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

5.3 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

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:

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.

6.1 Introduction

As discussed in Chapter 1, the primary focus of this book is on the potential of neurotechnology to support the rehabilitation of convicted persons by improving risk assessment and risk management – rather than on its potential for diagnosing and treating mental or brain disorders. Still, in some cases, neurorehabilitation might well become conducive or even crucial to the improvement of mental health in forensic populations. Brain stimulation to attenuate aggressive impulses might serve to reduce the mental distress experienced by some persons subject to these impulses. Furthermore, aggression can be a symptom of a recognised mental illness, such as a psychotic disorder, or may be a core feature of a disorder, as in intermittent explosive disorder. Diminishing aggression using neurotechnology could in such cases be relevant to the person’s mental health, which appears to be an interest protected by human rights law. For example, Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises a “right to the highest attainable standard of physical and mental health”.

The right to health is sometimes referred to in discussions on human rights vis-à-vis emerging neurotechnologies. For example, Bublitz has highlighted the possibility of human rights comprising positive obligations to provide “access to therapeutic neurotechnologies restoring bodily or mental integrity”, which “may often overlap with the right to health (Article 12 ICESCR)”.Footnote ¹ Likewise, in a recent report on neurotechnology and human rights, the Advisory Committee of the Human Rights Council considers the implications of Article 12 ICESCR, holding that when “safe, effective, secure and human-rights compliant neurotechnology products do exist, access becomes a key element of the right to health. States should then grant access, without discrimination”.Footnote ²

In this chapter, we explore whether a right to health could produce an argument in favour of offering neurorehabilitation to some populations of convicted persons. Note, that throughout, we assume that health and the right to health, necessarily encompass mental health. Hence, we take the legal and ethical literature relating to health and the right to health to pertain to mental health. This assumption is not a controversial one. Even though mental health is sometimes overlooked as a component of health,Footnote ³ many contemporary attempts to define health encompass both physical and psychological elements.Footnote ⁴ For example, according to the preamble of the Constitution of the World Health Organisation (WHO): “Health is a state of complete physical, mental and social well-being.” The relevance of mental health is also stressed in the annual reports of the UN Special Rapporteur on the right to the highest attainable standard of health, emphasising that “there is no health without mental health”.Footnote ⁵ Hence, in what follows, we understand the right to mental health as a specified right inherent in the right to health.

When considering a right to mental health in the criminal justice context, it is important to realise that a high prevalence of mental illness has consistently been reported within prison populations – including psychosis, depression and personality disorders.Footnote ⁶ As Gable and Gostin write, “[i]n many countries around the world prisons have become the de facto mental health systems”.Footnote ⁷ Furthermore, factors related to psychiatric co-morbidity are among the risk factors for suicide attempts in prison.Footnote ⁸ Additionally, a considerable number of those who offend end up not in prison but in forensic psychiatric institutions. Clearly, these people also need to be taken into account to get an accurate picture of the relevance of mental illness to the criminal justice system.

Criminal justice is thus not just a setting relevant to the right to mental health, but rather one of the most important contexts to which the right applies.Footnote ⁹ Yet, the criminal justice system’s primary aim is not to treat the mental health issues of those who offend but rather to enact justice, typically by punishing those who offend (e.g., through imprisonment) and also by protecting society against the future harm these individuals may cause (e.g., by detaining them in prison or forensic psychiatric institutions). Mental health needs of those who offend are not the priority of criminal justice, or at least not the direct priority.Footnote ¹⁰ And this observation gives us reason to assume that the mental health needs of those who offend will not always be met within criminal justice settings and contexts. There is thus a strong need to consider the legal protection of the mental health of these individuals.

This chapter proceeds as follows. Section 6.2 considers the foundation of the right to mental health, both from a legal and a moral perspective. In section 6.3, we discuss different understandings of “mental health” in relation to the right’s scope, followed by an exploration of the right’s implications for the neurorehabilitation of convicted persons in section 6.4. In section 6.5 we draw conclusions.

6.2 Legal and Moral Bases of a Right to Mental Health

6.3 What Is Mental Health? Considering the Scope of a Right to Mental Health

What precisely is covered by the concept of “mental health”? At least on a folk understanding, the “mental” of mental health is typically understood to pertain to the emotional and/or psychological realm – that is, to a person’s thinking, inclinations and feelings, which are often reflected in behaviour or behavioural patterns. That said, a clear-cut distinction between mental and physical health is difficult to draw: often both are connected. Many health conditions involve mental and physical symptoms and can have both mental and physical causes. Consider how a patient with hyperthyroidism may have osteoporosis and cardiac arrythmias as well as anxiety as symptoms.Footnote ⁴⁷ Consider, too, how mental or psychological factors such as stress may increase a person’s susceptibility to physical illnessFootnote ⁴⁸ and how genetic factors may increase a person’s likelihood of developing a mental disorder.Footnote ⁴⁹ In fact, a considerable part of the research on mental health has been biological (brain-oriented) in nature.Footnote ⁵⁰ When talking about mental health, in this chapter, therefore, we work on the assumption that the reference to “mental” concerns emotional and psychological matters, while acknowledging that there are overlaps, and no clear cut-off point, between mental and physical health.

What, then, is mental health? We consider this question below, first, from a conceptual perspective, followed by the approach in human rights law.

6.4 A State Duty to Provide Neurorehabilitation?

In the remainder of this chapter, we assume a positive conceptualisation of mental health akin to that found in human rights law, including the protection of well-being and the reduction of dangerousness. Let us also assume that at least some neurointerventions will contribute to a convicted person’s mental health on this positive conceptualisation. Given these assumptions, when might the right to mental health successfully be invoked by a convicted person to support their being provided with safe and effective neurorehabilitation?

There are perhaps two kinds of situations where the right to mental health could successfully be invoked, at least in theory. The first is when access to affordable, accepted and generally available neurointerventions is necessary for preserving and/or restoring a reasonable standard of mental health. The second is when access to affordable, accepted and generally available neurointerventions makes preserving a reasonable standard of mental health substantially easier than an approach that eschews neurorehabilitation.

Four things to note about our reference to “affordable”, “accepted”, “generally available” and “reasonable standard”. First, for there to be any chance of someone successfully invoking the right to mental health to make a claim to receive neurorehabilitation, it must be the case that neurorehabilitation is not too costly. Recall our earlier highlighting of how the right to health of Article 12 ICESCR, including mental health, is subject to a progressive realisation standard such that the precise healthcare provision required of states depends at least in part on their available resources. Consider, too, that all “positive” rights – that is, rights that require state provision of goods, services etc. – will necessarily be limited by resource considerations, at least to some extent. Regarding the ECHR, Leijten observes that the ECtHR leaves room for making choices, in view of the available recourses, regarding which and to whom care is provided, as long as an adequate standard of care is generally met. When an omission in providing certain health care is not in conflict with domestic procedural rules or requirements, “a complaint about expensive or unauthorized medication seems unlikely to be successful.”Footnote ⁸⁰ Neurorehabilitation will thus have to be reasonably affordable if an argument for its provision from the right to mental health is to get off the ground. Whether or not it will be is an empirical matter, and the answer is yet unclear. On the one hand, neurotechnological interventions are currently expensive.Footnote ⁸¹ However, they may in the future turn out to be more cost-effective than some alternatives – perhaps when compared to the cost of delivering long-term (unsuccessful) psychotherapies within a prison or other detention setting.Footnote ⁸²

