Disorders of Consciousness and Disability Law

Neuroethics, Covert Consciousness, and Disability Rights: What Happens When Artificial Intelligence Meets Cognitive Motor Dissociation?

In this article, we consider the intersection of cognitive motor dissociation (CMD) and artificial intelligence (AI), hence when CMD meets AI. In covert consciousness, there is a discordance between the observed behavior, the traditional bedside mode of assessment, and the response to volitional commands as depicted by neuroimaging or EEG studies. This alphabet soup of acronyms represents both the promise and peril of nascent technology in covert consciousness. On the diagnostic side, there is the complexity and uncertainty of identifying the discordance between cognitive activity and overt behavior. On the therapeutic side, when AI is used to generate speech, there is the possibility of misrepresenting the thoughts and intentions of those who are otherwise voiceless. This concordance of factors makes the application of AI to CMD worthy of deeper consideration. We offer this analysis in the spirit of anticipatory governance, a prudential process by which one plans to prevent or mitigate unintended consequences of novel technology. We first consider the normative challenges posed by CMD for clinical practice, neuroethics, and the law. We then explore the history of covert consciousness and the relationship of severe brain injury to the right-to-die movement, before introducing three biographies of brain injury that highlight the potential impact of disability bias or ableism in clinical practice, assistive technology, and translational research. Subsequently, we explore how AI might give voice to conscious individuals who are unable to communicate and the ethical challenges that this technology must overcome to promote human flourishing drawing upon what Nussbaum and Sen have described as a "capabilities approach" to promote normative reasoning.

A Descriptive Analysis of Access to Assistive Technology in Children With Acquired Brain Injury: The Right to Assistive Devices

OBJECTIVE

Pediatric clinicians caring for children with acquired brain injury have noted that many individuals requiring assistive technology (AT) go unserved or face delays until devices are obtained, with potential adverse implications for recovery and development. In this article we map the pathways by which AT is prescribed and assess delays and barriers to access.

METHODS

We conducted a retrospective chart review of patients with moderate to severe brain injury admitted to Blythedale Children's Hospital over a 2-year period using a database drawn from the medical record.

RESULTS

We identified 72 children diagnosed with brain injury requiring at least 1 device. Devices were used to improve mobility and positioning, self-care, safety, and communication, and enable access to other technologies and foster social integration. We found that 55% of devices were delivered, with most deliveries to home or the hospital's outpatient department for fitting, training, and instruction. Time to delivery ranged from 12 to 250 days with an average of 69.4 days. Twenty percent of nondeliveries were attributable to change in medical status, transfer to a skilled nursing facility, or continued inpatient status, while 31% were canceled by the family. Other nondeliveries were attributed to insurance coverage. We also found that the medical record is not designed for the longitudinal tracking of devices, indicating the need for a prospective process to document the AT trajectory.

CONCLUSION

Instead of tolerating delays and denials, there should be a normative expectation that children have a right to medically necessary devices, consistent with disability law. This analysis was undertaken as a step toward formulating a prospective means of tracking AT recommendations, approvals, denials, and/or deliveries. Our findings should be understood as a promissory note toward structural reforms that are reflective of society's responsibility to better meet the needs of vulnerable children and their families.

Cognitive Motor Dissociation: Gap Analysis and Future Directions

BACKGROUND

Patients with disorders of consciousness who are behaviorally unresponsive may demonstrate volitional brain responses to motor imagery or motor commands detectable on functional magnetic resonance imaging or electroencephalography. This state of cognitive motor dissociation (CMD) may have prognostic significance.

METHODS

The Neurocritical Care Society's Curing Coma Campaign identified an international group of experts who convened in a series of monthly online meetings between September 2021 and April 2023 to examine the science of CMD and identify key knowledge gaps and unmet needs.

RESULTS

The group identified major knowledge gaps in CMD research: (1) lack of information about patient experiences and caregiver accounts of CMD, (2) limited epidemiological data on CMD, (3) uncertainty about underlying mechanisms of CMD, (4) methodological variability that limits testing of CMD as a biomarker for prognostication and treatment trials, (5) educational gaps for health care personnel about the incidence and potential prognostic relevance of CMD, and (6) challenges related to identification of patients with CMD who may be able to communicate using brain-computer interfaces.

