassionate or generous.
The case law of the ECtHR does not specify a link between the development of personality or identity and mental self-determination. This Court does, however, link the development of personality to one’s mental life, or more precisely, to one’s mental stability. As indicated in Chapter 2, in their judgments in Bensaid/the United Kingdom and in Odièvre/France, the ECtHR stipulated that “the preservation of mental stability is (…) an indispensable precondition to effective enjoyment of the right to respect for private life” or the right to identity and personal development contained therein.Footnote 80 Granted, mental stability is not synonymous with mental self-determination (indeed, it is more suggestive of mental health).Footnote 81 But maintaining mental stability plausibly requires some degree of mental control or mental self-determination. Consider how reduced executive control or executive dysfunction is associated with certain mental health conditions.Footnote 82 Consider, too, how emotional control is often considered important for the maintenance of mental stability or mental health.Footnote 83
The above observations about the relationship between body and mind, mind and self, and mental stability and mental control, all indicate that there is scope to derive a right to mental self-determination from the already elaborated right to self-determination or personal autonomy. Moreover, the fact that the right to bodily autonomy has been observed (in at least one piece of case lawFootnote 84) to protect a person’s prerogative to use assisted reproduction technologies suggests that the right to mental self-determination could, likewise, be interpreted as protecting a prerogative to use mental control-enhancing neurotechnologies in certain circumstances.
It may be that the right to mental self-determination will not be interpreted as protecting this prerogative on occasions when (i) a country’s domestic law prohibits access to relevant technologies, and (ii) in the opinion of the relevant courts, allowing access to mental control-enhancing neurotechnologies creates a clear risk of abuse. Recall how the ECtHR emphasised in Pretty/the United Kingdom that interference with the exercise of an Article 8 ECHR right could be compatible with Article 8(2) ECHR if the interference is in accordance with domestic law and necessary and proportionate for fulfilling the aims laid out in Article 8(2).Footnote 85 Therefore, insofar as the two mentioned conditions are not fulfilled, a right to mental self-determination, inherent in the right to private life, could lend support to a rights-based claim to freely make use of self-enhancing neurotechnology.
5.2.5 A Moral Argument for a Right to Mental Self-Determination
A fourth way we might justify a right to mental self-determination is by demonstrating, first, that we have a pro tanto (i.e., defeasible) moral right to mental self-determination and, second, that it may be desirable to practically implement and enforce this right through law. As to the first of these claims, one of us has recently defended the related claim that we have a moral right to acquire control over our thoughts, with this putative right being understood as a pro tanto right that others not interfere with our attempts to acquire the wherewithal for such control, including by accessing psychological techniques or neurotechnologies.Footnote 86 The arguments harnessed to make this related claim can, we think, be repurposed as arguments for a pro tanto moral right to self-determination and we shall repurpose them accordingly here. Recall that we understand a right to mental self-determination as a right that others not interfere with our attempts to alter and exercise control over our thoughts including with the help of neurotechnologies, psychoactive drugs or psychological techniques. Consider then how this putative right is closely related to, but not wholly coextensive with, the putative moral right to acquire the wherewithal for mental control.
Whether we have a moral right to mental self-determination depends, at least in part, on whether we have an interest in being mentally self-determining. That we have such an interest seems plausible. Farahany claims we have such an interest when asserting that mental self-determination is “a fundamental interest essential to individual and social flourishing”Footnote 87 and that “respecting people’s right to self-determination (…) will (…) enable human flourishing”.Footnote 88 The credibility of this claim becomes evident, moreover, when we consider how the power to alter and exercise control over our thoughts likely has value for us on many prominent theories of well-being.Footnote 89
Mental state theories, for instance, consider mental self-determination to have instrumental value insofar as our mentally self-determining acts produce positive mental statesFootnote 90 – something that is at least sometimes likely, given that persons are typically motivated to achieve such states.Footnote 91 Desire-satisfaction or preferentist theories likewise attribute value to mental self-determination: this time insofar as, and to the extent that, having powers of mental self-determination is something we desire (non-instrumental value), and insofar as we exercise our powers of mental self-determination to produce mental states that we desire to have (instrumental value).Footnote 92 Lastly, objective list theories frequently assign non-instrumental value to self-determination more generally or to closely related powers such as autonomy.Footnote 93 Indeed, one particular objective list theory explicitly equates well-being with powers of self-determination.Footnote 94 And mental self-determination, as suggested in the previous section, can reasonably be considered a facet of self-determination more generally.