Secondly, the reference to “accepted” denotes “scientifically accepted” or “scientifically proven” interventions. It seems clear that the ECtHR and the CESCR have little appetite for an interpretation of the right to health that includes a right to access “experimental” treatments. The ECtHR ruled in the case of Hristozov and Others/Bulgaria that there was no violation of Articles 2, 3 and 8 ECHR in refusing to allow the applicants access to an unauthorised experimental cancer treatment – even though conventional treatments for cancer had been exhausted.Footnote ⁸³ Elsewhere, the ECtHR rejected an applicant’s claim to access an unproven, experimental therapy for degenerative cerebral illness, declaring the application inadmissible under Articles 8 and 14, at least in part because “the therapeutic value of the [therapy in question] had, to date, not yet been proven scientifically”.Footnote ⁸⁴ Similar patterns can be observed at the international level, where Article 12 ICESCR implies that health facilities, goods and services must be “scientifically and medically appropriate and of good quality”.Footnote ⁸⁵

The third thing to note is our reference to “generally available” interventions. It seems that success in invoking the right to mental health to support access to neurorehabilitation can only occur when the relevant neurointerventions are also available to the wider populace and when their provision does not conflict with a given jurisdiction’s domestic law. Jurisprudence related to the right to health seems to illustrate this. Consider how the ECtHR found a breach of Article 3 ECHR when a given applicant was not provided with reproductive diagnostic services – and hence deprived of the opportunity to make a decision to have a legal abortion (should the results have satisfied the conditions for permissible abortion) – when the “services which she had requested were at all times available and that she was entitled as a matter if domestic law to avail herself of them”.Footnote ⁸⁶ Consider, alternatively, how the ECtHR denied a breach of Article 3 ECHR in a different case: when the requested treatment – in this case medicinal cannabis – was not legally permitted in the relevant jurisdiction.Footnote ⁸⁷

The relevance of existing domestic practices for successful invocation of the right to health is also evident in the EU Charter of Fundamental Rights’ (CFR) reference to “the right to benefit from medical treatment under the conditions established by national laws and practices” (Article 35 CFR). It is further evident in the ECtHR’s observation about incarcerated persons specifically: that they are entitled to health treatment, “at a level comparable to that which the State authorities have committed themselves to provide to the population as a whole”.Footnote ⁸⁸ Moving to the international context, the CESCR’s reference to the necessity of “health facilities, goods and services [being] accessible to everyone without discrimination, within the jurisdiction of the State party”, in its discussion of Article 12 ICESCR, suggests a similar line of reasoning.Footnote ⁸⁹ Indeed, the CESCR specifically references “vulnerable or marginalised sections of the population”,Footnote ⁹⁰ which plausibly includes those who are incarcerated.Footnote ⁹¹ The CESCR indicates that vulnerable or marginalised groups should not be deprived of access to health services that are enjoyed by other sections of the population, emphasising that access is “especially” important in situations of vulnerability.Footnote ⁹² For access to neurorehabilitation to come under the remit of the right to mental health, then, it seems that the relevant technology – such as tDCS, TMS or DBS – must be legally available and more generally accessible, within a given jurisdiction. At present, TMS and DBS are FDA-approved and available in health care for the treatment of different mental disorders.Footnote ⁹³

Note, fourthly, that our reference to “reasonable standard” is included so as to take the “progressive realisation” caveat on the right to health into account. Invoking the right to mental health to support a claim to neurorehabilitation is unlikely to be successful unless the affected applicant’s mental health is judged to be lower than a minimally adequate standard, notwithstanding that Article 12 ICESCR stresses health optimisation. In practice, if the applicant’s mental health is deemed minimally adequate (even if still not excellent), the fact that the right is subject to progressive realisation may preclude the possibility of a rights claim successfully being invoked.

Returning now to the two kinds of situations where (we think) the right to mental health might support a claim to neurorehabilitation, the first is where affordable, accepted and available neurorehabilitation is necessary for realising a reasonable standard of mental health. Clearly, human rights treaties do not provide for a right to all and every treatment option in cases of poor mental health. Within the context of Article 5(1) ECHR, the ECtHR “affords the authorities a certain latitude with regard both to the form and the content of the therapeutic care or of the medical programme” to be adopted, and hence does not guarantee access to any particular treatment.Footnote ⁹⁴ But when neurorehabilitation is the only remaining option for realising mental health – let’s say alternative measures have been exhausted and either mental disorder, poor emotional or social well-being, or a risk of dangerousness remains – then a case for access to neurorehabilitation could reasonably be mounted. Denying a person the only remaining treatment that might alleviate their mental distress intuitively seems to be cruel and inhumane. The ECtHR has elsewhere judged that the denial of specific and necessary health care violates Article 3 ECHR on some occasions – for example, denying an incarcerated person dentures when they lack teeth,Footnote ⁹⁵ denying pain-relief for chronic back painFootnote ⁹⁶ or denying a detainee glasses when their eyesight is defective.Footnote ⁹⁷ Furthermore, in Murray/the Netherlands, the Court found a violation of Article 3 ECHR because the absence of psychiatric treatment hampered the person’s real opportunity to rehabilitate and, one day, to regain his freedom.Footnote ⁹⁸

The CESCR likewise emphasises the importance of providing people with “essential” treatment,Footnote ⁹⁹ which surely includes essential treatment for managing mental health, and which may in the future at least sometimes include neurorehabilitation. This observation provides legislators with a moral reason for interpreting the relevant human rights provisions as extending to neurorehabilitation in at least some instances.

What, then, about our second situation? The situation where incorporating neurorehabilitation will make preserving mental health substantially easier for a given person. Here we suggest it may also sometimes be possible to successfully appeal to the right to mental health. Making it such that those who are incarcerated must struggle with their mental health issues – as against having access to more efficacious therapeutic assistance – also appears inhumane, and thus may raise an issue under Article 3 ECHR. Recently, the ECtHR judged that a detainee was treated inhumanely, in violation of Article 3 ECHR, when he was denied opioid-substitution therapy to manage his long-term drug addictionFootnote ¹⁰⁰ – a therapy often considered to make recovery from addiction more effective and easier.Footnote ¹⁰¹ Similar reasoning could be invoked with respect to relevant neurotechnologies in the future, as and when their use helps to make it easier to realise a reasonable standard of mental health.

Also pertinent to this second situation is the right to participate in and enjoy the benefits of scientific progress and its applications, pursuant to Article 15(1) ICESCR.Footnote ¹⁰² The General Comment to this right emphasises a link with the right to health. Among other things, state parties “have a duty to make available and accessible to all persons, without discrimination, especially to the most vulnerable, all the best available applications of scientific progress necessary to enjoy the highest attainable standard of health”.Footnote ¹⁰³ It thus appears that, even when neurorehabilitation is not strictly necessary for ameliorating poor mental health, there may be reason to claim that denying persons (more effective) neurorehabilitation means denying them access to these “best available applications”.