CONCLUSIONS

To improve the management of patients with disorders of consciousness, research efforts should address these mechanistic, epidemiological, bioengineering, and educational gaps to enable large-scale implementation of CMD assessment in clinical practice.

Disorders of Consciousness Rehabilitation: Ethical Dimensions and Epistemic Dilemmas

Patients with disorders of consciousness who survive to discharge following severe acute brain injury may face profoundly complex medical, ethical, and psychosocial challenges during their courses of recovery and rehabilitation. Although issues encountered in caring for such patients during acute hospitalization have received substantial attention, ethical challenges that may arise in subacute and chronic phases have been underexplored. Shedding light on these issues, this article explores the landscape of normative issues in the course of treating and facilitating access to care for persons with disorders of consciousness during rehabilitation and examines potential implications for patients, clinicians, family members, and society.

Identity Theft, Deep Brain Stimulation, and the Primacy of Post-trial Obligations

Patient narratives from two investigational deep brain stimulation trials for traumatic brain injury and obsessive-compulsive disorder reveal that injury and illness rob individuals of personal identity and that neuromodulation can restore it. The early success of these interventions makes a compelling case for continued post-trial access to these technologies. Given the centrality of personal identity to respect for persons, a failure to provide continued access can be understood to represent a metaphorical identity theft. Such a loss recapitulates the pain of an individual's initial injury or illness and becomes especially tragic because it could be prevented by robust policy. A failure to fulfill this normative obligation constitutes a breach of disability law, which would view post-trial access as a means to achieve social reintegration through this neurotechnological accommodation.

Medicolegal issues and disorders of consciousness

BACKGROUND

The tasks and responsibilities that come with clinician involvement in medicolegal proceedings can be daunting and particularly so in challenging areas such as provision of medicolegal opinions in cases involving disorders of consciousness (DoC).

OBJECTIVE

The aim of this narrative review was to provide education and advice to healthcare practitioners who by choice or circumstance are asked and/or required to provide medicolegal opinions in cases involving patients with DoC.

METHODS

A literature search was conducted using PubMed Central and MedlinePlus for articles dealing with clinician involvement in medicolegal cases involving persons with DoC. The information provided also integrates the authors' nearly 40 years of clinical experience, brain injury medicine practice and "trials and tribulations" associated with medicolegal involvement in such cases.

RESULTS

The literature was found to be replete with articles on brain death and withdrawal/withholding of care (which are not the focus of this review). The extant medical literature in brain injury medicine on the other hand is currently lacking in practical information for clinicians working "in the trenches" regarding the challenges and caveats of medicolegal involvement in such cases.

CONCLUSION

This review provides the reader with a big picture overview of the most pertinent medicolegal topics inherent in clinical work with patients with DOC including pertinent nomenclature, caveats regarding forensic consultation including independent medical examinations, testimony tips, discussion of life expectancy/median survival concepts, prognostication in a medicolegal context, documentation and record keeping as well as some of the specific challenges pertinent to these types of brain injury cases that are not per se relevant in less severe injuries.

Conscientious Objection to Aggressive Interventions for Patients in a Vegetative State

Some physicians refuse to perform life-sustaining interventions, such as tracheostomy, on patients who are very likely to remain permanently unconscious. To explain their refusal, these clinicians often invoke the language of "futility", but this can be inaccurate and can mask problematic forms of clinical power. This paper explores whether such refusals should instead be framed as conscientious objections. We contend that the refusal to provide interventions for patients very likely to remain permanently unconscious meets widely recognized ethical standards for the exercise of conscience. We conclude that conscientious objection to tracheostomy and other life-sustaining interventions on such patients can be ethical because it does not necessarily constitute a form of invidious discrimination. Furthermore, when a physician frames their refusal as conscientious objection, it makes transparent the value-laden nature of their objection and can better facilitate patient access to the requested treatment.

