Regulating “Psychosurgery” in the 21st Century

Posted on Monday, November 16, 2015

Jennifer Chandler*

Psychosurgery has a bad name for a good reason.  It is often associated with the mid-20th century prefrontal leucotomy (or lobotomy).  This procedure garnered its inventor, Egon Moniz, the Nobel Prize for medicine in 1949, and it went on to be applied to thousands of people around the world.  In its heyday, the best known promotor of the procedure, Dr. Walter Freeman, travelled widely in his “lobotomobile” performing transorbital lobotomies across the US. 

This crude procedure fell out of favour as a result of its indiscriminate and inappropriate use, growing recognition of its side effects, and the development of anti-psychotic drugs as an alternative.  In addition, concern in the 1960s over the use of psychosurgery as an instrument of social and political control produced a cultural backlash culminating in the enactment of regulation restricting psychosurgery in many jurisdictions in Canada, the United States, the United Kingdom, Australia and New Zealand.  The cultural reflection of these concerns is seen in works such as Ken Kesey’s “One Flew over the Cuckoo’s Nest,” a 1962 novel made into a well-known film starring Jack Nicholson in 1975.

Nowadays, the public in general feels widespread revulsion for the “icepick lobotomy” of the mid-20th century.  At the time, however, patients and families often sought out this treatment, in despair over a perceived lack of therapeutic alternatives.   Nowadays, of course, this procedure is no longer performed.  What is perhaps less well known is that more sophisticated forms of psychosurgery continue for a very small number of patients with very serious illnesses that do not respond to other forms of treatment. 

Deep brain stimulation (the implantation of electrodes within the brain for electrical stimulation) (DBS), which has become well accepted for certain movement disorders, has also reinvigorated the field of psychosurgery. DBS for behavioural and mental disorders is currently a very active area of research.  DBS is believed to be reversible – an advantage over ablative psychosurgery (or psychosurgery producing a brain lesion).  The field of possible applications includes controversial indications such as aggressive behaviour disorders and addiction, as well as eating disorders and even post-traumatic stress disorder. The US Food and Drug Administration has approved DBS devices in the US under its “humanitarian use exemption” for obsessive compulsive disorder.

Given the contemporary “renaissance” of psychosurgery, there are several good reasons to look closely at the issue of regulation.  First, voices from within the functional neurosurgery community warn against an undisciplined approach that might repeat some of the mistakes of psychosurgery’s past, putting patients and the development of potentially promising treatments at risk.  Members of this community recently proposed consensus guidelines to guide the field.  While some may prefer professional guidelines to legal regulation, others want a mandatory regulatory approach.  Second, there are already legal regulatory frameworks in place in many jurisdictions and some of these now seem outdated.

For example, Ontario’s Mental Health Act regulates psychosurgery.  There are at least two problems with the law at present.  First, the definition of psychosurgery is unclear and arbitrary in its scope.  It states that interventions to destroy or interrupt brain tissue or to insert electrodes count as psychosurgery (and are therefore regulated), but interventions that target so-called “organic brain disorders” are not. Over the years, many conditions (e.g. epilepsy) have shifted from being understood as psychiatric to organic in nature, as neuroscientific knowledge has revealed the physical aspects of those conditions.  Even if the distinction between the mental and the physical was a meaningful and stable one, it may fail to achieve an important point of the regulation – to protect vulnerable people.  Whether a behavioural problem flows from an unknown cause or from a known organic cause like a traumatic brain injury, the vulnerability of the patient will likely be the same where the symptoms are the same.  Why would we regulate brain surgery intended to treat the first but not the second?

The second potential problem with Ontario’s law is that it requires first-person consent.  In other words, only patients who are capable of consenting for themselves may access these treatments.  This leaves out those who are incapable of consenting because surrogate consent is not accepted.  This is a way of protecting vulnerable people from the application of invasive treatments, which, experience suggests, may sometimes be applied primarily for the benefit of society and caregivers rather than the patients themselves.  But the paradox is that in protecting vulnerable patients in this way, they are prevented from accessing treatments that everyone else may have. 

The problem is illustrated by nascent research into whether DBS may help people with serious cognitive disabilities who have aggressive behavioural disorders.  These disorders can involve serious problems of self-mutilation and aggression against others, leading to restraints and isolation.  The Ontario law currently forecloses access to DBS for such patients in Ontario (but permits it if their symptoms flow from a known organic brain disorder) because they are likely to be incapable of consenting for themselves.  If DBS for these behavioural problems proves safe and effective, with no or minimal side effects, the exclusion of incapable patients may end up being questioned.  As noted above, unlike ablative psychosurgery, DBS is considered largely reversible, and protecting vulnerable people by forbidding access to DBS may be a harmful sort of protection.  That being said, relying upon treatment teams and surrogate decision-makers to make the right decisions and to ensure that particularly vulnerable patients are protected may be inadequate.  While no approach is perfect, one possible option used in some other jurisdictions is to require court approval before neurosurgery for psychiatric disorders may be performed on people incapable of giving informed consent.  One thing to keep firmly in mind, though, is that despair over the lack of treatment alternatives as well as a beneficent paternalism towards vulnerable patients were important drivers of earlier forms of psychosurgery. To the extent that current hopes for DBS reflect these same drivers, we should tread very carefully in this area.

* Jennifer Chandler is a law professor at University of Ottawa and a founding member of both the Centre for Law, Technology and Society and the Centre for Health Law, Policy and Ethics. She also holds the Bertram Loeb Research Chair. She researches the legal and ethical implications of emerging bioscientific knowledge. Visit her website at

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