As a final comment on this second situation, affording persons access to neurorehabilitation that might ease their realisation of mental health, seems especially likely to lend itself to rights claims when persons’ liberty is restricted. Existing jurisprudence and associated literature pay particular attention to the mental health needs of those who have been detained. As Riedel observes, since the year 2000, the CESCR regularly addresses problems of prison conditions, including access to external specialist treatments, special healthcare provision for persons with disabilities and mental health issues among incarcerated persons.Footnote ¹⁰⁴ In 2018, the Special Rapporteur on the right to the highest attainable standard of health devoted the entire annual report to the right to health vis-à-vis the deprivation of liberty. There, it was noted that “actual and de facto deprivation of liberty” itself has negative effects on mental health,Footnote ¹⁰⁵ and consequently, that extra care needs to be taken to ensure adequate access to mental health services, goods and facilities in closed settings.Footnote ¹⁰⁶

In the European context, the ECtHR, too, devotes particular attention to the mental health situation of incarcerated persons, who “are in a vulnerable position and the authorities are under a duty to protect”.Footnote ¹⁰⁷ The ECtHR recognises that “detainees with mental disorders are more vulnerable than ordinary detainees, and that certain requirements of prison life pose a greater risk that their health will suffer, exacerbating the risk that they suffer from a feeling of inferiority, and are necessarily a source of stress and anxiety”.Footnote ¹⁰⁸ This calls for increased vigilance in assessing whether the detention of mentally ill persons complies with Article 3 ECHR. In that regard, the Grand Chamber finds it insufficient for such detainees to be merely examined and diagnosed. Rather, “it is essential that proper treatment for the problem diagnosed and suitable medical supervision should also be provided”.Footnote ¹⁰⁹

The fact that the particularly exigent challenges to mental health within closed settings is recognised may thus make the case for affording incarcerated persons access to neurorehabilitation easier to make.Footnote ¹¹⁰ And perhaps, for some populations of incarcerated persons – that is, those sentenced to preventive detention – the case may be even stronger. Consider how, at the European level, when reviewing the lawfulness of detention under Article 5(1) ECHR, the ECtHR attaches “increasing weight to the need to provide appropriate treatment to persons who have been deprived of their liberty for the purpose of relieving their illness or reducing their dangerousness”.Footnote ¹¹¹ The ECtHR has noted that an individualised and specialised programme should be adopted, taking account of the specific details of the incarcerated persons’ mental health with a view to preparing them for possible future reintegration into society.Footnote ¹¹² Preventive detention may become unlawful according to Article 5(1) sub e ECHR, when a person

Article 5 ECHR thus could provide an additional route by which mental health-improving neurorehabilitation could be demanded by some subpopulations of incarcerated persons, alongside Article 3 ECHR.

Having said all this, the prospects for an applicant to successfully invoke the right to mental health (or associated health-related rights) to support a claim to neurorehabilitation are slim for the near future. One big obstacle is that many jurisdictions have not accepted the individual complaints procedure of the Optional Protocol to the ICESCR and do not have a legally established right to health within their domestic law. International treaties on their own have weak enforcement mechanisms. The health provisions of domestic law are also judged to be important and are afforded deference within these very treaties. Recall the EU Charter of Fundamental Rights’ qualification that the right to benefit from medical treatment is a right “under the conditions established by national laws and practices” (Article 35 CFR). Recall too how the ECtHR has sometimes judged that refusal of a specific treatment does not violate the right to health when the treatment in question is banned in the relevant jurisdiction.Footnote ¹¹⁴

And even if the prospects for successful invocation are somewhat stronger in the case of incarcerated persons who experience poor mental health, success will still be difficult. Notwithstanding their emphasis on non-discrimination with respect to health treatment, the ECtHR has also emphasised that this “comparable” treatment does “not mean that every detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities”.Footnote ¹¹⁵ The ECtHR acknowledges and accepts that the resources of medical facilities within the penitentiary system are, in principle, limited compared to those of civil clinics.Footnote ¹¹⁶ Furthermore, the ECtHR stresses that “Article 3 cannot be interpreted as requiring a prisoner’s every wish and preference regarding medical treatment to be accommodated (…) the practical demands of legitimate detention may impose restrictions a prisoner will have to accept.”Footnote ¹¹⁷ Against this background, it seems difficult even for incarcerated persons to successfully invoke Article 3 ECHR to demand the provision of a specific neurotechnology that should contribute to their mental health. This, of course, may change in the further future, as and when neurorehabilitation becomes more affordable and more generally available.

The right to mental health may also contribute to the shaping of general policies within which context other rights, such as the right to self-determination and rehabilitation (supra Chapter 5 resp. infra Chapter 7), might provide a more forceful argument in favour of making certain neurointerventions available to some populations of convicted persons.Footnote ¹¹⁸

6.5 Concluding Remarks

The right to mental health has a solid basis in human rights law and can be supported by different moral justifications. Meanwhile, the right’s scope depends, at least in part, on how we understand “mental health” in this context. Both the ICESCR and the ECHR appear to have a broader understanding of mental health than the mere absence of a recognised mental disorder. How much broader remains unclear. Still, it is plausible that, under Article 12 ICESCR, mental health includes “good emotional and social well-being”. In addition, the case law of the ECtHR indicates a link between mental health, well-being and medical treatment for reducing a person’s dangerousness. Neurotechnology has the potential to contribute to mental health so defined. And the possibilities and potential of neurotechnology vis-à-vis mental health may be particularly important in the case of incarcerated persons, given that the prevailing human rights perspective is that the mental health of those who are incarcerated should receive special attention.

Given this solid basis for a right to mental health, it seems that the right could theoretically be invoked to support the provision by the state of neurorehabilitation in certain circumstances. We distinguished between two kinds of situations. The first is when access to safe, affordable, accepted and generally available neurointerventions are necessary for preserving and/or restoring a reasonable standard of mental health – that is, when alternative measures on their own are, or would be, insufficient. The second is when access to safe, affordable, accepted and generally available neurointerventions would make preserving a reasonable standard of mental health substantially easier than an approach that eschews neurorehabilitation.

Nevertheless, successful appeal to the right to mental health (together with the right to science) in order to be provided with a specific neurointervention seems practically unlikely in the near future for various reasons – in particular because of the leeway typically allowed for by socio-economic rights. Meanwhile, the right to mental health (and associated health-related rights) could contribute to establishing general policies that would support making certain neurointerventions available at a population level as well as to some subpopulations of convicted persons.

7.1 Introduction

States are increasingly thought to have a duty to enable convicted persons’ rehabilitation, with some seeing this duty as grounded in convicted persons’ right to rehabilitation. This rights-based argument for rehabilitation emerged alongside the increase in rights litigation for carceral populations within the United States in the 1970s,Footnote ¹ and the contemporaneous development of the idea of imprisoned persons as “Rechtsburgers” or rights bearers in Europe.Footnote ²

Admittedly, legal recognition of a right to rehabilitation is not universal. Many countries present rehabilitation as a “guiding concept” rather than a right that can be enforced against the state.Footnote ³ The United States had also considered it necessary to re-emphasise the importance its criminal justice system attaches to the goals of retribution, deterrence and incapacitation, following their ratification of the International Covenant on Civil and Political Rights (ICCPR) – which highlights the need for rehabilitative treatment within prison settings in Article 10 ICCPR.Footnote ⁴

Still, even if rehabilitation’s status as a legal right is not universally accepted, there is a trend within penal policy and prison law (particularly within Europe) towards a human-rights-based argument for rehabilitation.Footnote ⁵ This behoves us to ask what, if anything, this argument might imply for the use of neurotechnologies in criminal justice – specifically for those technologies that promise to reduce offending persons’ risk of recidivism and otherwise facilitate their rehabilitation and reintegration into society.