Our interest in having powers of mental self-determination is, however, not enough to justify our possessing a moral right to it. There are many things we have an interest in securing – for example, wealth and others’ esteem – to which we do not have a moral right, notwithstanding that our interest in having these things may sometimes be powerful. Thus, for persons to have a moral right to mental self-determination, it must also be the case that our interest in having mental self-determination is accompanied by some other justifying reason for the right – that is, by some reason that explains why third parties have a pro tanto duty to respect this particular interest, as against other interests of ours.
One candidate reason appeals to the idea that our mental life is “our business” or ours alone to control,Footnote 95 and motivates this idea by making an analogy with how we typically envisage our relationship with, and our powers over, our bodies. Douglas and Forsberg appeal to this analogy when arguing that one commonly advanced justification for a legal right to bodily integrity – namely, that our body is something over which we are “sovereign” just as states are sovereign over their territory – provides like support for a defeasible legal right to mental integrity.Footnote 96 They point to how the philosophical and legal literature is replete with claims that we have sovereignty over our bodies and hence have a presumptive right that others not interfere with our self-regarding bodily choices.Footnote 97 This idea is also prevalent in our folk intuitions and everyday practice. Think of how we typically judge that people should be afforded the freedom to obtain a facelift, a tattoo or a piercing from a willing expert if they so wish. Think, too, of how we usually consider a person’s reproductive and medical choices are theirs to make, at least presumptively.Footnote 98 Douglas and Forsberg suggest, then, that insofar as we accept we have a degree of sovereignty over our self-regarding bodily choices, justificatory consistency requires that we also accept we have like sovereignty over our minds. To quote from them directly:
Though discussions of (…) personal sovereignty more frequently draw out implications for the body than for the mind, it seems clear that appeals to self-ownership or personal sovereignty will also support rights over the mind, since the mind clearly also either is, is part of, or is closely connected to, the self. Indeed, most currently dominant accounts of the self give the mind a more central role than the body in the self.Footnote 99
Building on Douglas and Forsberg’s points, our argument here is that if we have a limited degree of sovereignty over our minds, we have a second reason for thinking that persons have a pro tanto moral duty to refrain from interfering with our acts of mental self-determination, aside from the interest-based reason advanced above. This second reason presents a route by which to justify just why our interest in mental self-determination is an interest that third parties are presumptively obliged to respect. Our preliminary case for a moral right to mental self-determination therefore rests on two claims: (1) the claim that we have a (presumably strong) interest in having powers of mental self-determination and (2) the claim that we are the legitimate sovereigns over our mind.
Arguing for a moral right to mental self-determination is all well and good, but as earlier indicated, our interest is in exploring how the putative moral right to mental self-determination might be harnessed in the service of defending a corresponding legal right. The existence of a moral right does not straightforwardly imply a legal right or the need to recognise one, even allowing that human rights in general are often thought to mirror underlying moral rights. For a moral right to merit practical implementation and enforcement in law, a further argumentative step is required – one that justifies why the law should be concerned about such a right.
One relevant reason that might be offered in the case of the right to mental self-determination appeals to the idea that a corresponding legal right is necessary because of the potentially increasing ease with which persons’ efforts at mental self-determination might be frustrated. Why think that persons’ efforts at mental self-determination might sometimes be readily frustrated, and in the future, perhaps more so? Well, because advances in pharmaceuticals, psychological techniques and neurotechnologies mean that persons increasingly have the possibility to make use of a wider range of external tools to aid their efforts at altering and controlling their mental states. These externalised acts of mental self-determination will invariably be easier to frustrate than “within-the-head-exercises” of mental self-determination. Many exercises of mental self-determination, after all, enjoy a level of “natural” protection by virtue of the fact that they take place in our brains, shielded from the outside world by the skull.Footnote 100 Our externalised efforts at mental self-determination do not enjoy this same kind of natural protection. If the state wishes to frustrate your efforts to alter your mental states with the aid of a good book, cognitive behavioural therapy, a psychedelic drug or a brain stimulation technique, it is simply a matter of denying you recourse, or frustrating your access, to these tools (perhaps sometimes through criminalisation),Footnote 101 rather than interfering with your existing brain states. And insofar as it is possible to frustrate access to these tools (which it clearly is), we have a candidate reason as to why the putative moral right to mental self-determination is something the law should be concerned about protecting. The ever-expanding range of tools at our disposal for facilitating mental self-determination arguably makes this concern even more exigent.