International variability in the diagnosis and management of disorders of consciousness

This manuscript explores the international variability in the diagnosis and management of disorders of consciousness (DoC). The identification, evaluation, intervention, exploration, prognostication and limitation of therapy for patients with DoC is reviewed through an international lens. The myriad factors that impact the diagnosis and management of DoC including 1) financial, 2) legal and regulatory, 3) cultural, 4) religious and 5) psychosocial considerations are discussed. As data comparing patients with DoC internationally are limited, findings from the general critical care or neurocritical care literature are described when information specific to patients with DoC is unavailable. There is a need for improvements in clinical care, education, advocacy and research related to patients with DoC worldwide. It is imperative to standardize methodology to evaluate consciousness and prognosticate outcome. Further, education is needed to 1) generate awareness of the impact of the aforementioned considerations on patients with DoC and 2) develop techniques to optimize communication about DoC with families. It is necessary to promote equity in access to expertise and resources for patients with DoC to enhance the care of patients with DoC worldwide. Improving understanding and management of patients with DoC requires harmonization of existing datasets, development of registries where none exist and establishment of international clinical trial networks that include patients in all phases along the spectrum of care. The work of international organizations like the Curing Coma Campaign can hopefully minimize international variability in the diagnosis and management of DoC and optimize care.

Specialized intensive inpatient rehabilitation is crucial and time-sensitive for functional recovery from disorders of consciousness

Background

Disorders of consciousness (DoCs) after severe brain injury are considered to be conditions with dire prognosis. Despite the accumulating evidence, inpatient rehabilitation is often denied by payers referring to the Medicare/Medicaid criteria, under the assumption that such patients will not “actively” participate in therapy or make “measurable improvements.”

Objective

This study aimed to report on the effectiveness and efficiency of a specialized inpatient DoC rehabilitation program based on measurable clinical parameters.

Methods

A retrospective cohort study was conducted. The cohort comprised 137 patients with DoC admitted to a specialized acute inpatient rehabilitation program between January 2014 and October 2018. Patients were categorized as having been admitted at the acute stage (<=28 days post-injury), subacute stage (29–365 days following a traumatic brain injury (TBI) or 29–90 days following a non-TBI), or chronic stage (>365 days following a TBI or >90 days following a non-TBI). Outcomes included changes in level of consciousness (based on the Coma Recovery Scale–Revised (CRS-R), while also acknowledging scenarios beyond those captured by the CRS-R via Individualized Qualitative Behavioral Assessment and team consensus); Functional Independence Measure (FIM) levels; achievements in decannulation and initiation of oral diet; and time to those achievements.

Results

The rates of emergence from a minimally conscious state were 90, 62, and 18% among patients admitted at the acute, subacute, and chronic stages, respectively. Among patients who emerged, 100, 85, and 67%, respectively, had measurable FIM scores. Approximately 60 and 20% of patients at the acute and subacute stages, respectively, required moderate assistance or less in transfer/communication/eating/grooming/upper body dressing by the time of discharge from Phase I admission. The decannulation rates were 94, 67, and 17%. The oral diet initiation rates were 70, 23, and 6%. The time to reach these achievements lengthened as chronicity increased. There was a weak positive correlation (rs = 0.308) in the case of decannulation and a strong positive correlation (rs = 0.606, both p < 0.01) in the case of oral diet between days since injury on admission and days to the achievement after admission. Patients with TBI and hypoxic brain injury had comparable recovery rates when admitted at the acute and subacute stages.

Conclusion

Specialized intensive inpatient rehabilitation is crucial and time-sensitive for functional recovery from DoC caused by TBI and hypoxic–ischemic brain injury. Specific goals and different outcome measures need to be developed to appraise the benefits of acute inpatient rehabilitation for DoC.

Ethics Priorities of the Curing Coma Campaign: An Empirical Survey

BACKGROUND

The Curing Coma Campaign (CCC) is a multidisciplinary global initiative focused on evaluation, diagnosis, treatment, research, and prognostication for patients who are comatose due to any etiology. To support this mission, the CCC Ethics Working Group conducted a survey of CCC collaborators to identify the ethics priorities of the CCC and the variability in priorities based on country of practice.