In this chapter, we take up this question. We examine the existing law and jurisprudence surrounding rehabilitation (section 7.2), present the rationales that have been (or may be) advanced in support of a right to rehabilitation (section 7.3) and analyse what these judgements and arguments imply for the case of neurorehabilitation (section 7.4). Throughout, we understand the right to rehabilitation as the right to have access to rehabilitative interventions that can be expected to facilitate desistance from crime and rehabilitation more generally.Footnote ⁶ We recognise that “rehabilitation” also refers to the psychological process that renders a person no longer disposed to engage in crime. But when speaking of a right to rehabilitation, we are not alluding to a right to become rehabilitated but rather to a right to (various forms of) means aimed at enabling convicted persons to become rehabilitated. This aligns with the European position on state duties with respect to rehabilitation. The ECtHR makes it clear that the obligation to offer rehabilitation is “an obligation of means, not one of result”, and that actual rehabilitation is the personal responsibility of convicted persons themselves.Footnote ⁷

We also understand the right to rehabilitation as a (waivable) claim-right, as opposed to merely a permission or freedom to make use of rehabilitative interventions. We are examining whether and when rehabilitation is something that convicted persons may claim, and hence whether and when states have a duty to make rehabilitation – and neurorehabilitation – available to convicted persons.

Rehabilitative interventions, on our understanding (and as indicated in Chapter 1), are also those interventions that better enable persons to desist from future offending, to (re)integrate into the community and to lead fulfilling lives, but which do not produce these effects by making crime physically impossible or by merely disincentivising the potential perpetrator from committing crime.Footnote ⁸ Such an understanding allows that a broad range of interventions fall under the umbrella of rehabilitation – for example, psychotherapeutic, educational, vocational, social and restorative justice interventions that promise to promote the aforementioned outcomes.Footnote ⁹ But it distinguishes rehabilitative interventions from interventions that merely incapacitate or deter. This leaves room for the possibility that some neurotechnologies will not count as rehabilitative interventions.Footnote ¹⁰ Our analysis of the right to rehabilitation in this chapter only pertains to those interventions and neurotechnologies that can be classed as rehabilitative.

As in other chapters, our concern is whether the right at hand exists in law or ought to be embraced by the law and, if so, what this might mean for neurorehabilitation in criminal justice. We are thus examining whether there ought to be a legal right to rehabilitation, but we appeal to both legal and moral rationales for such a right.Footnote ¹¹ We consider both how a right to rehabilitation might be derived from existing legal rights and also how it might be supported by moral rights as yet unrecognised in the law.

7.2 Obligation to Enable Rehabilitation in Human Rights Law

Several international and European human rights instruments generate a mandatory requirement on the part of states to provide what has been described as “real opportunity” for rehabilitation.Footnote ¹² These instruments do not couch this requirement in the language of rights; nor do all relevant instruments converge on the view that this requirement necessarily implies a right to rehabilitative interventions. The ICCPR gestures towards a requirement to deliver rehabilitation within prison settings when stating that “the penitentiary system shall comprise treatment of prisoners, the essential aim of which shall be their reformation and social rehabilitation” (Article 10(3)).Footnote ¹³ The Human Rights Committee (CCPR) uses similar mandatory language when stating that “penitentiary system[s] (…) should essentially seek the reformation and social rehabilitation of the prisoner”.Footnote ¹⁴ This includes “teaching, (re)education, vocational guidance, work programmes”.Footnote ¹⁵

Within Europe, some hesitancy to endorse a right to rehabilitative interventions is observable.Footnote ¹⁶ The European Convention on Human Rights (ECHR) does not explicitly mention rehabilitation, nor guarantee a broad obligation to provide rehabilitative interventions to those who have offended. An imperative to enable the (psychological) process of rehabilitation is, however, articulated in a number of (non-binding) legal instruments to which the European Court of Human Rights (ECtHR) attaches importance.Footnote ¹⁷ For example, Rule 6 of the European Prison Rules stipulates that “all detention shall be managed so as to facilitate the reintegration into free society of persons deprived of their liberty”. Rule 33.3 of this same document further states that “all prisoners shall have the benefit of arrangements designed to assist them in returning to free society after release”. Rule 102.1 relatedly states that prison regimes “shall be designed to enable [prisoners] to lead a responsible and crime-free life”.Footnote ¹⁸

The ECtHR also identifies an imperative to enable the psychological process of rehabilitation, with reference to Article 3 ECHR. Four key cases are Vinter and Others/the United Kingdom,Footnote ¹⁹ Harakchiev and Tolumov/Bulgaria,Footnote ²⁰ Khoroshenko/Russia,Footnote ²¹ and Murray/the Netherlands,Footnote ²² each of which focus either primarily or exclusively on the situation of life-sentenced persons. In Vinter, the Grand Chamber concluded that

The Grand Chamber in Harackchiev and Tolumov/Bulgaria, referencing Vinter, reinforced this conclusion, stating:

The “general evolution in European penal policy towards (…) the rehabilitative aim of imprisonment, particularly towards the end of a long prison sentence” was noted in Khoroshenko/Russia.Footnote ²⁵ The Grand Chamber in this case also emphasised that “rehabilitation and reintegration has become a mandatory factor that the member states need to take into account in designing their penal policies”.Footnote ²⁶ The Grand Chamber case of Murray/the Netherlands moved to characterise states’ obligations with respect to rehabilitation as positive ones, stating that states have “a positive obligation to secure prison regimes to life prisoners which are compatible with the aim of rehabilitation”.Footnote ²⁷

Precisely which kinds of “positive obligations” are required in order to afford convicted persons a “real opportunity” for rehabilitation is still open for debate. The precise meaning, scope and practical implications of the imperative to enable rehabilitation remain deliberately, and perhaps necessarily, vague. Meijer interprets the Murray reference to “positive obligations” as indicating that states are bound to “abide by certain standards” and to ensure “a minimum level of protection” with respect to person’s prospects of rehabilitating themselves.Footnote ²⁸ More specifically, she argues that, in recognising this positive obligation, the ECtHR “makes the provision of rehabilitative activities legally enforceable, which allows courts to intervene in the case of administrative reluctance”.Footnote ²⁹

Yet, it is not clear that the ECHR imposes a duty on states to provide rehabilitative interventions as against other measures that might enable, or uphold persons’ opportunity for, rehabilitation – such as shorter prison sentences, good conditions of detention or regular family visits while imprisoned. More precisely, it is not obvious that the duty to enable rehabilitation guarantees convicted persons a right to demand access to rehabilitation across the board and in all cases. For one thing, and as said, the case law referencing rehabilitation focuses on the situation of imprisoned persons and particularly those serving life sentences. The Grand Chamber in Harackchiev and Tolumov/Bulgaria, moreover, effectively denied that the ECHR guarantees a right to rehabilitative interventions in observing that

Perhaps, then, the more accurate conclusion to draw is that the ECHR implicitly recognises imprisoned persons’ right to have their rehabilitation enabled by the state, and that this sometimes implies a right to be provided with rehabilitative interventions. The Grand Chamber in Murray allows that providing a “real opportunity” for rehabilitation might sometimes require that convicted persons “be enabled to undergo treatments or therapies – be they medical, psychological or psychiatric – adapted to their situation with a view to facilitating their rehabilitation”.Footnote ³¹ It also allows that it might require affording convicted persons the opportunity to “take part in occupational or other activities where these may be considered to benefit rehabilitation”.Footnote ³² But the reluctance of the ECtHR to endorse a right to rehabilitation across the board indicates that the provision of rehabilitative interventions will not always be necessary to preserve real opportunity for rehabilitation, in the Court’s eyes. Sometimes, perhaps, simply ensuring that punishment is not excessive, that the conditions of detention are humane and that persons’ social and other basic needs are met will be sufficient to preserve opportunity for rehabilitation. Consider a situation where the relevant party is already motivated, and has sufficient individual and familial resources and skills, to effect their own rehabilitation without state assistance.Footnote ³³

7.3 Rationales for a Right to Rehabilitation

Working on the understanding, then, that the imperative to enable rehabilitation at least sometimes implies a right to rehabilitation (i.e., to rehabilitative interventions), we shall now examine the moral and legal rationales lending support to a right to rehabilitation in certain circumstances. These rationales will bring us closer to elucidating the kinds of situations where a right to “real opportunity” for rehabilitation might imply a right to rehabilitation.