Saying that a moral right to mental self-determination exists and ought to be legally protected, however, is not the same as saying that we need to create a self-standing right to mental self-determination. Some scholars have argued for the need to recognise such a self-standing right.Footnote 102 But as earlier indicated, we are open to, and have defended, the possibility that a right to mental self-determination can be derived from the existing right to respect for private life as covered by, for example, Article 8 ECHR. Our invoking of a moral argument for a legal right to mental self-determination is therefore not intended to support calls for a new, self-standing right to mental self-determination. Rather, we are simply highlighting that there is (at least) one plausible moral argument that favours embracing and accommodating a legal right to mental self-determination, while allowing that this accommodation could be done in a variety of ways, including by seeing this right as a derivative right of the right to respect for private life.Footnote 103
5.3 A State Duty to Provide Neurorehabilitation?
Our discussion thus far has focused on three routes by which we might defend and carve out space for a right to mental self-determination. We must now consider whether this right grounds a state duty to offer or provide “mental self-determination-enabling” neurotechnologies to relevant convicted persons. Clearly, no understanding of such a duty has been articulated or developed in the relevant jurisprudence to date. Much remains open for interpretation. Moreover, on initial examination, one might surmise that persons’ right to respect for private life does not necessarily entail a state duty to provide neurotechnologies to any given population.
We say this because privacy rights are typically characterised in negative terms – a characterisation that is largely reiterated in the associated case law and general comments. Article 17 ICCPR refers only to persons’ right to legal protection from “arbitrary or unlawful interference” with their privacy.Footnote 104 The UN Human Rights Committee reiterates that “Article 17 [ICCPR] provides for the right of every person to be protected against arbitrary or unlawful interference with his privacy.”Footnote 105 The primarily negative character of the rights protected under Article 8 ECHR is also emphasised by the ECtHR. The ECtHR has stated that the primary object of Article 8 ECHR “is essentially that of protecting the individual against arbitrary interference by the public authorities”.Footnote 106 Indeed, in the case of Chapman/the United Kingdom, the ECtHR effectively denied that Article 8 ECHR grounds a state duty to provide measures that might help persons realise or enjoy the rights contained therein.Footnote 107 Referring to Article 8’s protection of the right to respect for home, the ECtHR in Chapman stated that “Article 8 does not (…) give a right to be provided with a home” and “whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision”.Footnote 108
Similar reasoning could thus be applied to the interpretation of Article 8 ECHR with regard to the (putative) right to mental self-determination. That is, the ECtHR could interpret the right to respect for private life pursuant to Article 8 ECHR as not entailing a state duty to fund or otherwise make available resources (including neurotechnologies) that enable mental self-determination. Similar interpretations could also be advanced by the UN Human Rights Committee with respect to the right to privacy enshrined in Article 17 ICCPR. And if persons’ right to mental self-determination were solely to find grounding in the right to respect for private life, and if the right to respect for private life were so interpreted, then this would mean that the right to mental self-determination fails to generate positive duties for states with respect to the provision of neurorehabilitation – an outcome that would undermine the relevance of the foregoing discussion.
Yet, this is not the end of the story. A state duty to fund or make available resources that enable mental self-determination arises under the right to privacy in certain circumstances. It is generally accepted in the legal literature, after all, that states have duties with respect to fulfilling human rights, at least to a degree – where “fulfil” denotes taking positive steps to help rights-bearers fully realise these rights.Footnote 109 There is also a robust body of ECtHR case law illustrating that the rights and freedoms enshrined in the ECHR, including Article 8 ECHR, produce a wide variety of positive obligations in certain circumstances.Footnote 110 We expand on these developments, and on their relevance for the case of neurorehabilitation, in the paragraphs that follow.
Consider first how states’ duties with respect to human rights contain or include a duty to “fulfil” these rights. This idea is advanced by the UN’s Committee on Economic Social and Cultural Rights (CESCR) in their comment that “all human rights impose (…) three types or levels of obligations on state parties: the obligations to respect, protect and fulfil”.Footnote 111 Expanding on what “fulfil” means, the CESCR states that
the obligation to fulfil can be disaggregated into the obligations to facilitate, promote and provide. The obligation to facilitate requires the State to take positive measures to assist individuals and communities to enjoy the right. The obligation to promote obliges the State party to take steps to ensure that there is appropriate education [with respect to the right in question]. state parties are also obliged to fulfil (provide) the right when individuals or groups are unable, for reasons beyond their control, to realise that right themselves by the means at their disposal.Footnote 112
Discharging these disaggregate obligations, moreover, requires that states “adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full realisation of the right”, the CESCR contends.Footnote 113
Now, clearly, given that these comments come from the CESCR, positive actions of this kind are required in the case of economic, social and cultural rights. Yet, the CESCR also invokes the idea that positive actions are (presumptively) required more widely – that is, in the case of civil and political rights – in its use of the phrase “all human rights”.Footnote 114 A number of scholars suggest that obligations of fulfilment apply to all human rights, too. For example, Scott and Macklem suggest that over the decades, “the United Nations has invested considerable energy in developing the idea of a multilayered obligations structure that may potentially be generated for any right whether it be a civil liberty or a social right”.Footnote 115 That all human rights imply (at least some) obligations of fulfilment thus indicates that the right to respect for private life could contain a duty to provide mental self-determination-enabling tools and technologies, at least in certain circumstances.