METHODS

An electronic survey on the ethics priorities for the CCC was developed using rank-choice questions and distributed between May and July 2021 to a listserv of the 164 collaborators of the CCC. The median rank for each topic and subtopic was determined. Comparisons were made on the basis of country of practice.

RESULTS

The survey was completed by 93 respondents (57% response rate); 67% practiced in the United States. On the basis of respondent ranking of each topic, the prioritization of ethics topics across respondents was as follows: (1) clinical care, (2) diagnostic definitions, (3) clinical research, (4) implementation/innovation, (5) family, (6) data management, (7) public engagement/perceptions, and (8) equity. Respondents who practiced in the United States were particularly concerned about public engagement, the distinction between clinical care and research, disclosure of results from clinical research to families, the definition of "personhood," and the distinction between the self-fulfilling prophecy/nihilism and medical futility. Respondents who practiced in other countries were particularly concerned about diagnostic modalities for clinical care, investigational drugs/devices for clinical research, translation of research into practice, and the definition of "minimally conscious state."

CONCLUSIONS

Collaborators of the CCC considered clinical care, diagnostic definitions, and clinical research the top ethics priorities of the CCC. These priorities should be considered as the CCC explores ways to improve evaluation, diagnosis, treatment, research, and prognostication of patients with coma and associated disorders of consciousness. There is some variability in ethics priorities based on country of practice.

Cognitive-Motor Dissociation Following Pediatric Brain Injury: What About the Children?

Background and Objectives

Following severe brain injury, up to 16% of adults showing no clinical signs of cognitive function nonetheless have preserved cognitive capacities detectable via neuroimaging and neurophysiology; this has been designated cognitive-motor dissociation (CMD). Pediatric medicine lacks both practice guidelines for identifying covert cognition and epidemiologic data regarding CMD prevalence.

Methods

We applied a diverse battery of neuroimaging and neurophysiologic tests to evaluate 2 adolescents (aged 15 and 18 years) who had shown no clinical evidence of preserved cognitive function following brain injury at age 9 and 13 years, respectively. Clinical evaluations were consistent with minimally conscious state (minus) and vegetative state, respectively.

Results

Both participants' EEG, and 1 participant's fMRI, provided evidence that they could understand commands and make consistent voluntary decisions to follow them. Both participants' EEG demonstrated larger-than-expected responses to auditory stimuli and intact semantic processing of words in context.

Discussion

These converging lines of evidence lead us to conclude that both participants had preserved cognitive function dissociated from their motor output. Throughout the 5+ years since injury, communication attempts and therapy had remained uninformed by such objective evidence of their cognitive abilities. Proper diagnosis of CMD is an ethical imperative. Children with covert cognition reflect a vulnerable and isolated population; the methods outlined here provide a first step in identifying such persons to advance efforts to alleviate their condition.

Empowering the voiceless. Disorders of consciousness, neuroimaging and supported decision-making

Patients suffering from (Prolonged) Disorder of Consciousness are deemed incompetent to give valid informed consent due to the presumed impairment of their cognitive functions and the impossibility to communicate with them. Neuroscientists have, however, discovered ways in which communication with some of these patients might be possible by using neuroimaging. This would for the first time make it possible to include them in the decision-making on their own medical treatment. In this article, I elaborate on the prospect of communicating with patients with impaired consciousness in order to obtain their informed consent. I first map the current state-of-the-art in neuroimaging research that exhibits the possibility of communicating with some of these patients. Secondly, I examine how obtaining informed consent from these patients might be possible, given that the specificities and limitations of communication via neuroimaging render the task of assessing their competence rather difficult. Thirdly, I identify some of the important ethical and legal considerations that have to be taken into account before introducing neuroimaging in clinical practice as a means to obtain informed consent. Lastly, I look into the concept of supported decision-making and how this concept relates to the use of neurotechnology to support minimally conscious patients in their abilities to decide over their own medical treatment.

Consciousness, Conflations, and Disability Rights: Denials of Care for Children in the "Minimally Conscious State"

This essay critiques the fiercely utilitarian allocation scheme of Cameron et al. Children have no hope of recovery if their lives are cut short based on administrative protocols that misrepresent the nature of their conditions. Unilateral futility judgements - especially those based on a false predicate - are discriminatory. When considering the best interests of children, we should see possibility in disability and not advance ill-informed utilitarianism.