Our analysis focuses on two rationales that have (or which are extensions of arguments that have) been advanced in the philosophical and legal literature. The first (legal) rationale sees persons’ right to rehabilitation as deriving from the established human right against cruel, inhuman and/or degrading punishment enshrined in Article 3 ECHR and Article 7 ICCPR (which closely relates to Article 10 ICCPR).Footnote ³⁴ The second (moral) rationale is more aspirational, in that it argues that a right to rehabilitation is contained in an (as yet unrecognised) human right to social contribution.Footnote ³⁵

There may well be other rationales too. A right to rehabilitation might, for instance, also derive from or be supported by the established human right to liberty (Article 5 ECHR and Article 9 ICCPR), such that imprisoned persons subject to long or indeterminate sentences have a right to rehabilitation.Footnote ³⁶ A right to rehabilitation might further derive from persons’ putative moral right to reparation for structural injustice, such that convicted persons whose crimes emanate at least in part from institutionally created poverty or concentrated disadvantage have a right to rehabilitation as a means of reparation for these injustices.Footnote ³⁷ But for our present analysis, we focus on the two abovementioned rationales.

We focus on these two rationales for a number of reasons. One reason for focusing on the relationship between the right against cruel punishment and rehabilitation is that the jurisprudence invoking this relationship is reasonably extensive, and more extensive than the jurisprudence on the implications of the right to liberty for rehabilitation.Footnote ³⁸ The right to liberty also likely generates support for a right to rehabilitation in the same kinds of situations as those in which the right against cruel and inhuman punishment provides support.Footnote ³⁹ Focusing on just one of these established human rights thus prevents our analysis from being too repetitive, notwithstanding that a forceful argument for a right to rehabilitation could potentially also be made from the right to liberty. One reason for focusing on the implications of the putative human right to social contribution for rehabilitation is that the principal defender of the former right, Kimberley Brownlee, gestures towards this right’s implications for criminal justice.Footnote ⁴⁰ A focus on social contribution is also prudent because of the growing emphasis on human sociality, and its relevance for rights, in the philosophical literature on human rights.Footnote ⁴¹

7.4 A State Duty to Provide Neurorehabilitation?

We shall now assess what these two candidate justifications for a right to rehabilitation imply for the specific case of neurorehabilitation. More precisely, we ask whether the right against cruel and degrading punishment and/or the putative right to social contribution imply a right to have access to safe and effective neurorehabilitation, at least in certain circumstances and provided that the intervention in question does not violate (other) human rights.Footnote ¹¹¹

Consider first the prohibition against cruel and/or degrading punishment. How might this support a right to neurorehabilitation? We suggest that the right against cruel punishment implies a defeasible right to neurorehabilitation when either (a) neurorehabilitation would counter the degenerative effects of punishment more effectively than conventional rehabilitation would do alone; or (b) when neurorehabilitation is necessary to make the achievement of rehabilitation and eligibility for release reasonably achievable.Footnote ¹¹² In suggesting this, we assume the prohibition against cruel and/or degrading punishment – insofar as it implies a right to rehabilitation – further implies a right to an effective package of interventions for offsetting punishment’s degenerative effects or for preserving genuine prospect for release. Such a view seems to be accepted when it comes to offering traditional forms of rehabilitation: while convicted persons do not have a right to all and every rehabilitative intervention, insofar as they have a right to rehabilitative interventions, this right is to effective interventions from among the reasonably affordable alternatives.Footnote ¹¹³

Whether neurorehabilitation will in the future be part of an effective approach is again an empirical question. However, it is reasonable to postulate that in some cases it might be. For one thing, neurorehabilitation combined with conventional rehabilitative measures might sometimes help counteract imprisonment’s potential degenerative effects effectively when conventional rehabilitative measures alone do not. Neurorehabilitation might also sometimes provide a means for preserving genuine hope of rehabilitation and release in situations where hope is lost. We cannot defend these thoughts definitively here. Still, we shall provide some motivation for them.

First, consider the potential anti-degeneration effects of some existing and emerging neuropharmaceuticals and technologies. At one level, we have the neuropharmaceuticals already in use within forensic psychiatry – so, for example, medication that might help to combat the traumatising and brutalising effects that sometimes attend incarceration.Footnote ¹¹⁴ These kinds of interventions clearly can be utilised to help counter the potentially degenerative effects of our carceral practices. Providing these interventions might also sometimes be required, not only to protect and fulfil the right to rehabilitation but also to protect and fulfil persons’ right to mental health.Footnote ¹¹⁵ And in the future, novel developments might further broaden the range of interventions at our disposal for forestalling penal degeneration.Footnote ¹¹⁶ Again, the prospect of these anti-degeneration neurointerventions does not obviate the need to reform our carceral practices such that they do not produce degenerative effects in the first place. Indeed, it might be objected that a person is still subjected to cruel and degrading punishment if neurointerventions are required for, and harnessed for the purpose of, making prison tolerable.Footnote ¹¹⁷ Our point here is thus not that neurorehabilitation might render otherwise unacceptable punishments acceptable but rather that as and when persons are subject to punishment-induced degeneration that can be countered more effectively with neurorehabilitation, refraining from providing neurorehabilitation may be cruel and in violation of the prohibition on cruel treatment.

Consider next how the offer of neurorehabilitation might sometimes be necessary to preserve hope for release in cases where a person is subject to life, long or indeterminate (preventive) detention and where conventional rehabilitative measures have failed to enable rehabilitation. Again, we cannot comment on how likely it is that candidate and emerging neurotechnologies will succeed when conventional measures have failed. But as things stand, conventional rehabilitation proves ineffective for some individuals. Some such individuals consequently lack genuine prospect of release when their release depends on their demonstrating that they have become rehabilitated.Footnote ¹¹⁸ Offering safe and effective neurorehabilitation in these circumstances – if it exists – would put hope back on the table. The right against cruel, inhuman and degrading punishment would thus support a (defeasible) right to access safe and effective neurotechnologies if and when these are necessary to preserve hope for rehabilitation and release.Footnote ¹¹⁹

Looking next to the putative human right to socially contribute and the implications this proposed right might have for neurorehabilitation, one possible implication is a right to have access to neurorehabilitation when one exhibits dispositions and behaviours that hinder one’s ability to socially contribute, and when these dispositions and behaviours are amenable to alteration via neurorehabilitation. Clearly, some convicted persons exhibit dispositions and behaviours that may hinder their efforts to socially contribute. Think of people who lash out aggressively or who have significant difficulty experiencing compassion for others.Footnote ¹²⁰ These challenges are not confined to offending populations.Footnote ¹²¹ Nor do such challenges necessarily impede one’s ability to socially contribute – we each vary in our dispositions and most of us still manage to contribute to the survival and well-being of at least some others notwithstanding. Our point is simply that there are some persons who appear unable to successfully forge social connections, and for whom this hampers their rehabilitation. For these persons, we think the putative right to socially contribute implies defeasible governmental duties of assistance to enable social contribution. And as and when neurotechnologies are a necessary component of an effective assistance package, then relevant neurotechnologies may be something to which persons have a right, accepting their right to social contribution.