The ECtHR also recognises that positive obligations arise under the ECHR. The ECtHR’s comments in the case of Sengtes/the Netherlands are an illustrative example in this regard.Footnote 116 The applicant in this case suffered from a degenerative muscle disease and complained that the state’s denial of his request to be provided with a robotic arm constituted a breach of Article 8 ECHR, given that if provided with a robotic arm, his “severely curtailed level of self-determination would be increased”.Footnote 117 The Court observed in this case:
While the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life.Footnote 118
The ECtHR in Sengtes further observed that Article 8 ECHR may impose such positive obligations on the state when a “direct and immediate link” exists between the measures sought by an applicant and their private life.Footnote 119 The Court assumed the existence of such a link in Sengtes but nonetheless declared the complaint inadmissible because the Dutch state had provided the applicant with an electric wheelchair with an adapted joystick. The ECtHR further claimed that national authorities were best positioned to assess precisely which measures they could provide and allocate given “their familiarity with the demands made on the health care system as well as with the funds available”.Footnote 120 Still, this case illustrates that Article 8 ECHR sometimes entails a state duty to provide certain measures or resources when “the State’s failure to adopt [such] measures interferes with that individual’s right to personal development”.Footnote 121
Importantly, the ECtHR emphasises that “it is incumbent on the individual concerned to demonstrate the existence of a special link between the situation complained of and the particular needs of his or her private life”.Footnote 122 The ECtHR also notes that as far as positive obligations under Article 8 ECHR are concerned, what is required will vary from case to case owing to “the diversity of the practices followed and the situations obtaining in the Contracting States”.Footnote 123 Determining the content of Article 8’s positive obligations will depend on several factors, including “the importance of the interest at stake and whether ‘fundamental values’ or ‘essential aspects’ of private life are at stake”.Footnote 124 Another candidate factor – suggested by Feldman and perhaps relevant for the specific case of neurorehabilitation – is whether a particular aspect of a person’s private life impacts their “capacity to give effect to their moral choices” or to live their life “in accordance with [their] ethical standards”.Footnote 125
The relevance of these observations to the case of neurorehabilitation is clear. They highlight how states may have a (defeasible) duty under Article 8 ECHR to make mental control-enhancing neurotechnologies available to convicted persons, when these individuals have mental states that significantly limit their ability to live the kind of life that they want and/or one which accords with their moral precepts. Whether or how frequently such a limitation exists for those who might be candidates for neurorehabilitation is, of course, an empirical matter. We do not know how commonly the mental states of convicted persons prevent them from living the life that they want, nor how frequently state assistance in the form of neurorehabilitation might be necessary to help convicted persons give effect to their choices.
Nonetheless, it is reasonable to suppose that there are some convicted persons whose unwanted thoughts render it extremely difficult for them to think and act as they want. Some persons convicted of sexual crimes, for example, experience persistent and unwanted sexual urges that presumably make it difficult for them to live a crime-free life. Some convicted of violent crimes might also find that their sudden urge to lash out renders it difficult for them to live a life of their own choosing. In these situations, a failure to make neurorehabilitation available – as and when effective neurorehabilitation is available – may raise an issue under Article 8 ECHR. Additionally, if the state holds those who offend accountable for actions that stem from mental states over which they have little control and which prevent them from living the kind of life they want, then the case for providing access to relevant neurorehabilitation seems even stronger. Recall Bublitz’s point that legal orders premised on the idea of freely deciding persons must legally protect persons’ powers of mental self-determination if they are to avoid “internal incoherences” in holding people accountable for their actions.Footnote 126
5.4 Concluding Remarks
This chapter has examined the legal and moral rationales that seem to support a legal right to mental self-determination, including by accessing neurotechnologies. It further interrogated what the right to mental self-determination might imply for the neurorehabilitation of those who offend – specifically, whether it might imply a state duty to offer or provide neurorehabilitation in certain circumstances. We concluded that the right to mental self-determination – as a component of the right to respect for private life – may generate a duty on the part of states to offer or provide “mental self-determination-enabling” neurotechnologies in certain select circumstances. These circumstances are, we suggest, when there is a clear link between availing of these neurotechnologies and being able to live the kind of life that one chooses. More precisely, states may have an obligation if there are disruptive mental phenomena that hamper living a life free from crime and punishment. Such circumstances plausibly have relevance for at least some candidate cases of neurorehabilitation.
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