The neuroethics of disorders of consciousness: a brief history of evolving ideas

Neuroethical questions raised by recent advances in the diagnosis and treatment of disorders of consciousness are rapidly expanding, increasingly relevant and yet underexplored. The aim of this thematic review is to provide a clinically applicable framework for understanding the current taxonomy of disorders of consciousness and to propose an approach to identifying and critically evaluating actionable neuroethical issues that are frequently encountered in research and clinical care for this vulnerable population. Increased awareness of these issues and clarity about opportunities for optimizing ethically responsible care in this domain are especially timely given recent surges in critically ill patients with prolonged disorders of consciousness associated with coronavirus disease 2019 around the world. We begin with an overview of the field of neuroethics: what it is, its history and evolution in the context of biomedical ethics at large. We then explore nomenclature used in disorders of consciousness, covering categories proposed by the American Academy of Neurology, the American Congress of Rehabilitation Medicine and the National Institute on Disability, Independent Living and Rehabilitation Research, including definitions of terms such as coma, the vegetative state, unresponsive wakefulness syndrome, minimally conscious state, covert consciousness and the confusional state. We discuss why these definitions matter, and why there has been such evolution in this nosology over the years, from Jennett and Plum in 1972 to the Multi-Society Task Force in 1994, the Aspen Working Group in 2002 and the 2018 American and 2020 European Disorders of Consciousness guidelines. We then move to a discussion of clinical aspects of disorders of consciousness, the natural history of recovery and ethical issues that arise within the context of caring for people with disorders of consciousness. We conclude with a discussion of key challenges associated with assessing residual consciousness in disorders of consciousness, potential solutions and future directions, including integration of crucial disability rights perspectives.

Intensive neurorehabilitation for patients with prolonged disorders of consciousness: protocol of a mixed-methods study focusing on outcomes, ethics and impact

BACKGROUND

Prolonged disorders of consciousness (PDOC) are amongst the severest sequelae of acquired brain injury. Evidence regarding epidemiology and rehabilitation outcomes is scarce. These knowledge gaps and psychological distress in families of PDOC patients may complicate clinical decision-making. The complex PDOC care and associated moral dilemmas result in high workload in healthcare professionals. Since 2019, all PDOC patients in the Netherlands have access to intensive neurorehabilitation up to 2 years post-injury provided by one rehabilitation center and four specialized nursing homes. Systematic monitoring of quantitative rehabilitation data within this novel chain of care is done in a study called DOCTOR. The optimization of tailored PDOC care, however, demands a better understanding of the impact of PDOC on patients, their families and healthcare professionals and their views on rehabilitation outcomes, end-of-life decisions and quality of dying. The True Outcomes of PDOC (TOPDOC) study aims to gain insight in the qualitative outcomes of PDOC rehabilitation and impact of PDOC on patients, their families and healthcare professionals.

METHODS

Nationwide multicenter prospective cohort study in the settings of early and prolonged intensive neurorehabilitation with a two-year follow-up period, involving three study populations: PDOC patients > 16 years, patients' family members and healthcare professionals involved in PDOC care. Families' and healthcare professionals' views on quality of rehabilitation outcomes, end-of-life decisions and dying will be qualitatively assessed using comprehensive questionnaires and in-depth interviews. Ethical dilemmas will be explored by studying moral deliberations. The impact of providing care to PDOC patients on healthcare professionals will be studied in focus groups.

DISCUSSION

To our knowledge, this is the first nationwide study exploring quality of outcomes, end-of-life decisions and dying in PDOC patients and the impact of PDOC in a novel chain of care spanning the first 24 months post-injury in specialized rehabilitation and nursing home settings. Newly acquired knowledge in TOPDOC concerning quality of outcomes in PDOC rehabilitation, ethical aspects and the impact of PDOC will enrich quantitative epidemiological knowledge and outcomes arising from DOCTOR. Together, these projects will contribute to the optimization of centralized PDOC care providing support to PDOC patients, families and healthcare professionals.