Only time will tell what these relevant neurotechnologies might be. Research is still at a very early stage, so we can only speculate. One relevant technology might be the use of transcranial magnetic stimulation on regions of the brain involved in inhibitory control and communication to help increase brain activity in these regions.Footnote ¹²² Other examples might be the use of neurofeedback techniques or neuropharmaceuticals to train or stimulate inhibitory control or compassionate responses in their users.Footnote ¹²³

The analysis in this section will likely meet with some reservations. Some may doubt, on the one hand, that the right against cruel punishment implies a right to neurorehabilitation specifically. Others – while accepting that the putative right to socially contribute, insofar as it implies a right to rehabilitation, will also imply a right to neurorehabilitation – may worry about the consequences of recognising this relationship. More precisely, the first objection might be that the right against cruel punishment does not imply a right to neurorehabilitation because rehabilitation ought to be the responsibility of the convicted person themselves – and effective neurorehabilitation essentially rehabilitates, rather than leaving the responsibility for rehabilitation to, the relevant party.Footnote ¹²⁴ The second objection might be that appealing to a right to social contribution to support a right to neurorehabilitation expresses objectionably disrespectful messages about those who exhibit (neuro)diverse forms of sociality and hence is a line of reasoning that should be resisted.

These objections require more extended discussion than we can afford them here. However, we shall make two brief remarks by way of reply to them. First, neurorehabilitation does not necessarily absolve persons of the responsibility for rehabilitating themselves. On the one hand, a person has to choose to undergo neurorehabilitation when exercising their right to it – something that itself is the first step in taking responsibility for one’s rehabilitation. Furthermore, candidate dispositional changes elicited by neurorehabilitation – for example, attenuated aggression, enhanced empathy or increased social understanding – probably do not in-and-of-themselves lead to desistance from crime. For desistance to occur, it is likely that those who have offended still have to be willing, and make the decision, to desist. A parallel can be made here with how the neurostimulant caffeine can enhance, but is not responsible for, a person’s productivity. Just as caffeine may help facilitate concentration while leaving decisions about how to direct this newly focused state up to the individual consumer, most candidate neurointerventions may only deliver on their promise of reducing reoffending if the person is, in fact, willing to desist.Footnote ¹²⁵

The objection that deriving a right to neurorehabilitation from a right to social contribution expresses objectionably disrespectful messages about those who exhibit neurodiverse forms of sociality should give us cause for pause. Clearly, a broad range of interactional styles can and should be recognised as acceptable, and neurorehabilitation should be developed and delivered in an environment that acknowledges this. Yet, does acknowledging a relationship between a right to social contribution and a right to neurorehabilitation express such a disrespectful message? We think not necessarily, particularly if (a) the right to neurorehabilitation is understood as a right to have access to neurorehabilitation while retaining the prerogative to refuse it (as per our understanding); and (b) neurorehabilitation is not proffered as a tool for changing a person’s particular interactional style. The above discussion endeavoured to illustrate that sometimes, persons’ prerogative to alter their (justice-relevant) dispositions and behaviours might be something they are entitled to claim assistance for, accepting a right to social contribution. But this is not the same as saying that a right to social contribution implies a right to neurotechnological tools that promote neurotypical sociality or that neurotypical sociality is necessary for social contribution. Any movement towards this kind of conclusion should be resisted.Footnote ¹²⁶

This second objection thus underscores the need for safeguards in making neurorehabilitation available even when there is reason to think persons have a right to it, given the potential unintended sequelae that might follow from introducing neurorehabilitation.

7.5 Concluding Remarks

To conclude, this chapter has documented existing law and jurisprudence with respect to rehabilitation, raised and interrogated two arguments that seem to support convicted persons’ right to rehabilitation under certain conditions and queried what these candidate justifications might imply for the specific case of neurorehabilitation. More specifically, we explored how persons’ moral and legal right against cruel, inhuman or degrading punishment, and persons’ putative moral right to socially contribute, implies a right to rehabilitation under certain conditions. These conditions are when rehabilitation is necessary to prevent or counter the degrading impact of imprisonment, when it is necessary or important for preserving genuine hope for release in the case of life-sentenced or preventatively detained persons; and when it is necessary for preserving convicted persons’ ability to contribute to the survival and well-being of at least some others.

Based on this analysis, we argued that the right to rehabilitation implies a defeasible right to neurorehabilitation, when neurorehabilitation is necessary to effect the above outcomes. In practice, this would of course depend, in the first place, on the availability of neurotechnologies that have been shown to be effective for rehabilitative purposes at least in some subgroups of convicted persons.

8.1 Introduction

Can neurotechnologies be used responsibly in the rehabilitation of convicted persons, respecting fundamental freedoms and rights? This is the question we have endeavoured to answer throughout this book. The human rights challenges generated by new and emerging neurotechnologies have been widely noted by scholars, ethics committees and human rights bodies.Footnote ¹ This has prompted a debate on how and to what extent human rights protect – and should protect – against unsolicited interference with our brains and minds.Footnote ² In a recent report on the impact, opportunities and challenges of neurotechnology in relation to human rights, the Human Rights Council Advisory Committee concluded that neurotechnologies can affect human rights in a “unique manner”. Therefore, developing an actionable human rights approach is of the “utmost importance”. Some of their concerns relate to the potential use of neurotechnology in the criminal justice system, holding that “most of the applications proposed are extremely problematic from a human rights perspective”. For example, they consider that “forceful extraction of information from detainees or offenders through the use of neurotechnology is prohibited”.Footnote ³

In this book, we explored the permissibility of the use of neurotechnology for the rehabilitation of convicted persons in view of international and European human rights law. This entailed three central tasks: (A) clarifying the scope of the relevant human rights to identify potential infringements of these rights, (B) clarifying these rights’ permissible limitations to identify potential violations, and (C) exploring the scope of positive obligations of states that can be derived from these rights. Our analysis has provided us with the first contours of a normative, human rights-based framework for neurorehabilitation in criminal justice. We shall now synthesise our results in this final chapter.

From a human rights perspective, the permissibility of neurotechnological interventions will usually depend on all relevant circumstances of the individual case. Still, with this reservation in mind, based on our analysis we can make a tentative distinction between, roughly, three different types of neurotechnological interventions for the purpose of criminal rehabilitation: (1) plausibly permissible interventions, (2) plausibly impermissible interventions, and (3) interventions of which the permissibility is largely unclear. While acknowledging its oversimplicity and stressing, again, that from a human rights perspective the lawfulness of neurotechnological interventions will normally depend on the facts and circumstance of individual cases, we do think that attempts to clarify different categories of (im)permissible interventions has value. Such endeavours are particularly relevant in relation to ongoing developments in policymaking and the regulation of neurotechnologies through general guidelines, often informed by and grounded in human rights.Footnote ⁴

Therefore, based on the analyses in the preceding chapters, we will try to tentatively identify at least some categories of neurotechnological applications of which their use in criminal justice appears prima facie permissible (8.2) and prima facie impermissible (8.4). We also consider neurotechnological applications whose permissibility is largely unclear (8.3). The three categories are meant to structure our thoughts about the human rights protection of the person in relation to neurotechnology. The candidate examples of the respective categories provided in the next sections are certainly not meant to be exhaustive nor definitive.

