Abstract
OBJECTIVES: We consider the neuroethics of treatment without consent from a broader perspective than the accepted starting point of functional mental capacities. Notably, in common law jurisdictions, consciousness is seldom admitted in criminal law as a topic for expert evidence of mentalistic defenses or impairments in civil proceedings, yet consciousness and personality are central in Roman law jurisdictions. METHODS: The framework we have adopted is to consider treatment without consent under the headings goals, processes, treatment, and evaluation. The ECHR and the judges of the European Court of Human Rights (ECtHR) are drawn from both common law and Roman law jurisdictions, so that their interpretations and precedents may be informative concerning alternatives to strict application of capacity tests. RESULTS: There are variable thresholds for treating without consent according to the complexity and amount of information involved, the seriousness of the consequences of untreated illness, the effectiveness of the treatments available and the benefits of earlier intervention, particularly for disease-modifying treatments. Theory-driven principled approaches and scientific medical process approaches to ethical treatment are contrasted. CONCLUSIONS: Carrara's emphasis on the importance of consciousness and its layered dysfunctions as evidence of competence or impairment appears more robust than a narrow approach based only on functional mental capacity. Capacity-whether general or functional, remains amenable to rules of evidence and legal judgment at the expense of increasingly excessive simplification. Carrara's emphasis on the inherent dignity of the person appears most in keeping with modern human rights principles.