Law and DementiaDr. Francis X. Shen, JD, PhD:: Petrie-Flom Center, Harvard Law School:: Harvard MGH Center for Law, Brain & Behavior:: MacArthur Foundation Research Network on Law & Neuroscience:: University of Minnesota Law School

Petrie-Flom Sixth Annual Health Law Year in P/Review

Harvard Law SchoolDecember 12, 2017

Photo by Rene Böhmer on Unsplash

Disclosure Information

Petrie-Flom Center Health Law Year in ReviewDecember 12, 2017

Dr. Francis X. Shen, JD, PhD

Disclosure of Relevant Financial Relationships

I have no financial relationships to disclose.

Disclosure of Off-Label and/or investigative Uses

I will not discuss off label use and/or investigational use in my presentation.

For more:http://clbb.mgh.harvard.edu/elders/

• Bad News & Good News• The Challenge of Market Regulation• The Challenge of Legal Doctrine• The Challenge of Dementia and

Democracy

Law and Dementia:Reviewing 2017 // Previewing 2018

• Bad News & Good News• The Challenge of Market Regulation• The Challenge of Legal Doctrine• The Challenge of Dementia and

Democracy

Law and Dementia:Reviewing 2017 // Previewing 2018

Effective drugs for Alzheimer’s remain elusive.

In the absence of solutions, speculation is rampant.

Solutions? No.

Speculation? Yes.

https://www.express.co.uk/life-style/health/883034/dementia-symptoms-diet-uk-Alzheimer-s-disease

http://abcnews.go.com/Health/marriage-reduce-dementia-risk-researchers-find/story?id=51440361

Source: http://www.newnownext.com/singing-showtunes-proven-to-help-fight-off-dementia-alzheimers-disease/11/2017/

We are making (slow) progress toward a cure.

Better Research,Better Data

Source: https://sciencebusiness.net/healthy-measures/news/who-launches-global-dementia-observatory

Source: http://www.cnn.com/2017/11/13/health/bill-gates-announcement-alzheimers/index.html

It's one of the holy grails of science: a cure for Alzheimer's. Currently, there is no treatment to stop the disease, let alone slow its progression. And billionaire Bill Gates thinks he will change that. "I believe there is a solution," he told me without hesitation.

http://theddfund.com/

Society is Responding

(across the globe)

https://timesofsandiego.com/tech/2017/12/04/study-millennials-increasingly-looking-loved-ones-dementia/

https://www.forbes.com/sites/nextavenue/2017/11/12/memory-cafes-offer-connection-in-dementia/#57e4d63225db

Source: http://www.columbiachronicle.com/metro/article_0a87cb48-d712-11e7-b628-bbaa0561a57f.html

Source: http://www.sandiegouniontribune.com/news/health/sd-no-alzheimers-team-20171205-story.html

Source: https://phys.org/news/2017-11-built-robot-people-dementia.html

• Bad News & Good News• The Challenge of Market Regulation• The Challenge of Legal Doctrine• The Challenge of Dementia and

Democracy

Law and Dementia:Reviewing 2017 // Previewing 2018

MarketRegulation

Source: https://www.nbcnews.com/health/health-news/jellyfish-memory-supplement-prevagen-hoax-ftc-says-n704886

• Bad News & Good News• The Challenge of Market Regulation• The Challenge of Legal Doctrine• The Challenge of Dementia and

Democracy

Law and Dementia:Reviewing 2017 // Previewing 2018

In 2017, legal doctrine around issues such as capacity, competency, and undue influence remained unchanged.

On April 26, 2018, we will begin to revisit these doctrines in light of new neuroscientific insights.

• Bad News & Good News• The Challenge of Market Regulation• The Challenge of Legal Doctrine• The Challenge of Dementia and

Democracy

Law and Dementia:Reviewing 2017 // Previewing 2018

AgingJudges

Source: https://www.fjc.gov/history/exhibits/graphs-and-maps/age-and-experience-judges

Source: https://www.fjc.gov/history/exhibits/graphs-and-maps/age-and-experience-judges

AgingPoliticians

https://newstarget.com/2017-05-01-how-long-before-nanci-pelosi-is-officially-diagnosed-with-alzheimers-or-dementia.html

http://www.independent.co.uk/news/world/americas/us-politics/donald-trump-dementia-early-onset-cnn-ana-navarro-commentator-news-phoenix-rally-a7907696.html

Source: https://www.statnews.com/2017/12/07/donald-trump-brain-specialist-disease/

http://www.slate.com/articles/health_and_science/medical_examiner/2017/12/trump_continues_to_be_accused_of_dementia_let_s_administer_the_mini_mental.html

when the stakes are this high, we can’t turn our backs on these kinds of questions.

So what, exactly, is the problem?

The problem is a combination of five factors:

1. Life tenure: Federal judges have life tenure, and politicians have very significant incumbent advantages.

2. Living longer: Judges and politicians (like everyone else) are living longer than ever before.

3. Not retiring: But (unlike most) judges and politicians don’t want to spend retirement sipping mojitos on the beach.

4. Some But Not All Develop Dementia: We know that some subset of these older judges / politicians are experiencing worse than normal cognitive decline, to the point where they are no longer processing information sufficiently well to execute their job functions.

5. Hard to Identify Dementia in Individual Cases: But (unlike many jobs) it’s hard for us to know if any particular judge or politician is experiencing such cognitive decline, and the extent to which that decline is affecting job performance.

Because we don’t typically have access to relevant data on individual judges and politicians, the public and media are left to guess as to whether a particular judge / politician has dementia.

In 2018, we ought to address this issue.

• Bad News & Good News• The Challenge of Market Regulation• The Challenge of Legal Doctrine• The Challenge of Dementia and

Democracy

Law and Dementia:Reviewing 2017 // Previewing 2018

Extra Slides:

https://www.ft.com/content/8d0db012-cda0-11e7-b781-794ce08b24dc

Source: https://www.ft.com/content/689d1aba-dab6-11e7-a039-c64b1c09b482

Source: https://www.sciencealert.com/brain-training-reduces-dementia-risk-by-almost-30-10-year-study-finds-speed-cognitive