8.2 Plausibly Permissible Interventions

An instance of neurorehabilitation seems prima facie permissible when (i) valid consent to the intervention is obtained, (ii) the intervention is known to be safe,Footnote ⁵ and (iii) the intervention is expected to be effective in its professed goal (i.e., the goal of facilitating neurorehabilitation or of identifying neural markers that are relevant for assessing recidivism risk).Footnote ⁶

This category of prima facie permissible neurorehabilitation includes situations in which making safe and effective neurorehabilitation available to a given person – and delivering it when consent to it is obtained – is not only permissible but plausibly required from a human rights perspective. We discussed this idea of a right to neurorehabilitation in Chapters 5, 6 and 7. In Chapter 5, we suggested that states might have a positive obligation under the right to respect for private life to make mental control-enhancing neurotechnologies available to convicted persons on certain occasions.Footnote ⁷ For instance, when these persons have mental states that significantly limit their ability to live the kind of life that they want. We suggested in Chapter 6 that states might have a positive obligation under the right to mental health to make neurorehabilitation available to some subpopulations of convicted persons: for instance, when it would be necessary for, or would make it substantially easier for these populations to achieve, a reasonable standard of mental health. And in Chapter 7, we suggested that states might have a positive obligation to make neurorehabilitation available, when neurorehabilitation is necessary (i) to counter the degenerative impact of imprisonment, (ii) to preserve genuine hope for release from prison or (iii) to preserve convicted persons’ ability to socially contribute.

That neurorehabilitation might sometimes be required from a human rights perspective has yet received little support from the case law, though. The use of neurotechnologies in criminal justice is still largely in the research phase and no cases involving neurorehabilitation have been brought before human rights courts. It is also unlikely that rights-based claims to be provided with neurorehabilitation will be successfully invoked in the near future, given (among other things) the resource constraints with which states operate. Still, the suggestion that neurorehabilitation might sometimes be required (absent defeaters) from a human rights perspective receives support from the case law and literature pertaining to other kinds of interventions – for example, standard medical interventions and traditional rehabilitative interventions – and from some general observations of the courts.Footnote ⁸ We thus posit that the category of plausibly permissible neurotechnological intervention in criminal justice includes some interventions that states also have a defeasible duty to provide.

8.3 Interventions of Which the Permissibility Is Unclear

As follows from the analyses in Chapters 2, 3 and 4, the question about the permissibility of non-consensual use of neurotechnology for rehabilitation is complex.

On first inspection, non-consensual neurorehabilitation might seem like a paradigmatically impermissible interference with the person’s body and mind, and as such, something that is clearly impermissible. The Human Rights Council Advisory Committee seems to lean towards such a position. For example, they write that the prohibition of ill-treatment pursuant to Article 7 ICCPR “provides offenders with protection against brain-reading and brain-writing techniques, particularly ‘neurocorrectives’, which constitute an inherently degrading treatment in all circumstances”.Footnote ⁹ Furthermore, they hold that “[t]he forceful extraction of information from detainees or offenders through the use of neurotechnologies is prohibited”.Footnote ¹⁰ Similar claims have been made based on the right to freedom of thought.Footnote ¹¹

Our analysis provides reasons for more nuance, however. The human rights protection of personal interests over brains and minds, such as the interest in mental privacy, personal integrity and identity, has both a qualified and absolute dimension.Footnote ¹² First and foremost, the protection of these interests is covered by qualified rights – in particular, the right to privacy and personal integrity. Furthermore, a limited number of (grave) interferences can engage additional protection within the absolute dimension – particularly from the prohibition of ill-treatment and the right to freedom of thought and, to some extent, by the arguably absolute protection of the core essence of privacy and integrity rights.

As far as non-invasive brain stimulation and neuroprediction is concerned, we found that their non-consensual use is unlikely to infringe either the prohibition of ill-treatment or the right to freedom of thought. Regarding the prohibition of ill-treatment, the bodily and mental effects of non-invasive brain stimulation may often be too subtle to qualify as the infliction of severe physical pain or mental suffering, failing to attain the prohibition’s minimum level of severity threshold. Furthermore, when embedded in a larger and diverse rehabilitation programme, complemented by interventions that actively engage the person – as ends in themselves, not only as means – the risk of disrespecting human dignity by objectification will reasonably be reduced.

Regarding the right to freedom of thought, we argued that at least part of the mental phenomena relevant to the neurotechnological assessment and/or reduction of a person’s recidivism risk – such as certain tendencies, behavioural control, empathic abilities and emotional responses – do not qualify as “thoughts” in the meaning of this right. Hence, when such mental phenomena are the targets of non-consensual neurorehabilitation, the right to freedom of thought is unlikely to be infringed.

Still, in most cases, non-consensual neurorehabilitation will infringe one or more qualified rights and are therefore prima facie prohibited. In particular, they may infringe the right to (mental) privacy, bodily and mental integrity, and, in some cases, the right to personal identity. These are all inherent in the umbrella rights to privacy and to private life pursuant to Article 17 ICCPR and 8 ECHR. Whether an infringement of these qualified rights will constitute a rights violation – rendering a neurotechnological interference impermissible – depends on an ultimate balancing of competing interests, which, in turn, depends on the facts and circumstances of the individual case.

This is no neutral balancing act. Specific restrictions and requirements apply. To be justified, an infringement of the qualified rights to mental privacy and personal integrity should have a non-arbitrary basis in the law and must be proportionate to a legitimate aim, such as crime prevention. Consequently, the permissibility of neurotechnological interventions that infringe these qualified human rights is largely unclear, as it strongly depends on the circumstances of the individual case. Still, some general aspects of the balancing act can be considered.

First, as discussed, the more severe a rights infringement, the more substantial the reasons must be for its justification. Applying this rule to preventive measures in the context of criminal justice often implies that severe rights infringements can only be justified to prevent serious crimes. Assuming that both neuroprediction and neurointerventions aim to contribute to preventing future crime, this means that, to be justified, the interference with a convicted person’s privacy, personal integrity and/or identity should be proportionate to the severity of the harm the authorities aim to protect against.

For example, we argued that the bodily interference of non-invasive brain stimulation will often be minor. Such minor bodily interference could reasonably be considered proportionate to the prevention of a variety of non-trivial criminal offences. Meanwhile, we also argued that the mental effects of these interventions may be significant, which could lead to a severe infringement of the right to mental integrity. If such infringements can be justified at all, their justification would require weighty reasons, such as the prevention of severe crimes like murder, rape or abuse.

However, since the right to mental integrity is currently underdeveloped, it is unclear how exactly the severity of infringements of this right should be assessed. We suggested the potential relevance of the directness of a mental interference and the level of mental harm that it causes. If the primary aim of a right to mental integrity is to protect autonomy over mental states and processes, then it is plausible that the less mental control an intervention leaves to the affected person, the more severe the infringement of the right to mental integrity can be considered to be. If we assume that, generally, direct interventions leave less control over mental states than indirect interventions, this would imply that, in general, stronger reasons are needed to justify infringements through direct interventions compared to indirect interventions. And when an infringement of the right to mental integrity entails additional mental harm, such as anxiety, stress or discomfort as a side effect of medication or brain stimulation, this likely adds to the severity of the rights infringement, therefore requiring more substantial reasons for justification.

The tools we considered in the context of neurorehabilitation – such as tDCS, TMS and psychopharmaceutical interventions – are of a direct nature as they target brain processes. The mental changes they induce leave little (if any) room for mental control to the person. Therefore, on the proposed account, these interventions could be considered to interfere with the person’s mental autonomy to a significant degree, requiring weighty and very important reasons to be justified, such as reducing recidivism risks related to manslaughter or sexual abuse. Clearly, the need for such substantial reasons may further increase when the intervention entails harmful psychological side effects. Hence, whether such interferences can be permissible in some cases is an open question and the answer to it may strongly depend on the circumstances of each individual case.

Another consideration that could be relevant to the permissibility of neurorehabilitative tools that infringe qualified human rights is whether they interfere with the “core” or “essence” of those rights. The essence of rights doctrine has been employed for the interpretation and adjudication of human rights under both the ICCPR and the ECHR.Footnote ¹³ Respect for the essence of international human rights arguably follows from Article 5(1) ICCPR.Footnote ¹⁴ Furthermore, according to the Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, permissible limitations of Covenant rights “shall not be interpreted so as to jeopardize the essence of the right concerned”.Footnote ¹⁵ Likewise, considering Article 2(1) ICCPR, the Human Rights Committee states that, when restricting Covenant rights, “[s]tates must demonstrate their necessity and only take such measures as are proportionate to the pursuance of legitimate aims in order to ensure continuous and effective protection of Covenant rights. In no case may the restrictions be applied or invoked in a manner that would impair the essence of a Covenant right”.Footnote ¹⁶

In the same vein, the ECtHR has stressed, on various occasions, that restrictions on human rights may not impair the “very essence” of those rights.Footnote ¹⁷ As Gerards observes, in some cases, it seems that the essence of the right constitutes an “inviolable and absolute core” that cannot be balanced away, operating as a real limit of limits.Footnote ¹⁸

Meanwhile, in other cases, the ECtHR appears to favour a rather relative approach to the essence of rights, holding that, in principle, the margin of appreciation of states will be narrowed if the essence of a Convention right is affected. In Chapter 3 we saw that such core rights reasoning generally implies that the closer a certain aspect of a right relates to the central values underlying the ECHR – democracy and the rule of law, pluralism, human dignity and personal autonomy – the more important it can be considered to be. Meanwhile, the more a certain aspect is in the periphery of the right, the less weighty it can be taken to be. Because restrictions of core rights might threaten the realisation of the ECHR’s central objectives, the ECtHR considers it justified to apply strict scrutiny.Footnote ¹⁹ For example, under the right to respect for private life pursuant to Article 8 ECHR, the ECtHR holds that when “a particularly important facet of an individual’s existence or identity is at stake, the margin of appreciation allowed to the State will be restricted”.Footnote ²⁰

Hence, when the non-consensual stimulation of a convicted person’s brain interferes with behavioural traits or mental states that must be considered an essential aspect of the person’s identity,Footnote ²¹ the state’s margin of appreciation is plausibly narrow. In such cases, the national authorities have limited discretion in balancing the convicted person’s private interests against the public interest of crime prevention.

Note, however, that in human rights law, the essence of rights doctrine has not yet come to full development. Its application by different courts and treaty bodies is often considered vague, unreliable and inconsistent.Footnote ²² Therefore, the implications of this doctrine for neurorehabilitation under both the ECHR and ICCPR are yet unclear.

8.4 Plausibly Impermissible Interventions

Based on our analysis, we can identify two general circumstances where non-consensual neurorehabilitation is impermissible under established human rights law – that is, when the interference (i) infringes and therefore violates an absolute human right or (ii) infringes a qualified right in a way that cannot reasonably be justified, therefore constituting a rights violation.

Non-consensual or mandatory employment of neurotechnology will be impermissible if it infringes the prohibition of ill-treatment or the right to freedom of thought – two rights that are generally considered to be absolute.Footnote ²³ Although we concluded that the relevance of these rights and freedoms appear limited regarding the case of neurorehabilitation in criminal justice, they do set some clear and absolute boundaries. First, the involuntary employment of neurotechnology is impermissible if the effects (or side effects) are severe, for example, because it is very painful, dehumanizing, has dreadful impact on the person’s health or severely affects the person’s agency or autonomy, which all plausibly qualify as inhuman or at least degrading treatment, prohibited by Article 7 ICCPR and 3 ECHR.

Furthermore, non-consensual neurorehabilitation is impermissible when it changes or reveals the person’s religious beliefs, conscientious convictions or their unexpressed thoughts. Although the precise interpretation of “thought” in human rights law is yet unsettled, some mental features clearly qualify, such as political and philosophical beliefs. Other candidates that might qualify include a person’s deepest wishes and sexual desires. Non-consensual interference with such mental properties will infringe the right to freedom of thought and is therefore prohibited.

Finally, supposing the use of neurorehabilitation is safe and effective, has a non-arbitrary legal basis and pursues a legitimate interest,Footnote ²⁴ its non-consensual use will be impermissible if it constitutes an unnecessary or disproportionate infringement of one of the considered qualified rights. Although considerations of necessity and proportionality usually require a balancing of interests in view of all relevant circumstances of the individual case, some clear instances of impermissible interference can be identified.

For example, when the targeted person is willing to submit to traditional forms of rehabilitation and these interventions promise to be equally effective, the non-consensual administration of neuropharmaceuticals or mandatory employment of brain stimulation is unnecessary and would, therefore, constitute an impermissible infringement of the relevant right, like the right to personal integrity. Furthermore, compulsory neurointerventions will likely be disproportionate when applied to persons who are not a severe threat to public safety. Likewise, interferences with the person’s mental privacy during neuroprediction can be excessive and unnecessary, for example, when targeting non-crime-relevant mental properties.

8.5 Closing Remarks

Neurotechnological developments have led to a lively debate among scholars and policymakers regarding the protection of our minds. The freedom of our minds and the rights that protect them are of the utmost importance to humans and humanity.

One possible area of future application is of particular concern. This area is criminal justice and it is one of concern because it is a domain where non-consensual use of neurotechnology might be considered, where some limitations of rights and freedoms are legally permissible and where the stakes are typically high, both for convicted persons, victims and society at large.

Our analysis has focused on the application of neurotechnologies in this domain. More specifically, we considered neurorehabilitation in relation to human rights that protect the person – their body and mind. We set out to identify whether – and if so, how – neurorehabilitation might be used responsibly from a human rights perspective. As the key components of this analysis – the neurotechnologies and the legal frameworks – are evolving, our conclusions are only provisional.

Still, we conclude that current human rights protection of our bodies and minds is robust. At the same time, with the exception of certain areas, it is not absolute, meaning it will often require a balancing of competing interests. For instance, as we argued that neurointerventions for rehabilitative purposes may usually not target “thoughts” in a strict sense, but rather inclinations and preferences, it appears that absolute protection by the right to freedom of thought, although not impossible, is less likely. That means that the ultimate decision about the admissibility of such interventions would strongly rely on the applicable qualified rights, like the right to privacy and personal integrity. This means that the admissibility of these interventions will ultimately depend on the type of balancing discussed above. This may be reason to seek further protection, for instance in the form of reshaped human rights or by other means.

Emerging neurotechnologies do not only pose threats and create risks and, therefore, require legal protection. They also open up opportunities for people’s health, rehabilitation and the enhancement of mental capabilities. Accordingly, we explored the existence and possible implications of rights to the application of neurotechnologies, at least to some forms of use.

Based on our analysis in Chapters 5, 6, and 7, we suggested that there may be situations where making safe and effective neurorehabilitation available to a given person – and delivering it when voluntary and competent consent to it is obtained – is not only plausibly permissible but perhaps even required from a human rights perspective. Meanwhile, that neurorehabilitation may be required from a human rights perspective receives little support from the case law so far. We suggested that states might have a positive obligation to offer neurorehabilitation when it is necessary (i) to counter the degenerative impact of imprisonment, (ii) to preserve genuine hope for release from prison or (iii) to preserve convicted persons’ ability to socially contribute. Meanwhile, practical considerations may be relevant here: the likelihood of successful rights-based claims to neurorehabilitation is also influenced by resource constraints within which states operate.

Still, we feel it is highly important that positive rights receive attention in future debates about responsible use of neurotechnologies in criminal justice, together with the negative rights that protect us from unsolicited interference by others with our brains and minds.